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Rayappa Dharneppa Tikannawar Vs. Dharneppa Dharneppa Tikannawar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 403 of 1933
Judge
Reported inAIR1934Bom13; (1933)35BOMLR1114
AppellantRayappa Dharneppa Tikannawar
RespondentDharneppa Dharneppa Tikannawar
Excerpt:
.....the appellant to furnish security for costs in a sum of rs. 1470, and directed a first class subordinate judge to take the security. the judge sent down the papers to the mamlatdar, and acting on the report made by the mamlatdar accepted a surety without considering the evidence offered by the opponent as to unfitness of the surety. on application by the respondent to the high court :-;(1) that there was no express or implied order that the subordinate judge was to decide finally as to the sufficiency of the security, and the high court had not otherwise parted with its plenary power under order xli, rule 10, to demand security; and that consequently the power to control the decisions of the subordinate judge in regard to a matter not vested in him by statute but delegated to him..........application no. 300 of 1932, which was made under order xli, rule 10, civil procedure code. the rule empowers an appellate court to demand security for costs from the appellant, and in our opinion, the appeal court is the final authority for deciding upon the sufficiency or otherwise of the security offered. the mere fact that for reasons of convenience it had delegated to the subordinate judge the duty of taking security does not prevent this court from satisfying itself that the security taken was sufficient or that the security was taken after proper inquiry.5. our attention has been drawn to the cases of owen v. london and north western railway co. (1867) l.r. 3 q.b. 54 and sandback charity trustees v. north staffordshire railway co. (1877) 3 q.b.d. 1 in the first case it was held.....
Judgment:

N.J. Wadia, J.

1. In Civil Application No. 800 of 19S2 the petitioner obtained an order from the High Court directing the opponent to furnish security for costs to the extent of Rs. 1,470. In the ordinary course the First Class Subordinate Judge, Dharwar, was directed to take the security as the opponent was from that district. The order did not expressly state that security was to be furnished to the satisfaction of the lower Court. The learned Subordinate Judge accepted one Basappa Shidlingappa Hoskoti as surety on the report of the Mamlatdar of Hubli that Basappa was solvent to the extent of Rs. 1,470. The petitioner Rayappa had made an application to the Mamlatdar objecting to Basappa being accepted as a surety and asking that certain documentary evidence which he wanted to produce in support of his objection should be admitted. The learned Subordinate Judge made an order below this application that he did not see any reason to interfere with the considered opinion of the Mamlatdar and rejected the application.

2. The petitioner now prays that the Subordinate Judge should be directed to take proper and fresh security from the opponent or that the matter should be sent down to the Subordinate Judge for further inquiry as to the fitness of Basappa with a direction that the petitioner should be allowed to lead evidence.

3. It has been urged before us on behalf of the petitioner that this Court has power to review the order made by the Subordinate Judge accepting the security; and that the learned Subordinate Judge was acting in this ease not in the exercise of any power vested in him by statute but, only as a ministerial officer acting in the exercise of a power delegated to him by this Court.

4. The present application is only a continuation of the Application No. 300 of 1932, which was made under Order XLI, Rule 10, Civil Procedure Code. The rule empowers an appellate Court to demand security for costs from the appellant, and in our opinion, the appeal Court is the final authority for deciding upon the sufficiency or otherwise of the security offered. The mere fact that for reasons of convenience it had delegated to the Subordinate Judge the duty of taking security does not prevent this Court from satisfying itself that the security taken was sufficient or that the security was taken after proper inquiry.

5. Our attention has been drawn to the cases of Owen v. London and North Western Railway Co. (1867) L.R. 3 Q.B. 54 and Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 Q.B.D. 1 In the first case it was held that 'where costs of an inquiry before the sheriff are 'settled by one of the masters of the Court of Queen's Bench', under Section 52 of the Lands Clauses Consolidation Act, 1845, the Court has no jurisdiction over the master's taxation on a motion to review.'' In the second case it was held that' where costs of an inquiry before arbitrators under the Lands Clauses Consolidation Act, 1845. 'are taxed and settled as between the parties by one of the taxing masters of the superior Courts of law' under Section 1 of 32 & 33 Vic. c. 18, the Court has no jurisdiction over the master's taxation on a motion to review,' In both cases the principle underlying the decision was that where the power to tax the costs was conferred on the Master by express legislation, there could be no appeal from his decision. The same view was taken in the earlier case, Ross v. The York, Newcastle and Berwick Railway Company (1849) 18 L.J.N.S.Q.B. 199 where it was held that 'the taxation of costs of an assessment of compensation by a jury under 8 & 9 Vic. 18, Sections 51, 52, is final, and cannot be reviewed by the Court.' In the course of the judgment Wightman J. observed (p. 200): 'Where the Court refers taxation to its officer, it has the power of reviewing, because the power of the officer is delegated to him by the Court, and his act is not effective unless adopted by the Court. The taxation in question was made without any delegation' of power from the Court, and without any express or implied liability to review.' The decision of these three cases supports the view taken above that where an officer whose decision has been appealed against is acting not in the exercise of any power vested in him by statute but only as a subordinate officer of this Court acting in the exercise of powers delegated to him by this Court his decision must be subject to review by this Court.

