048-NLR-NLR-V-60-PATHINAYAKE-Appellant-and-KANNANGARA-Respondent.pdf
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BASNAYAKE, C.J.—Pathinayake v. Kannangara
1958Present: Basnayake, C.J., and de Silva, J.PATHINAYAKE, Appellant, and KANNANGARA, RespondentS. C. 115—D. G. {IiOy.) Galle, 4,124
Appeal—Security for costs of appeal—Deposit of cash—Omission to hypothecate bybond—Rectification—Civil Procedure Code, ss, 156 (3), 157.
Where an appellant deposited a sum of money as security for costs of appealbut omitted to hypothecate it by bond—
Held, that an opportunity should be given under section 756 (3) of the CivilProcedure Code to rectify the omission.
.A.PPEAL from an order of the District Court, Galle.
L. Jayasuriya, for Intervenient-Appellant.
M.Rafeek, with A. Mansoor, for Plaintiff-Respondent.
February 27,1958. Basnayake, C.J.—
Learned counsel for the respondent raises a preliminary objection to thehearing of this appeal on the ground that the bond furnished by theappellant does not hypothecate the money deposited by him to coverthe costs of appeal. His submission is that a clause which is essentialin a bond of this nature to prevent the security for costs being seized byother creditors is omitted from this bond. He submits that there shouldbe a clause to the following effect:—
“ For securing the payment of the said sum of. . . . I do herebymortgage and hypothecate as a primary mortgage the sum of… .deposited to the credit of this case as aforesaid at the Galle Kachcherion. . . . ”
We have examined the bond and find that it is defective in the respectpointed out by learned counsel for the respondent, who asks that theappeal be rejected. Learned counsel for the appellant submits that thisis a case in which he should be given an opportunity, under section 756 (3)of the Civil Procedure Code, of complying with the provisions of theCode. We think this is eminently a case in which that opportunityshould be granted, subject to the payment of the costs of the respondent,which we fix at Rs. 52*50. The record should go back to the originalcourt sp that the appellant may furnish a bond in the proper form.
ns Silva, J.—I agree.
Record sent back.