1934 Present: Akbar J.

JAYAWARDENE v. ABDUL CADER et al.

152-C. R. Colombo, 83,962.

Appeal-Tender of security for respondent's costs-Notice on proctor-Irregularity-Right to relief-Civil Procedure Code, s. 756.

Where notice of tender of security for costs of appeal was sent to the respondent's proctor and was lost in the post,-

Held, that the appellant should be given relief under the provisions of section 756 of the Civil Procedure Code.

THIS was an application for relief under section 756 of the Civil Procedure Code.

H. V. Perera (with him Mahroof ), for petitioners, applicants. Wickremanayake (with him H. W. R. Weerasooria), for respondent.

February 20, 1934. AKBAR J.-

This is an application for relief under the proviso to section 756 of the Civil Procedure Code added by Ordinance No. 42 of 1921. Judgment was delivered by the District Judge against the petitioners on May 8, 1933, and petition of appeal was filed on May 17, 1933.

Under section 756 of the Civil Procedure Code the petitioner has forthwith to give notice that he will on a certain date within the time prescribed by the section tender, security for the respondent's costs of appeal. What took place subsequent to the filing of the petition of appeal has been detailed by Mr. Abdul Cader, proctor, one of the petitioners, in his evidence which has been accepted by the learned Commissioner. This witness stated that he had drafted a motion regarding the security of May 17, and had sent it to the plaintiff's proctor by his clerk who gave evidence, and that the clerk had been unable to meet this proctor although he went on three occasions to his branch office at Hulftsdorp. On May 20 a letter (copy X 1) was posted by him to the

plaintiff's proctor. Letter X 1 stated the fact that on May 17, Mr. Abdul Cader's clerk had failed to see the addressee on three or four occasions and that the clerk had brought back the motion as the addressee was not in his office and that the Court had ordered notice to be served on the addressee on May 19. As there was no time to serve the notice through the Fiscal the addressee was to take notice for May 22. On May 20, 1933, the sum of Rs. 28 was deposited.

The plaintiff's proctor denied that he had received letter X 1 but he admitted that somebody may have come to see him in his office at Hulftsdorp and missed him. Mr. Saravanamuttu, proctor for petitioners, also gave evidence, corroborating Mr. Abdul Cader that a letter (a copy of which is X 1) was typed by his clerk, was signed by him and sent to Mr. Abdul Cader. The learned Commissioner has accepted the evidence of all the proctors. His finding amounts to this, that the plaintiffs proctor was missed by Mr. Abdul Cader's clerk on three occasions on May 17, the day on which the petition of appeal was filed, and that a letter of which X 1 is a copy was posted on May 20 to the plaintiff's proctor, and that the letter did not reach the plaintiff's proctor.

The Commissioner's finding on the evidence is supported by intrinsic evidence furnished by the documents X 1 and the motion of May 17. This motion is dated May 17 and is signed by Mr. Saravanamuttu, proctor for the first and second appellants, and two other proctors on behalf of third, fourth, and fifth appellants. This is the motion which Mr. Abdul Cader's clerk took with him fruitlessly to the office of the plaintiff's proctor.

The learned Commissioner was right in making order that the appeal should abate, as the notice was not served through the Fiscal and he had no power to grant relief. Under section 356 of the Civil Procedure Code all processes of Court have to be issued for service to the Fiscal, unless the Court otherwise directs. That was not done in this case, but Mr. Abdul Cader stated that the practice was for notices of deposit of security and of appeals to be served direct on the proctor of the other side and there is evidence of this