1959 Present : Weerasooriya, J., and K. D. de Silva, J.

D. G. WIJEMANNE, Appellant, and C. COSTA, Respondent

S. C 76, with Application 210-D. C. Panadura, 4,824

    Appeal-Abatement-Security for costs-Hypothecation by bond prior to acceptance of security by Court-Effect-Officer" before whom the bold may be executed- Civil Procedure Code, 88.756 (1) and (3), 757.

An order abating an appeal would be valid if the bond hypothecating security for costs of appeal in terms of section 756 (J) read with section 757 of the Civil Procedure Code is executed before the security is accepted by the Court. However, if the security given is in cash, relief may be granted under sub-section 20f section 756.

A bond hypothecating security for costs of appeal must be executed before the .Judge or the Secretary or the Chief Clerk, A bond, therefore, hypothecating a sun of money and signed before a Justice of the Peace is not a valid hypothecation.

APPEAL, with application in revision, from an order of the District Court, Panadura.

H. V. Perera, Q.C., with E. A. G. de Silva and M. L. de Silva, for the- defendant-appellant.

C. Thiagalingam, Q.C., with T. P. P. Goonetilleke, for the plaintiff- respondent. .

August 6, 1959. K. D. DE SILVA, J,-

This is an application by the defendant-petitioner for the revision of the order made by the District Judge, Panadura, on April 2, 1957 abating his appeal filed on December 14, 1956 in D. C. Panadura Case No. 4,824. There is also an appeal from this order. It is appeal No. 76 which was taken up with this application. Judgment was entered for the plaintiff: respondent on December 14, 1956. On the same day the defendant-- petitioner tendered a petition of appeal which was accepted by Court, Thereafter his proctors filed on the same day the notice of security calling upon the respondent to take notice that the appellant would on the 4th day of January, 1957 (or so soon thereafter as is possible) move too tender security by depositing in Court to the credit of the case a sum or Rs. 250. Order was made to issue notice of security returnable on 4.1.'57. The appellant's proctors also obtained a deposit note from the. Court on December 12, 1956 to deposit a sum of Rs. 250. This sum was. deposited in the kachcheri and a kachcheri receipt was obtained and filed in Court on the same day. On January 4, 1957 which was the returnable date of the notice of security the proctor for the plaintiff respondent appeared in Court and stated that he was accepting the security. The notice had already been served on him personally. Immediately after- the respondent's proctor expressed his willingness to accept the security tendered, a perfected bond hypothecating the sum of Rs. 250 was filed and order was made to issue notice of appeal. The bond in question was signed by the appellant on December 31,1956 at Colombo in the presence of a Justice of the Peace. On April 2, 1957 the respondent's proctor- moved that the appeal be abated for the reasons set out in the motion. The matter was fixed for inquiry and the learned District Judge having heard Counsel who appeared for each party made his order abating the- appeal for the reasons (I) that the bond had been perfected before the security had been accepted by the Court and (2) the bond in question is. not a valid hypothecation as required by section 757 of the Civil Procedure- Code. The learned District Judge considered himself bound by the decisions in De Silva v. Seenethumma and Ranasinghe v. Pieris on the, question whether a bond perfected before the acceptance of the security by the Court is valid or not. In the former case a Divisional Bench held that it was irregular to accept the security tendered before the. notices of security were served on all the respondents. But, in that case- relief under sub-section 3 of section 756 was granted with reluctance- because material prejudice had not been caused to