(1) This application is filed by respondent 1 in Appeal No. 36 of 1954 to direct the appellant to furnish security for costs awarded in the trial Court and for costs to be incurred in the High Court.
(2) The provision of law that governs the application is O. 41, R. 10, Civil P. C. which runs in the following terms :
'The appellate court may, in its discretion, either before the respondent is called upon to appear and answer or atterwards on the application of the respondent, demand from the appellant accruity for the costs of the appeal, or of the orginal suit, or of both.
Provided that the Court shall demand such security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immoveable property within India other than the property (if any) to which the appeal relates.'
(3) The respondent herein filed O. S. No. 2 of 1952 on the file of the Subordinate Judge's Court of Ongole for a declaration of his title to the plaint 'A' Schedule property on the ground that he was adopted by his uncle Chilakamarthi Adinarayana and for other reliefs. The petitioner, who resisted the suit, is the daughter of Adminarayana and she contended that the respondent was not adopted by her father.
She also alleged that the properties were conveyed to her under a registered settlement deed executed by her father in 1951. The Subordinate Judge of Ongole in a careful and elaborate judgment held the adoption was not true and that the petitioner was entitled to the properties under the settlement deed excecuted by her father. The appeal is filed by the alleged adopted son.
(4) I have carefully perused the judgment of the Subordinate Judge and heard arguments addressed by the Advocates for the petitioners and this respondent to satisfy myself as to whether the respondent herein has made out a prima facie case in the appeal. There is no document evidencing the adoption.
There is also no proof, as pointed out by the Subordinate Judge in para 21, that the respondent was living in the house of Adinarayana after the alleged adoption. The truth or otherwise of the adoption depends upon the appreciation of the oral evidence, adduced on behalf of the respondent and the Subordinate Judge, who heared and saw the witness, observed as follows :
'I am of opinion that the oral evidence adduced by the defendant (respondent herein) cannot be relied on to come to the conclusion that Adinarayana adopted defendant 3 on 9.6.1943, in Somavarapad in the house of A.Hanumiah'.
(5) The circumstances also probabilise that the adoption is not true, as Adinarayana had a daughter (the petitioner herein) and grand-sons by her. Some of the documents relied on by the respondent to show that Adinarayana admitted that the respondent was his adopted son were held by Adinarayana was not aware of the recitals contained in those documents.
As Adinarayana happened to be rich and his brother Venkatasubbaiah comparatively poor, the adoption of one of his sons appears to have been set up and to support the case of adoption, certain documents seem to have been brought into existence as pointed out by the Subordinate Judge in para 15. So, in my opinion, the respondent herein has not made out a prima facie case. He has not satisfied me that the Judgment of the Court below is manifestly wrong.
(6) According to the petitioner, the appeal is filed only 'to tease and tire me out, expecting that I would compromise in disgust'. The petitioner alleged in para. 3 that inspite of the several steps taken by her to recover the costs of Rs. 992 -- 8--0 awarded to her by the Subordinate Judge, she was not able to recover any amount.
She also stated that in E. P. No. 102/1953 filed by her, the Subordinate Judge made an order that the respondent should pay the amount of costs decreed in equal instalments of Rs. 10/- per month, The application was therefore, filed for decurity for costs of the trial court amounting to Rs. 992-8-0 and for the costs of the appeal estimated at Rs. 2,000/-.
(7) The respondent herein filed a counter affidavit stating that the object of the application was only to stifle the appeal, that the appeal is not a frivolous one, that the order passed by the executing court enabling him to pay the decree for costs in instalments of Rs. 10/-, is an equitable arrangement binding upon the petitioner, that the present application was made only to circumvent the order passed by the executing court and that his share in the properties of his natural family would be sufficient to cover the decree for costs.
(8) The main contention that was urged by the learned Advocate for the respondent was that his client's poverty was not a sufficient ground to direct security to be furnished under the provisions of O. 41, R. 10. Civil P. C. In support of that contention he invited my attention to the decisions of the Allahabad High Court under S. 549, Civil P. C. (old), corresponding to O. 41, R. 10 of the present Code, in -- Lakshmichand v. Gatto Bai', 7 All 542 (A) and -- 'Jiwan Ali Beg v. Basammal'. 8 All 203 (FB) (B). Straight J. in delivering the Judgment of the Full Bench stated as follows :
'We are unable to lay down any general rule by which the exercise of the discretion conferred by S. 549, Civil P. C. should be governed ; but we may go so far as to say that the mere fact of the poverty of an appellant, standing by itself, and without reference to any of the general facts of the case under appeal, ought not to be considered sufficient alone to warrant his being required to furnish security for costs.'
