1959 Present: Basnayake, C.J., and Pulle, J.

THENUWARA, Appellant, and THENUWARA and others, Respondents

S. C. 126-D. C. Colombo, 16,607/T:

    Appeal-Several respondents-Security for costs of appeal-Notices of tender of security-Point of time at which each of them should be lodged-Failure to observe it-Application for relief-Procedure-Circumstances when relief will be granted-Pender of money as security for costs of appeal-Hypothecation by bond before date of acceptance of security-Regularity-Journal entries-Duty of Judge to be neat and accurate-Civil Procedure Code, Sections 92, 754 (2), 756 (1) and (3), 757, 765 (i).

On 4th September 1957 judgment was entered in the District Court. On Saturday, the 14th September 1957, a petition of appeal and the notices of tender of security were lodged in the office of the District Court and" accepted" by the Judge. There were ten respondents to the appeal, including the petitioner-respondent. The notices of ten4er of security, save the one meant for the petitioner-respondent, were defective because they stated that the appellant would tender security on 19th September 1957 by deposit of Rs. 250 for the costs of the petitioner-respondent only; no notices of tender of security informing the other respondents that security for their costs of appeal would be tendered on 19th September were lodged in the office of the District Court on 14th September.

On Monday, the 16th September 1957, the appellant filed a motion and moved for the issue on each of the respondents of a fresh notice of tendering security in Rs. 250 for the costs of the petitioner-respondent and separate security in the sum of Rs. 250 for the costs of the other respondents.

Held, that the second set of notices of tender of security handed on 16th September 1957 were not tendered " forthwith " within the meaning of section 756 (1) of the Civil Procedure Code inasmuch as they were not given on the same day as the petition of appeal, viz., 14th September 1957. Accordingly, the appeal should be rejected. In such a case, relief under sub-section 3 of section 756 of the Civil Procedure Code cannot be granted.

Where a sum of money is tendered as security for costs of appeal, hypothecation of that sum by bond may take place before the Court makes its order accepting the security.

Objection to the failure to give security in the manner prescribed by section 756 of the Civil Procedure Code should be raised in the Court of trial. If such objection is taken for the first time in the Supreme Court, the respondent will not be awarded his costs.

Per BASNAYAKE, C.J.-(i) A petition of appeal is received by the Court for the purposes of section 756 of the Civil Procedure Code when it is handed to the appropriate officer of the Court at its office and not within a reasonable time after the Court decides whether or not it should refuse to receive it in terms of section 754 (2) of the Code. (ii) The effect of the word " forthwith " in section 756 (1) of the Civil Procedure Code is that notice of tendering security, unless waived, must be tendered or filed on the day on which the petition of appeal is handed to the appropriate officer of the Court. (iii) Sub-section 3 of section 7.56 of the Civil Procedure Code was not designed to give relief in cases in which the acts, omissions, or defects for which relief is sought are deliberate or are due to negligence or could have been avoided with the exercise of such care as Proctors are expected to exercise in the performance of their duties. The applicant for relief must satisfy the Court that the mistake, omission, or defect, was due to causes not within his control and that it was not due to his or his Proctor's negligence or want of care and also that the respondent has not been,

materially prejudiced. (iv) Where application for relief is made under section 756 (3) of the Civil Procedure Code, it is essential for