043-NLR-NLR-V-41-DE-SILVA-v.-FRANCINAHAMINE.pdf
DE KRETSER J.—de Silva v. Francinahamine.
191
1939Present: de Kretser J.
DE SILVA v. FRANCINAHAMINE.
42—C. R. Galle, 18,130.
Notice of security for respondents' costs—Service on Proctor—Notice sufficient
—Civil Procedure Code, s. 756.
The service of notice of tender of security for costs of appeal onthe respondents’ Proctor is sufficient compliance with the requirementsof section 756 of the Civil Procedure Code.
Perera v. Hendrick (1 A. C. R. 25) followed.
^^PPEAL from a judgment of the Commissioner of Requests, Galle.
R. C. Fonseka, for plaintiffs, appellants.
S. Barr Kumarakulasingham, for defendants, respondents.
Cur. adv. vult.
May 26, 1939. de Kretser J.—
A preliminary objection is taken on behalf of the respondents, and theobjection is that notice of security tendered was given to the Proctors ofthe contesting parties and not to the parties themselves. The notice sotendered was duly accepted by the Proctors and there is no evidence ofany objection by them to this procedure. The security has been dulyaccepted. The way in which the objection has been urged is this: —Section 756 requires notice to be given to the respondents. Then theprovisions of Chapter 23 relating to the service of process are invoked,and particularly section 356, which says:“ The enactments of the
sections of this Ordinance from section 59 to section 70, both inclusive,relative to the service of such summons shall apply, so far as practicable,to the service of such processes, notices and orders ”. Chapter 8, in whichoccur sections 59 and 70, is devoted to the issue and service of summons,the Code drawing a distinction between summons and other process. Inthe case of summons it is required that a duplicate of summons should betendered to the party affected, and substituted service of summons isallowed only when a service of summons in this way is not practicable.Section 64 makes an exception in favour of cases, in which a defendanthas an agent appointed under section 30 empowered to accept service ora Proctor holding a warrant of attorney under section 31.
192
DE KRETSER J.—de Silva v. Francinahamine.
It is argued therefore that notice should be served personally on theparties and not on the Proctors since they were not persons contemplatedby section 64. So far the argument would be sound but for the fact thatsection 64 is dealing with the service of summons. We are now concernedwith notices. Sections 59 to 70 are only made available in so far as theyare practicable, but we have the express provision of section 29 that anyprocess served on the Proctor of any party relative to the action or appealshall be as effectual for all purposes as if the same had been given to, orserved on, the party in person. This means that summons cannot beserved on a Proctor unless he came within the class contemplated bysections 30 and 31, but once a Proctor has been appointed process may beserved on him.
It should be noted, as I said before, that the Code distinguishes betweensummons and process. The provisions of sections 59 to 70 thereforecannot apply to such a case as this and the objection must therefore fail.Even if there was substance in the objection I should have given reliefunder section 756, as neither the parties nor their Proctors objected tothe procedure adopted and no damage has been caused. I am indebtedto Mr. L. A. Rajapakse for referring me to the case of Perera v. Hendrickin which it was held that service of notice upon respondents’ Proctorof an application for leave to appeal would be a sufficient service.
Objection overruled. 1
1 A. C. if. p. 35.