De Silva V. Seenathumma Et Al.,

1940 Present: Howard C.J. and Soertsz, Hearne, Keuneman, and
Wijeyewardene JJ.

DE SILVA v. SEENATHUMMA

et al. 1-D. C. Tangalla, 4,226. 

Appeal-Notice of security for respondents' costs-Two respondents to appeal- Notice served on one and security given within time limit-Delay in service of notice on other-Powers of Supreme Court to grant relief under sub-section (3), Civil Procedure Code, s. 756 (Cap. 86).

The Supreme Court has no power to grant relief, where there has been a failure to comply with an essential requirement of section 756 of the Civil Procedure Code.

The essential requirements of the section are-

(1) Notice of security, unless waived, must be given forthwith, i.e., must be tendered or filed on the day on which the petition of appeal is received by the Court.

(2) A copy of the petition of appeal must be furnished at or before the time the security is accepted and the deposit made.

The other requirements of the section are that security must be tendered and perfected and the deposit made within twenty days from the date of the decree or order appealed against.

Where there has been an omission to tender and perfect security and to make the deposit within twenty days or other omission, mistake, or defect in the course of tendering security or in the course of perfec­ting the appeal generally, relief may be granted in proper cases, if the respondent has not been materially prejudiced by such omission, mistake, or defect.

The judgment of Abrahams C.J. in Zahira Umma v. Abeysinghe (39 N. L. R. 84) explained.

THIS was a case referred to a Bench of five Judges by Howard C.J. in exercise of the powers vested in him under section 51 of the Courts Ordinance.

A preliminary objection was taken to the hearing of the appeal on the ground that it must be held to have abated in the Court below for failure to observe an essential requirement of section 756 of the Civil Procedure Code.

C. C. Rasa-Ratnam (E. B. Wikremanayake with him), for plaintiff, respondent.-Section 756 of the Civil Procedure Code places an imperative obligation upon the appellant to give notice as regards security for costs of appeal to the respondent, and thereby give to the respondent an opportunity to scrutinize such a security on the day appointed in the notice (Form 126) and to raise objections, if any, as to why any such security so tendered should not be accepted and perfected by the Court. (Charles v. Jandris [116 N. L. R. 159.]; Siyadoris Appu v. Abeyanayake [ 2 13 C. L. W. 23.]; Kangany v Ramasamy Rajah [3 21 N. L. R. 106.].)

The failure to comply with this duty cast upon the appellant by the Legislature is a substantial non-compliance with the provisions of section 756 of the Civil Procedure Code, and as such entails the forfeiture of the right of appeal.

Such a failure is fatal and will not be excused. (Silva v. Goonesekere [1 31N. L. R. 184.] ; Saleem v. Yoosoof et al[2 17 C. L. R. 117.] ; Suppramaniam Chettiar v. Senanayake and others [3 16 C. L. W. 41] .)

Further, it is immaterial as to whether any material prejudice has in fact been

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