035-NLR-NLR-V-62-GOONATILLEKE-Appellantand-GOONETILLEKE-and-others-Respondent.pdf
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BASIN"AYAKE, C.J.—OoonetiUeke v. Ooone.tiUe.Tce
1960Present : Basnayake, C.J., and de Silva, J.
GOONETILLEKE, Appellant, and GOONETILLEKE and others,.
Respondents
S. G. 43 Inty.—D. G. Kurunegala, 9645fP
A.ppea.1—Security for costs of appeal—Bond hypothecating it—Execution of it by-appellant's Proctor before another Proctor—Legality—Civil Procedure Code,s. 756.
A bond hypothecating security for costs of appeal executed before a Proctordoes not satisfy the requirements of section 756 of the Civil Procedure Code..
Obiter : A bond given by the appellant’s Proctor in his own name cannot bedeemed to be a bond given by the appellant if the authority conferred by theproxy is an authority to place the name of the appellant to a bond in his ownname.
Appeal
from a judgment of the District Court, Kurunegala.
S. Jaydividereme, Q.G., with T. B. Dissanayake and Annesley Perera^for Plaintiff-Appellant.
H. W. Jayewardene, Q.C., with C. D. S. Siriwardene and C. P. Fernandofor Defendants- Respon dents.
June 30, 1960. Basnayake, O.J.—
A preliminary objection is taken to the hearing of this appeal on theground that the provisions of section 756 of the Civil Procedure Codehave not been complied with, in that the bond hypothecating the securityfor costs of appeal has been executed not before the District Judge but-before another Proctor. It would appear from the decision in Wije-manne v. Gosta (61 N. L. R. 19) that a bond hypothecating security forcosts of appeal executed before a Proctor does not satisfy the requirementsof section 756. Learned counsel for the appellant does not seek to ques-tion the correctness of that decision. As the petitioner has failed to give-the security as provided in section 756 the appeal must be held to have-abated and is therefore rejected.
BASNAYAKE, C.J.—Goonelilleke v. Goonetilleke
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Before we part with this judgment we wish, to observe that apart fromthe defect in its execution the bond itself does not purport to be a bondgiven by the appellant. It reads :
“ Know All Men By These presents that I Damian Adrian BernardRatnayake, Proctor, S. C., on behalf of Ernest George AnthonyGoonetilleke of No. 4 Palm Grove, Colpetty, Colombo, the Plaintiff-Appellant am held and firmly bound unto Don Thomas Abeynayakethe Secretary of the District Court of Kurunegala for the time beingin the sum of Rupees Three Hundred (Rs. 300/-) for which sum to bewell and truly paid to the said Secretary of the District Court of Kuru-negala or to the Secretary of the said Court for the time being I bindmyself my heirs executors and administrators by these presents.
“ And as security for the due payment of the sum of Rupees ThreeHundred (Rs. 300/-) I do hereby specially assign set over and hypo-thecate to and with the said Secretary or with the Secretary of the saidCourt for the time being all that sum of Rupees Three Hundred(Rs. 300/-) deposited by me the said Damian Adrian Bernard Rat-nayake, Proctor, S. C. of Kurunegala, on behalf of the said ErnestGeorge Anthony Goonetilleke ….
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“ In witness whereof I have set my hand at Kurunegala on this23rd day of April 195S.
(Sgd.) D. A. B. RatstayakeProctor for Plaintiff-Appellant.”
This is a bond given by the appellant’s Proctor and not by the appellant.Presumably it was executed under the authority conferred by the Proxythe relevant portion of which reads :—
" … : and every bond or recognizance whatsoever necessary
or needful in the course of proceedings for the prosecution of suchappeal, or for appearance or for the performance of any order or judg-ment of the said Court, for and in my name and as my act and deed,to sign and deliver and before the Supreme Court upon such appeal byvirtue hereof for and in my behalf appear and plead
The authority conferred by the words quoted is an authority to placethe name of the appellant to a bond in his own name. The significantwords are : “ in my name and as my act and deed, to sign and deliver.”Even if the bond was executed in pursuance of this authority it shouldhave been in the appellant’s name and bound him and not his Proctor,and it should have been signed “ Ernest George Anthony Goonetilleke ”by his Proctor D. A. B. Ratnayake.
r>E Silva, J.—I agree.
Appeal rejected.