Tyrell J. delivered a separate judgment in the following terms :
'Section 549 of the Code prescribes no conditions which absolutely entitle a respondent to an order under the terms of that section requiring the appellant to furnish security for the costs of the appeal, and I should hesitate to import into the provisions of the section any rule either way upon the question whether or not the poverty of an appellant by itself justifies an order requiring him to furnish security for costs.'
In the Order of Reference made to the Full Bench two reliefs of the Court of appeal in England were cited. It is sufficient if I refer, to one of them, namely, -- 'Harlock v. Ashberry', (1881) 19 Ch D 84 (C), which sets out the law obtaining in England on this point. Lush L. J., points out the difference that existed between the practice in the Court of Chancery and in Common Law Courts before the Judicature Acts as follows :
'In the Court of Chancery, it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law ; there poverty alone was not considered a sufficient reason for requiring security to be given ...................... The rule under the Judicature Act (R. 15 of O. 58) provides that such security for the costs of any appeal shall be given an may be directed under special circumstances by the Court of appeal.
This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances.'
As regards the practice now obtaining in England, jessel M. R., observed as follows :
'For sometime past it has been the settled practice if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the respondent's costs of the appeal if it should be unsuccessful. The amount is generally very moderate and ofter turns out to be a good deal less than the actual costs.'
(9) The learned Advocate for the respondent drew my attention to two decisions of the Bombay High Court in -- 'Ahmal v. Shaik Issa', 13 Bom 458 (D) and -- 'Ratan Chand Daya Chand v. Damji Dharsey', AIR 1923 Bom 399 (E). It is not necessary for me to discuss these cases as there is a rule framed by the Bombay High Court that an appellant shall, with the Memorandum of Appeal deposit into Court a sum of Rs. 500-0-0 as security for the costs of the respondent in the appeal.
The question taht arose in those cases was whether it was open to the respondent to demand any further security for costs in addition to the amount deposited as per the rule.
(10) So far as the Calcutta High Court is concerned, it is sufficient if I refer to -- 'Birendranath v. Mt. Begum Jan Zada', AIR 1931 Cal 40 (F), wherein Rankin C. J., refers to the decisions of English Courts for the purpose of laying down how the discretion of the appellate Court should be exercised under O. 41, R. 10, Civil P. C. The learned C. J. made and Order for security on the ground that the appellant has not paid the respondent's costs in the Lower Court and costs awarded against her in other suits.
Mulla in his Commentary on 'Civil Procedure Code' 12th Edn. refers at page 1195 to all the decisions bearing on this question as to how the discretion under O. 41, R. 10 should be exercised.
(11) There remains only one Bench decision of the Madras High Court to be referred to in this connection. Vendatasubba Rao J. who delivered the judgment in -- 'A. Kuttoossa v. M. K. Kunhamma', AIR 1938, Mad 380 (G) laid down that while the appellant's poverty by itself would not be sufficient to warrant his being required to furnish the security, it does not mean 'that the appellant can rely upon his own poverty as being an important or decisive factor and resist the application on that grounds'.
He further held that the respondent should be prompt in applying for security for costs and that the mere fact that the effect of ordering security for costs might have the effect of stiffing an appeal was not a sufficient ground to dismiss an application under O. 41, R. 10. There is no doubt that if the appellant is a puppet in the hands of others or is merely a nominal party acting on behalf of others, who are keeping themselves behind the scene, security for costs might be ordered, as held in -- 'Raghunath Das v. Sheokumar Missir', AIR 1921 Pat 233 (1) (H) and -- 'Ratanchand Daya Chand v. Damji Dharsey (E)'. It is also clear that secuirty for costs may not be ordered as pointed out by Venkatasubba Rao J., at pages 380-381 as follows :
'Where the liberty of the appellant is in question or where highly penal consequences will be entailed upon him by the Order appealed against the Court as a general rule will refuse to order security for costs ; that seems to be the true doctrine. Where the appeal raises grave issues which vitally affects the appellant's position, the Courts may well refuse to make an order which will have the effect of stifling the appeal although circumstances may exist which normally would justify an Order for security.'
