Skip to content


Revanshidaya Sangaya Vs. Gudnaya Ningaya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 1033 of 1930
Judge
Reported in(1931)33BOMLR487
AppellantRevanshidaya Sangaya
RespondentGudnaya Ningaya
Excerpt:
.....v of 1908), order xlv, rule 7--privy council rule 9--grant of certificate--order for change in form of security--high court--jurisdiction.;the high court has the power, under rule 9 of the privy council rules, quite apart from order xlv, rule 7, of the civil procedure code, to change the form of the security, after the certificate for leave to appeal to the privy council has been granted. - - the registrar should get himself satisfied that the security is sufficient to safeguard the interests of the respondent and should also see to the proper execution of the mortgage. it is open to the court to change the form of the security if the justice of the case so requires even though that cannot be done under the provisions of order xlv, rule 7. in my opinion this court should be..........under rule 7 of order xlv. the court possesses this power by reason of rule 9 of the privy council rules. rule 9 empowers the court to make such further or other order in the premises as, in the opinion of the court, the justice of the ease requires. there is no reason why such further or other order should be confined to an order for extension of time. it is open to the court to change the form of the security if the justice of the case so requires even though that cannot be done under the provisions of order xlv, rule 7. in my opinion this court should be cautious in a matter of this kind and indeed should be reluctant to change the form of security except for good cause, because neither the form of personal bond provided by rule 111 of the appellate side rules nor even a mortgage bond.....
Judgment:

Patkar, J.

1. This is an application to extend the time for making the deposit of Rs, 2,000 and also to change the form of the security required under Clause (a), Order XLV, Rule 7.

2. It is urged on behalf of the opponent, relying on the proviso to Order XLV, Rule 7, and the decision in the case of Arunachala Naidu v. Balkrishna & Co. : AIR1925Mad449 , that it is permissible for the Court at the time of granting the certificate, after hearing the opposite party, to change the form of the security, and that after the certificate has once been granted the Court has no jurisdiction to change the form of the security. The proviso governs Clause (a) of Order XLV, Rule 7. According to the decision of the full bench in Nilkanth Bulwant v Vidya Narrsinha Bharati ILR (1927) 51 Bom. 430, 29 Bom. L.R. 302. the Court can, under Order XLV, Rule 7, of the Civil Procedure Code, read with Rule 9 of the Privy Council Rules, enlarge the time for furnishing security and making the deposit, beyond the period prescribed by Order XLV, Rule 7. Rule 9 of the Privy Council rules appearing at page 44 of the Rules of the High Court of Bombay, Appellate Side, 1929, runs as follows:--

Where an Appellant, having obtained a certificate for the admission of an Appeal, fails to furnish the security or make the deposit required (or apply with duo diligence to the Court for an Order admitting the Appeal), the Court may, on its own motion or on an application in that behalf made by the Respondent, cancel the certificate for the admission of the Appeal, and may give such directions as to the Costs of the Appeal and the security entered into by the Appellant as the Court shall think fit, or make such further or other Order in the premises, as in the opinion of the Court, the justice of the case requires.

3. The reason underlying the decision of the full bench in Nilkanth Balwant v. Vidya Narsinha Bharati authorises a change in the form of the security if the justice of the case requires when the appellant having obtained the certificate for the admission of an appeal fails to furnish the security required. The proviso to Rule 7 of Order XLV lays down that the Court at the time of granting the certificate may. after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished, Rule 9, however, of the Rules prescribed by the Privy Council lays down that if the appellant, having obtained a certificate, fails to furnish the security required, the Court can make such further or other order as the justice of the case requires. The words 'such further and other order' are wide enough to cover an order changing the form of the security. Under Section 112 of the Civil Procedure Code the rule prescribed by the Privy Council prevails notwithstanding the proviso to Rule 7 of Order XLV. We think, therefore, that this Court has jurisdiction not only to extend the time for making the deposit and for furnishing the security, but also to change the form of the security.

4. The next question is whether it is proper, under the circumstances of the present case, to pass an order changing the form of the security. The affidavit on behalf of the applicant shows that he is prepared to pay Rs. 2,000 as deposit for the amount required to defray the expenses of translating, transcribing, indexing and transmitting to His Majesty in Council a correct copy of the whole record under Clause (b) of Rule 7. We order the applicant to make the deposit today. With regard to the change in the form of the security it is stated on behalf of the minor applicant that he is handicapped as the opponents attached all the property of his natural father and guardian with a view to make it impossible for him to prosecute his appeal. On behalf of the opponent an affidavit has been filed to the effect that the property of the natural guardian had already been attached in execution of a decree of Mr. Sorabji Jamshedji Billimoria, advocate. We think, however, that there are sufficient grounds in the present case to pass an order changing the form of the security in the interests of justice. It is urged, however, on behalf of the opponent that the security offered on behalf of the applicant in the shape of a mortgage by one Ningangowda would not be a sufficient security for Rs, 4,000 on account of the costs of the respondent. The applicant in his affidavit states that the property belonging to Ningangowda and proposed to be mortgaged in favour of the Registrar of this Court is worth Rs. 20,000 and is only encumbered to the extent of Rs. 2,000 or Rs. 3,000. On behalf of the opponent an affidavit has been filed stating that the value of the property is less than Rs. 20,000, but the exact value of the property is not stated in the affidavit. An order changing the form of the security was passed in appeal No. 551 of 1922 by this Court, We would, therefore, change the form of the security, and instead of cash or Government securities to the extent of Rs. 4,000, the applicant should give a security for the costs of the respondent in the shape of a mortgage by one Ningangowda alias Nemangowda of his property to the extent of Rs. 4,000 in favour of the Registrar of this Court. The Registrar should get himself satisfied that the security is sufficient to safeguard the interests of the respondent and should also see to the proper execution of the mortgage. In addition to the mortgage to be passed by Ningangowda in favour of the Registrar of this Court, we think that it is desirable that the surety should also pass a personal bond as provided by Rule 111 in the form prescribed at page 46, Appendix B, in the Rules of the High Court of Bombay, Appellate Side, 1929, for recovering the said amount of Rs. 4,000 for the costs of the respondents. Costs of this application will be costs in the Privy Council appeal. The Registrar should see to the proper execution of the mortgage bond and also the personal bond within one month from this day.

Broomfield, J.

1. I agree, The full bench ruling in Nilkanth Balwant v. Vidya Narsinha Bharati ILR (1927) 51 Born. 430, 29 Bom. L.R. 352. is a clear authority for the proposition that this Court has power to extend the time for the furnishing of security whether or no time can be extended under Rule 7 of Order XLV. The Court possesses this power by reason of Rule 9 of the Privy Council Rules. Rule 9 empowers the Court to make such further or other order in the premises as, in the opinion of the Court, the justice of the ease requires. There is no reason why such further or other order should be confined to an order for extension of time. It is open to the Court to change the form of the security if the justice of the case so requires even though that cannot be done under the provisions of Order XLV, Rule 7. In my opinion this Court should be cautious in a matter of this kind and indeed should be reluctant to change the form of security except for good cause, because neither the form of personal bond provided by Rule 111 of the Appellate Side Rules nor even a mortgage bond can be in all respects as effective as the deposit of cash or Government securities. But I am satisfied that this is a case of special hardship; the appellant is a minor and the property of his guardian is under attachment, so that it is impossible for him to furnish the security in the form of cash or Government securities. I, therefore, agree with the order proposed by my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //