Basil Scott, Kt., C.J.
1. In this case it appears that a suit was filed on the Original Side of the Court by the present appellant who was known at the time to be a resident in Hyderabad without immoveable property in British India. The suit was contested and occupied eight days in the hearing. The defendant, however, made no application for security for costs before or at the hearing of the suit in the Original Court.
2. Now that the appellant has filed an appeal and has deposited the prescribed amount according to the rules of this Court, viz., Rs. 500, as security for costs of the appeal, and within a fortnight of the date fixed for the hearing of the appeal the respondent gives notice to the appellant to show cause why he should not deposit in Court Rs. 7,500, as security for both the costs of the appeal and the costs in the lower Court.
3. The contention on behalf of the respondent is that the case is governed by Order XLI, Rule 10, and that as the appellant is residing out of British India, the Court is bound to demand security not only for the costs of the appeal but also for the costs of the original suit.
4. If Order XLI, Rule 10, applied to the case it would not appear to be imperative upon the Court to demand security for the costs both of appeal and the original suit. The section says: 'The appellate Court may, in its discretion,... demand from the appellant security for the costs of the appeal, or of the original suit, or of both. Provided that the Court shall demand such security in all cases in which the appellant is residing out of British India, and is not possessed of any sufficient immoveable property within British India....' But as the security which is previously referred to is security for the costs of the appeal or of the original suit or of both, it is not clear that 'such security' is meant in every case to include costs of 'both'.
5. We are of opinion, however, that this Court sitting on appeal from the original suit is not governed by Order XLI, Rule 10.
6. Section 129 of the Code says:
Notwithstanding anything in this Code, any High Court established under the Indian High Courts Act, 1861, may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.
7. Now the rule in force at the commencement of this Code is No. 725 which provides that with the memorandum of appeal the appellant shall, unless specially exempted by an order of the Court or allowed, to appeal as a pauper, deposit in Court the sum of Rs. 500, as security for the costs of the respondent in the appeal, or if more than one, for the costs of each respondent having different interests.
8. That Rule is imperative unless an order is obtained exempting the appellant and it is a rule inconsistent with the Order XLI, Rule 10.
9. The Rule has always been regarded as the governing Rule with reference to appeals from the Original Side as is apparent from Ahmed bin Shaik Essa Kaliffa v. Shaik Essa tin Kaliffa (1888) 13 Bom. 458, in which Section 549, which is reproduced in Order XLI, Rule 10, was referred to on behalf of the respondent.
10. The appellant having complied with Rule No. 725 and the respondent having abstained from applying for security of the costs of the original hearing, as he could have done, we see no reason why we should exercise our discretion by ordering that the appellant do now give security for the cost of the original hearing. We have been referred to no reported case in which such an order has been made, and we do not think (although we do not doubt our power if it were necessary in the interests of justice to make such an order) that a case has bean made out for such an order at present.
11. We therefore reject the motion.
12. Costs to be costs in the appeal.