1941 Present: Hearne and Nihill JJ.

MOHAMED v. CONDRAD.

173-D. C. Colombo, 4,235.

Appeal- Failure to give notice of security-Alleged waiver by respondent's proctor-Subsequent waiver is no excuse-Civil procedure Code, s. 756.

On March 27, 1941, the appellant tendered his petition of appeal but he did not forthwith give notice that he would on a specified' date tender security for respondent's costs. On April 4 the appellant moved the Court, by consent of the respondent's proctor for leave to deposit a sum of money as security. This motion bore on the face of it, over the signature of the respondent's proctor, the words" Received notice, I consent ".

Held, that there had been no waiver of security by respondent.

Held, further, that even if there had been a waiver on April 4, it would not cure the failure to comply with an essential requirement of the section on March 27 which would abate the appeal.

As no notice was given to appellants' Counsel of the preliminary objection, the appeal was rejected without costs.

APPEAL from a judgment of the District Judge of Colombo..

N. E. Weerasooria, K.C. (with him Ivor Misso), for plaintiff, appellant.

S. Subramaniam for defendant, respondent.

Cur. adv. vult.

December 9, 1941. NIHILL J.

A preliminary objection has been taken to the hearing of this appeal on the ground it is not properly before this Court as it must be held to have abated in the Court below for want of conformity with an essential' requirement of section 756 of the Civil Procedure Code.

The facts on which the objection has been taken are as follows on March 27, 1941, the appellant tendered his petition of appeal. He did not, however, forthwith give notice to the respoJ1Cicnt that he would on a specified date tender security for the respondent's costs. On April 4, however, the appellant moved the Court by consent of the respondent's Doctor for leave to deposit Rs. 75 as security for the respondent's cost. This motion bears on the face of it over the signature of 4the respondent's proctor the words" Received notice and I consent ".

It is now chart following the decision of five Judges in de Silva v. Seenathumma[41 N. L. R. 241] that the tendering of notice of, security forthwith is an essential requirement of section 756, and the judgment of Soertsz J., with which the other learned Judges agreed, makes it also clear that where there has been a failure to comply with an essential requirement of the section the Court is not: .empowered by sub-section (3) of the section to grant relief. In the course' of the same judgment reference was made to the judgment of Abrahams C.J. in Zahira Umma v. Abeysinghe[39 N. L. R.84] which was a case decided by a divisional Bench of three Judges. In giving the judgment of that Bench, Abrahams C.J. said: - It sections to me that there are two forms of a breach of section 756 in respect of which this Court ought not to give relief. One is when, whether a material prejudice has been caused or not, non-compliance with one of the terms of section 756 has been made without an excuse, and the other is when, though non-compliance with an essential term may be trivial. a material prejudice has been occasioned ".

In explaining this passage, Soertsz J. said thus:-

" I think I am in a position to say and the context supports the view that when Abrahams C.J. used the words' without an excuse'. he had in mind the practice that obtained in some Courts for; proctors to waive security for costs by arrangement among themselves, and he intended to say that in a case where no notice of security was given in pursuance of that practice, an objection taken in this Court that the letter 01 the law had not been complied with would be overruled and the failure excused, for a party may waive a rule of Civil Procedure intended for his benefit and .such a waiver would stop him from thereafter insisting upon the requirement he had wa