Vide also the decision of Mack J. in -- 'Ramaraju Gounder v. Molayan', : AIR1954Mad881 (I). One other case which was referred to by the learned Advocate for the respondent was the decision in -- 'Hari Ram v. Jowala Mal', AIR 1931 Lah 70 (1) (J) in support of the proposition that the mere fact that an appellant has not paid him in full or in part the costs of the original suit is no ground for calling upon him to furnish security under O. 41, R. 10, Civil P. C., unless his conduct has been shown to be vexatious, that is :
'Such as indicates a wilful determination on his part not to obey the order of the Court in respect of costs.'
(12) To sum up, the practice that obtains in England after the passing of the Judicature Act. is an pointed out by Jessel M. R., to direct security for costs to be given by an appellant who would be unable through poverty to pay the respondent's costs of the appeal if it should be unsuccessful. The High Courts of Allahabad and Bombay have taken the view that poverty of an appellant by itself does not justify an order requiring the appellant to furnish security for costs.
Though the Calcutta High Court took the same view as the High Courts of Allahabad and Bombay in the earlier cases Rankin C. J., struck a different note and preferred to follow the 'English practice. The view taken by the Madras High Court is only a via media between the view expressed by the High Courts of Allahabad and Bombay and the view of the English Courts followed by the Calcutta High Court. In the language of Venkatasubba Rao J. in -- 'AIR 1938 Mad 380 (G)', the legal position is as follows :
'The proposition is well established that the appellant's poverty by itself would not be sufficient to warrant his being required to furnish security. That has not been seriously disputed here, but surely that does not mean that the appellant can rely upon his own poverty as being an important or decisive factor and resist the application on that ground.'
Or, in other words, poverty by itself is neither a ground for dismissing nor ordering an application for security for costs. In view of the conflicting decisions referred to supra the proper course appears to be to address myself to the terms of O.41, R. 10, Civil P. C. Which are very wide and which leave an unfettered discretion to be exercised by the appellate Court.
Both the interests of the appellant and respondent have to be secured or safeguarded by the appellate Court. The respondent who has succeeded in the suit ought not to be harassed by a poor litigant and deprived of his costs of suit and appeal. At the same time, the poor litigant, who is aggrieved by a manifestly wrong judgment of the trial Court, ought not to be prevented from prosecuting such an appeal by an oppressive order requiring him to furnish security for costs.
The discretion should be judicially exercised on the facts of each particular case. I shall, therefore, proceed to consider the facts of this case. and decide whether security for costs should be ordered or not.
(13) As already stated, the appellant has not established a prima facie case in appeal. He is merely setting up his adoption to defeat the lawful rights of the petitioner herein, that is. Adinarayana's daughter. The appeal is in my view not filed bona fide, but only to coerce the petitioner to enter into a compromise. His father and other brothers are possibly behind the scene and conducting the litigation.
The petitioner's interests have also to be adequately safeguarded. She has not been able to realise the costs awarded to her by the trial court. The order passed by the executing court directing the payment of costs decreed in equal instalments of Rs. 10/- per month is, in my opinion, not an equitable arrangement, but a most inequitable order as the petitioner will not be in a position to realise the full amount of the decree for costs for at least eight years.
The respondent stated that he is entitled to a share in the natural family if his adoption is not true and that the petitioner would be in a position to realise the amount of costs from the share. If so, he is not really poor, and is certainly in a position to furnish adequate security for costs.
(14) In the circumstances of the case, I think it is just and proper that he should be directed to furnish security for the costs of suit i.e., Rs. 992-8-0 an also for an equal sum being the possible costs of appeal. The sum of Rs. 2,000/- mentioned in the affidavit as the estimated costs of appeal is, in my opinion, excessive.
(15) In the result, I direct that the respondent in this petition should furnish security for a sum of Rs. 1,985/- to the satisfaction of the Subordinate Judge of Ongole within a period of three months from today. It is open to the respondent to offer by way of security his individed share in his natural family.
(16) Order accodingly.