1960 Present. H. N. G. Fernando, J., and Sinnetamby, J.

A. W. M. SAMEEN, Appellant, and P. V. S. ABEYAWICKREMA
et al., Respondents

S. C. 117-D. C. Colombo, 7069/L

    Appeal-Notice of tender-of Security for costs-Obligation of appellant to file it in Court-Civil Procedure Code, 88.356,756.

When notice of tender of security for costs of appeal is given" forthwith " as required by section 756 of the Civil Procedure Code, it must conform to the procedure set out in section 356 of the Code. It must, therefore, be filed in Court and served on the respondent through the Fiscal. This rule is subject only to two qualifications, viz., (1) the Court may, after the notice is duly filed, permit service in some other manner, and (2) notice of tender of security need not be filed when security is waived by the respondent. 

Judgment was entered in the District Court on February 15, 1957. Petition of appeal was filed by the defendant's Proctor on the following day, which happened to be a Saturday. No notice of tendering security for costs of appeal was filed in Court on that day. Instead, the appellant's Proctor took the notice on the same day to the respondent's Proctors' office after 1.00 p.m., by which time the office was closed and there was no one to receive it. On 18th February, which was the following Monday, the notice was submitted to the respondent's Proctors, who made the following endorsement thereon ?Received notice subject to objections ".

Held, that the notice of tender of security was not given " forthwith " in as much as it was not filed in Court on the day on which the petition of appeal was filed. The appeal must accordingly be held t; have abated. If the respondent's Proctors had accepted the notice unreservedly, the respondent would have been estopped from questioning the validity of the  of the notice.

APPEAL from a judgment of the District Court, Colombo.

C. Thiagalingam, Q.C., with E. A. G. de Silva, S. Sharvananda and P. Balavadivel, for defendant-appellant.

H. W. Jayewardene, Q.C., with A. L. Jayasuriya and C. P. Fernando for plaintiff-respondent.

Cur adv. vult.

February 1, 1960. H. N. G. FERNANDO, J.-

During the argument on the preliminary objection taken on behalf of the respondents to this appeal, there seemed to me to be two grounds upon which the objection might fail. In agreeing therefore, with the contrary view expressed by my brother Sinnetamby in his judgment, it is well that I should briefly indicate the reasons which induce me to agree .

When a petition of appeal has. been received by the Court of first, instance, section 756 of the Code requires the petitioner to forthwith  give notice (of security) to the respondents. As long ago as in the year 1920, Bertram C.J. held in Fernando et al. v. Nikulan Appu et al. 1[1 (1920) 22 N. L. R. 1.] that the section intended that the notice should be filed on the same day as the receipt of the petition is verified, and in the present case it is perfectly clear that " the same day" was 16th February 1957, for the petition of appeal was undoubtedly received by the District Judge on that day. That being so, the filing of a notice on 18th February cannot now 00 held to be in compliance with section 756. But Bertram C.J. also pointed out that "forthwith" means ., within a reasonable time from the point of view of the person who is called upon to give the notice ". At first sight, therefore, there is scope for the argument that if the notice is to be 8erved directly on the respondent or his proctor, it will be duly given if served with reasonable promptitude, and that service on the morning of Monday 18th February after an unsuccessful effort at service after "early closing" time on the preceding Saturday was a service " forthwith ". But section 756 does not stand alone, and has to be construed together with other relevant provisions of the Code and with section 356 in particular. The