6. On behalf of the petitioner our attention has been drawn to Hoare & Co. v. Morshead [1903] 2 K.B. 339 in which it was held that 'where under Order XIV, Rule 6, leave to defend an action is given to the defendant on giving security for the amount claimed to the satisfaction of a master, there is no appeal from the decision of the master with regard to the sufficiency of the security tendered.' The case turned upon the terms of Order XIV, Rule 6, of the Rules of the Supreme Court, which provided that 'Leave to defend may be given unconditionally or subject to such terms as to giving security, or time and mode of trial, or otherwise, as the Judge may think fit.' The rule gave power to the Judge to designate a person to ascertain whether the security tendered was sufficient. It was held that under that Order the Judge had designated the Master as the person who was to ascertain whether the security tendered was sufficient and that no appeal could lie from the Master's order. The case appears to us to be distinguishable from the one before us. In the present case there was no express order that the learned Subordinate Judge was to decide finally as to the sufficiency of the security. In our opinion, therefore, this Court has power to review the order made by the learned Subordinate Judge.

7. On the merits, we think that there is sufficient cause for interfering. The learned Subordinate Judge did not make any inquiry himself but merely accepted the report of the Mamlatdar that the surety was solvent to the extent of Rs. 1,470 and refused to hear the evidence offered by the petitioner. Under ordinary circumstances, if the Mamlatdar's report had not been challenged, the Subordinate Judge would have been quite right in acting on that report. But where, as in this case, the petitioner had contended before the learned Subordinate Judge that the view taken by the Mamlatdar was wrong and offered evidence in support of his contention, it would, we think, have been better if the learned Subordinate Judge had considered that evidence before accepting the surety as solvent.

8. We direct that the application should be sent to the learned Subordinate Judge for further inquiry as to the sufficiency of the security offered. In the circumstances of this case it would be well if the Subordinate Judge give the petitioner an opportunity to lead evidence in support of his objection.

Tyabji, J.

9. I agree to the order proposed. The point is small, but it involves matters of principle in regard to which Erle C.J. took different views, and which Willes J. did not hesitate to require further time to consider: The Metropolitan Railway Co. v. Turnham (1863) 14 C.B.N.S. 212

10. The result of the decisions in England during more generations than one may, however, be shortly stated.

11. The Court has necessarily jurisdiction to control its delegated authority. ' The power of the officer is delegated to him by the Court; and his act is not effective unless adopted by the Court:' Boss v. York, Newcastle & Berwick Railway Co. (1849) 18 L.J.N.S.Q.B. 199

12. There are, however, two or three exceptions, or perhaps it would be hotter to speak of them as special cases, that require attention.

13. The delegation may not proceed from the Court, but may be by statutory provisions. Thus, where an officer is by a statute clothed with a power of deciding certain matters, whether or not they are ancillary to matters subject to the Court's jurisdiction, this statutory power may, by the Legislature, be made independent of the Court, and it may be no part of the Court's duty to review or revise the exercise of the statutory power. Such are apparently some of the powers given, or functions exercised, in England under the special Acts relating to railways or in regard to taxation of costs in certain special proceedings.

14. Secondly, the Court may, presumably, itself delegate its powers in such terms as to reserve no power in itself to review the decision arrived at. It may leave the ultimate decision to the discretion of a designated person, in such terms that the designated person's decision is intended to be final, and no residual power is retained to revise or reconsider the question.

15. Thirdly, Hoare & Co. v. Morshead [1903] 2 K.B. 359 presents another aspect. It was there held that the Master's decision under Order XIV, Rule 1, of the Supreme Court was not subject to appeal. The Master, according to the practice in England, exercises the powers conferred by the rule upon the Court: see Annual Practice (1933) p. 169 commenting on the words 'apply to a Judge' which occur in the English rule: 'Masters and District Registrars have for many years exercised the powers conferred by this rule'. The Master is, for the purpose of the rule, the Court. The matter is not placed before the Judge at all: there is no delegation upon the Master of a particular duty to be ultimately discharged by the Judge. The Master has not to report to the Judge. He is not, to use the language of Brett L.J. in Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 Q.B.D.I acting as an officer of the Court to whom the Court delegates what is the business of the Court itself. In such a case there can be no question of the exercise of a delegated power being controlled by the authority that has delegated the power : there is no delegation, no controlling authority, no person exercising a delegated power.

16. The powers of this Court in regard to security for costs are laid down in the Civil Procedure Code, Order XLI, Rule 10. They are plenary powers. No officer is statutorily or otherwise designated who has the duty of determining what shall be sufficient security. It follows, therefore, that it is the Court's function to demand security and that the Court in delegating an ancillary function to one of its officers may or may not reserve revisional powers to itself.

17. The practice of this Court seems to indicate that ordinarily these powers to demand security are not delegated in their entirety.

18. Such applications as the present are not favoured. But our attention has been drawn to cases in which the report in regard to the sufficiency of the security has been interfered with : in particular to Civil Application No. 897 of 1932 in which Mr. Justice Broomfield made an order on December 13, 1932, very similar to that which we are making.

19. Our decision, therefore, follows the existing practice which is not contrary to the principles laid down by the English Courts. We are not in our present order purporting to exercise appellate jurisdiction over the Subordinate Judge. There is no order of any Court with which we are interfering. We are exercising the authority vested in us under Order XLI, Rule 10, by controlling the officer-although that officer is the Subordinate Judge-to whom we have delegated a part of our function in regard to an ancillary matter. Had the Subordinate Judge made an order in an application to himself under Rule 10, and had we been asked to interfere in appeal, Hoare & Co.'s case would have been directly in point.


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