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Khushaldas Gokaldas and ors. Vs. Chimanlal Kalidas - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtMumbai
Decided On
Reported inAIR1926Bom425
AppellantKhushaldas Gokaldas and ors.
RespondentChimanlal Kalidas
Excerpt:
- - there are other oases in which merely vague allegations are made as to the involved circumstances of a party which may not amount to such special cause as is contemplated by rule 13, sub-rule (2), of order 45. we are not satisfied that such special cause has been shown by the applicants as would induce us to make an order, in the circumstances of this case, that security should be taken from the respondents for the due performance of any order which may be made on appeal to his majesty in council......for the due performance of any order which his majesty in council might make on the appeal to the privy council from the decision of the high court confirming, with certain modifications, the decree of the first class subordinate judge in favour of the plaintiffs. the decree directed that certain money payments should be made to the plaintiffs. the defendants applied to this court for a certificate for leave to appeal to the privy council, and a certificate was refused. the decree was, accordingly, executed and the defendants have paid the amounts mentioned in the decree of this court to the plaintiffs. thereafter the defendants obtained from the privy council leave to appeal. they, then, applied to this court for an order that the respondents should give security for the return of the.....
Judgment:

Macleod, C.J.

1. The original defendants in Suit No. 693 of 1922, in the First Class Subordinate Judge's Court at Ahmedabad, made an application to this Court that security should be taken from the plaintiffs for the due performance of any order which His Majesty in Council might make on the appeal to the Privy Council from the decision of the High Court confirming, with certain modifications, the decree of the First Class Subordinate Judge in favour of the plaintiffs. The decree directed that certain money payments should be made to the plaintiffs. The defendants applied to this Court for a certificate for leave to appeal to the Privy Council, and a certificate was refused. The decree was, accordingly, executed and the defendants have paid the amounts mentioned in the decree of this Court to the plaintiffs. Thereafter the defendants obtained from the Privy Council leave to appeal. They, then, applied to this Court for an order that the respondents should give security for the return of the amount of the decree pending the hearing of the appeal to the Privy Council, considering that they had been ordered to give security as regards the amount of the decree pending the hearing of the appeal to the High Court, The application was opposed on the ground that no special cause had been shown to justify an order of this Court under Sub-section (2) of Rule 13 of Order 45, Civil P.C. The Judges, before whom that application was heard, were of opinion that no special cause had been shown, such as was necessary to justify an order under Sub-rule (2). The main basis on which the application was made was that inasmuch as security was furnished without demur in regard to the appeal to the High Court, the same security should also be given by the respondents, pending the appeal to the Privy Council. But that overlooked the necessity which the Legislature had imposed of showing some special cause, and the mere fact that the opponents had furnished such security while the first appeal was pending was not in itself a sufficient reason for ordering that security should then be given.

2. The applicants applied for further time for filing an affidavit showing special cause, and that was refused. An affidavit was then filed by the applicants on August 28, on which the present rule was granted, alleging that the respondents were not substantial parties and were in involved circumstances. A point was taken that under Order 45, Rule 13, the Court can have no jurisdiction to direct security to be given once the decree has been executed. We think, however, the decision in Mt. Jariut-ool-Butool v. Mt. Hoseinee Begam [1865] 10 M.I.A. is decisive on that point. In that case a decree had been passed directing possession of the property to be given to the respondent, and that decree was executed without taking security from the respondent. An application was then made to the Sudder Dewanny Adawlut to take security from the party in whose favour the judgment had been made for the due performance of such order or decree as Her Majesty might think fit to make on the appeal as prescribed by Bengal Regulation XVI of 1797, Section 4. Various applications were made to the Sudder Dewanny Adawlut with a view to security being taken from the respondent, but such applications were rejected. A petition was then filed before the Privy Council, and their Lordships said (pp. 201. 202):

On examining the Regulations find considering the nature of the case, they are of opinion, that an order may be made upon this application. At the same time, they think the proper order to be made should be one which should leave it, as far as possible, in the discretion of the Sudder Dewanny Adawlut as to what proceedings, or what steps, should be taken; and their Lordships propose, therefore, to make the order in this form : Their Lordships, being of opinion that it is expedient that sufficient security should be taken from the Respondent for the due performance of such order and decree as Her Majesty may make on this appeal, and that it is competent to the Suddar Dewanny Adawlut to require such security to be given, or otherwise to provide for the protection and security of the property in question pending this appeal not with standing that execution had issued before this appeal was allowed; and that the appellant be at liberty to apply to the Sudder Dewanny Adawlut for such security to be given, or such provision to be made, as she may admit.

3. It has been argued that the direction in Order 45, Rule 13, Sub-rule (1), that

Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed unless the Court otherwise directs,

prevents the application of the decision of the Privy Council to which have just referred. It seems to mi that the ordinary result of a decree bains; passed is that it 'shall be unconditionally executed unless the Court otherwise directs,' and the effect of the decision in Mt. Jariut-ool's case [1865] 10 M.I.A. 196 is in no way affected by those words. Speaking generally, if an application is made to stay execution, then the decree will not be executed on the application of the decree-holder without security being taken. The only question is whether, if a decree has been executed, and thereafter an appeal to the Privy Council is admitted, the Court may direct security from the respondent for the due performance of any order which may be made by His Majesty in Council in consequence of the appeal.

4. But it must be noted that there is a difference between a decree which directs the payment of money and a decree which directs possession of property to be Mt. handed over to a successful party. In Jariut-ool's case [1865] 10 M.I.A. 196 the Sudder Dewanny Adawlut was held to be competent either to require security to be given, or otherwise provide for the protection and security of the property in question pending 1 the appeal. The question would arise, what could be done in the case of a decree for money which had been duly executed, supposing the Court directed security to be given, and security was not given? The answer would be, that, if the respondent had recovered the money by execution and declined to give security, the Court could deal with him in contempt. With regard to a decree for possession of property, it would be competent to the Court, if no security is furnished according to the order made, to appoint a receiver of the property and so take the property in its own charge.

5. We think, therefore, there is no fundamental objection to this application being granted. The question is, whether, on the merits, a case has been made out for giving security. It is alleged by the applicants that the respondents are in involved circumstances, and would not be in a position to repay what they have already received under a decree of this Court, if the appeal was successful. It would be extremely difficult for this Court to enter into an inquiry as to the solvency or insolvency of a party. There may be cases in which it would be an easy matter for an applicant to show by an affidavit that a party was in such involved circumstances that he could not possibly be expected to repay the amount already received by him, if the appeal was successful. There are other oases in which merely vague allegations are made as to the involved circumstances of a party which may not amount to such special cause as is contemplated by Rule 13, Sub-rule (2), of Order 45. We are not satisfied that such special cause has been shown by the applicants as would induce us to make an order, in the circumstances of this case, that security should be taken from the respondents for the due performance of any order which may be made on appeal to His Majesty in Council.

6. The rule, therefore, will be discharged with costs.


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