028-NLR-NLR-V-21-KANGAMY-v.-RAMASAMY-RAJAH.pdf
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1918.
Present: Bertram C.J. and De Sampayo J.
KANGAMY v. RAMASAMY RAJAH165—D. G. Ratnapura, 2,960. __
CivilProcedureCode,t. 766—Notice of tendering security, given tore-
spondent after security was tendered and perfected—Objection – .fatal—DistrictCourtmay refuse to forward appeal • if conditionsof
s. 766 are not complied with—Costs.
It is competent to a District Court to make anorder thatan
appeal hasabatedif the conditions of section 756 have not been
compliedwith, andtorefrainfrom forwardingthe recordto the
Supreme Court.
It is desirable, ifit isin thepower of the respondentto raise the
point inthe District Court, thathe should do sothere.If heprefers
to waituntil thecasecomesto the SupremeCourtbeforetaking
the point, he runs the risk of losing his costs.
'JTHE facts appear from the judgment.
<Bawa, K.C. (with him R. L. Pereira), for the appellant.
A. St- V. Jayawardene (with him Wceraratne), for the respondent.
November 12, 1918. Bertram C.J.—
An objection is taken in tjiis case to the appeal, on the groundthat security was not perfected in the manner prescribed by section756 of the Civil Procedure Code. It is said that the deposit was notgiven, as in that section provided, inasmuch .as the section prescribesas a preliminary to the tendering of the security that notice shouldbe given to the respondent. This must mean an effective notice,whereas in the present case the only- notice that was served uponthe respondent reached him a day after the date on which securitywas tendered and perfected. This is no doubt a highly technical
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objection, but we are bound by the express words of the section. Thefinal paragraph of section 756 has in practice been treated as makingall the provisions at the beginning of section 756 imperative, and aspreventing the Court from regarding them as directory only. Theobjection, therefore, must receive effect.
Mr. Bawa, however, has raised a new point. It is suggestedthat it would not be just that the respondent in this case should beallowed the costs of the appeal, inasmuch as it was open to him tohave taken this point at an early period, and thus to have saved thecosts whioh have been incurred in the preparation for the argumentof the appeal. The final paragraph of section 756 says that if apetitioner has failed to give the security and to make the deposit,as in this section provided, then the petition shall be held to haveabated, and it further says the further proceedings in that sectionprovided shall not be neoessary. Thus, it appears to be open to theCourt, before it issues notice of appeal, or before it forwards therecord to the Supreme Court, to ascertain whether the security hasbeen given in the manner in that section provided.' If it appearsto the Court that the conditions of the section have not been compliedwith, it is not bound to forward the papers to the Supreme Court.A defect in the preliminary proceedings would be broughtto the notice of the respondent as soon as he receives the notice ofappeal. If he has had no notice, or if the security has been inade-quately perfected, he must be aware of this defect at that time. . Itis open to him to move the District Court for an order that thepetition of appeal shall be held to have abated, and it is competentto the District Court to make such an order, and to refrain fromforwarding the record to the Supreme Court. Any order so madeby the District Court is presumably subject to appeal, or, at any rate,to revision. If this course is adopted, technical points, which aresometimes obviously right, can be taken in the District Court, notfor the first time, where parties have come fully prepared to arguethe appeal, and where the point is sometimes only discovered- forthe first time after briefs have been delivered to counsel. In sayingthis, I do not mean to suggest that this point cannot be taken beforethis Court on. the appeal. I, think it clearly can, but I think it isdesirable, if it is in the power of the party to raise the point in theDistrict Court, that he should do so there, and that, if he prefers towait until the case comes to the Supreme Court before taking thepoint, he should then run the risk of losing his costs. The point inthis case, as I say, is extremely technical. It does not appear thatthere is any real substance in the objection, and though it must beallowed, I think it must be allowed without costs.
The appeal is dismissed.
De Sampayo J.—I agree.
1918.
Bbbxbah
O.J.
Kangamy v.RamasamyRajah
Appeal dismissed.