Sivagurunathan V. Doresamy Et Al.,

1951 Present: Basnayake J. and Pulle J.

SIVAGURUNATHAN, Appellant, and DORESAMY et al.,

 Respondents

S. C. 13-D. C. Colombo 4,707/P.

Appeal-Notice of tendering security-Failure to observe proper form-Fatal irregularity-Abatement of appeal-Objection can be taken in Appeal Court-Civil Procedure Code, Section 756 and Form No: 126 in Schedule 1.

The appellant in a partition action served notice of tendering of security on all the respondents to the appeal. In the case of the 7th respondent, however, the notice which was served on her did not include her among those in respect of whose costs the appellant proposed to give security.

Held, that although the bond executed by the appellant secured the costs of all the respondents to the appeal, including the 7th respondent, the omission to give the prescribed notice was a fatal irregularity. A notice of tendering security should inform the respondent on whom it is served that security for that respondent's costs will be tendered.

A Schedule in a Statute is as much a part of the statute and as much an enactment as any other part. The notice of tendering security required by section 756 of the Civil Procedure Code should, therefore, be in the form presented! by Form No. 126 in the First Schedule to the Code.

Held further, that a respondent to an appeal is not precluded from taking-objection to the hearing of the appeal although he could have asked the trial judge to hold that the appeal had abated.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, K.C., with C. Renganathan and A. Nagendra, for the 10th: defendant appellant.

S. J. Kadirgamar, with G. C. S. de Silva, for the 15th to 17th defendants respondents.

H. W. Thambiah, with S. Sharvananda, for the 7th defendant respondent.

E. B. Wikramanayake K.C., with H. W. Jayewardene, for the 8th defendant respondent.

Cur. adv. vult.

FEBRUARY 6, 1951. BASNAYAKE J.-

This is an application for the sale under the Partition Ordinance of a. land called Villiagama Estate in extent 136 acres and 12 perches owned in common by the applicant and seventeen others. Of the defendants the 8th, 10th, and 11th filed a claim praying that the land be partitioned, while the 15th, 16th and 17th who are resident outside the Island disputed the shares allotted to them in the libel. The 1st to 7th, 12th, and 13th defendants took no part in the proceedings. The learned District Judge-decreed a sale of the common property as prayed for. The 10th defendant who is dissatisfied with the learned Judge's apportionment of shares and his order as to costs has appealed.

The appellant served notice of tendering of security on all the respondents. The notices contained the names of all the parties to the action and were addressed to the Proctors of some of the respondents and Personally to the others. In the case of the 7th respondent who takes objection to the appeal being heard, the notice was addressed to the Proctor, and it reads thus:

" Take notice that the petition of appeal presented by the above named 10th defendant-appellant on the 26th day of November, 1948, against the order of the District Court of Colombo dated 15th November, 1948, in the said action having been received by the said Court I will on the 1st day of December, 1948, at 10.45 o'clock in the forenoon or

so soon thereafter move to tender security by depositing a sum of Rs. 500 and by hypothecating the same by bond for any costs which may be incurred by the 8th, and 15th to 17th defendant-respondents in appeal in the premises and will on the said day deposit in Court a sufficient sum of money to cover the expenses of serving notice of appeal on the plaintiff-respondents and defendant-respondents. Copy of petition of appeal annexed. "

It is dated 26th November, 1948, and bears the following endorsement dated December 3, 1948:

" This notice is extended and re-issued for service on the w

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