1954 Present : de Silva, J.

A. D. P. RANASINGHE, Appellant, and H. A. R. PIERIS,
Respondent

S. C. 33-C. R. Gampaha, 5,438

Appeal-Security for costs of appeal-Procedure for furnishing it-Civil Procedure Code, ss. 756 (1) and (3), 757.

A notice of security for costs of appeal given in terms of section 756 of the Civil Procedure Code is not invalid if the amount of security is not specified in it.

Where the security bond was perfected upon its acceptance by an officer of the court and before the security was accepted by the Judge-

Held, that the provisions of sub-section 3 of section 756 of the Civil Procedure Code could not be invoked to cure the defect.

APPEAL from a judgment of the Court of Requests, Gampaha.

N. K. Choksy, Q.C., with A. W. Goonewardene and John de Saram, for the defendant appellant.

H. W. Jayewardene, Q.C., with P. Ranasinghe, for the plaintiff respondent.

Cur. adv. vult.

October 21, 1954. DE SILVA, J.-

This is an appeal from the judgment of the Commissioner of Requests, Gampaha, declaring the plaintiff respondent entitled to a decree for rent, ejectment, and damages. The judgment was delivered on 22nd October 1952. The defendant filed this appeal 2 days later. Along with the petition of appeal he deposited a sum of Rs. 26 as security for costs of appeal.

A preliminary objection was taken to the hearing of this appeal on the ground that it was not properly constituted inasmuch as the provisions of Section 756 had not been complied with. Firstly it was contended that the notice of appeal was not a valid one as the amount of security was not specified in it. This objection was raised in the court below also, but the learned Commissioner held that it was not essential to specify the amount of security in the notice. The Civil Procedure Code provides a specimen form for the purpose of giving notice of security. That is form 126. It is contended on behalf of the appellant that this . form has not been complied with. The relevant part of this form reads ". . . . . . . . ." move to tender security by (mention how) for any costs which may be incurred by you in appeal in the premises etc. " Mr. Jayawardene argues that the words " mention how " appearing in this form require the insertion of the amount of security proposed to be given. I do not think that that interpretation is the only one which can be assigned to these words. It certainly is desirable and convenient to mention the amount of security to be furnished. Section 757 of the Civil Procedure Code provides that security may be given in 2 ways, that is to say, by way of mortgage of immovable property or by the deposit and hypothecation of money. The word " how " appearing in form 126 may therefore refer to the form of security, namely, property or money. In the instant case it was set out in the notice that security would be

tendered by depositing cash. I am satisfied that is sufficient compliance with the requirements of form No. 126. It is conceded by the respondent's counsel that the sum of Rs. 26 tendered as security is the maximum security required in the Court of Requests, Gampaha, in this class of cases.

The 2nd objection urged by Mr. Jayawardene was raised in appeal for the first time. He maintains that the security bond was perfected even before notice of security was served on his client and before the security was accepted by the court. The date of the bond is 24.10. '52 whereas the notice of security was served on the respondent and his proctor only on the 28th and 29th October respectively. Section 756 of the Civil Procedure Code provides that when a petition of appeal is received by the court the petitioner shall forthwith give notice to the respondent that he will, on the date specified in such notice within a period of 14 days from the date of decree, tender security for the respondent's costs of appeal. On the day specified, the respondent is entitled to