Failure to provide security and notice to all respondents, even if no relief claimed, results in non-compliance under the Civil Procedure Code.

1939 Present: de Kretser J.

SUPPRAMANIAM CHETTIAR v. SENANAYAKE et al.

173-C. R. Colombo, 45,706.

Security for costs-Notice to all respondents-Even to those respondents against whom no relief is claimed- Civil Procedure Code , s. 756, sub­section (3). Security for costs and notice of security must be given to all persons who are made respondents to an appeal, even to those against whom no relief is claimed.

Failure to give such security or notice is a non-compliance with the terms of section 756 of the Civil Procedure Code in respect of which relief cannot be granted under sub-section (3) of the section.

APPEAL from a judgment of the Commissioner of Requests, Colombo.

L. A. Rajapakse (with him M. M. I. Kariapper and J. E. Alles), for plaintiff, appellant.

J. R. Jayawardene, for defendants, respondents.

December 1, 1939. DE KRETSER J.-

The appellant sued three persons on a promissory note. A proxy was filed which purported to come from the first and second defendant but was in fact signed by the second defendant alone. The Court required a proxy to be filed from the first defendant and several dates were given, but before the proxy was filed a minute of consent was placed before the Court by which the first and second defendants consented to judgment and asked to be allowed to pay by instalments. The Court was then only concerned, apparently, with the recovery of the stamp duty on the proxy which should have been filed, and that was duly recovered. The proxy remained unsigned by the first defendant. At a late stage the first defendant took objection to the issue of writ against him on the ground that he was a public servant at the time when the note was made and decree entered against him. The objection was upheld. The plaintiff then appealed, making all three defendants respondents to his appeal, and he stated that, though the second and third defendants were made respondents no relief was claimed against them. He then purported to deposit in Court, by a motion dated July 31, a sum of Rs. 26 as security for costs of appeal of the first defendant-respondent,

which seems to have been received in Court on August 2 and to have been minuted against the date August 3; The proctor, who still had no proxy from the first defendant, received notice and had no cause to show. The order appealed from had been made on July 31 and notice had been given not to the respondent but to a person who purported to be his proctor.

No objection to the constitution of the appeal has been taken on this ground, but it is argued that no notice of the tendering of security and no security had been given to the second and third defendants, although they had been made respondents.

Now, in terms of section 756, every person made a respondent is entitled to notice and to such security as the Court orders. In this case the appellant, probably thinking that no security was required for those against whom no relief was claimed, did not serve any notice on them nor tender security, but he has made them respondents, apparently feeling for som