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Thakur Das and anr. Vs. Kishori Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All164
AppellantThakur Das and anr.
RespondentKishori Lal
Excerpt:
civil procedure code, section 549 - security for costs--amount of security not fixed--dismissal of appeal--practice. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established..........should be required to give security for the costs of the appeal. no amount was stated as the security required, and oh the 13th may following, a judge of this court made an order on this application in the following words:i am satisfied that the respondent is justified in asking for an order under section 549 of the civil procedure code, and it is ordered accordingly. the security may be lodged at any time before hearing.2. the case has now come on for hearing to-day, and the respondent objects to the hearing, and urges that in consequence of security not having been lodged, this court should reject this appeal.3. in my opinion the objection has no force. i do not find that any order, such as is contemplated in section 549, has been made. that section contemplates an order by which.....
Judgment:

Oldfield, J.

1. A preliminary objection to the hearing of this appeal has been preferred by the respondent, which has reference to Section 549 of the Code. The respondent, it appears, on the 19th April last, applied for an order that the appellants, should be required to give security for the costs of the appeal. No amount was stated as the security required, and oh the 13th May following, a Judge of this Court made an order on this application in the following words:

I am satisfied that the respondent is justified in asking for an order under Section 549 of the Civil Procedure Code, and it is ordered accordingly. The security may be lodged at any time before hearing.

2. The case has now come on for hearing to-day, and the respondent objects to the hearing, and urges that in consequence of security not having been lodged, this Court should reject this appeal.

3. In my opinion the objection has no force. I do not find that any order, such as is contemplated in Section 549, has been made. That section contemplates an order by which some ascertained amount of security is required. In this order no amount of security was named which the appellants bad to provide, the amount being probably left to be fixed on further application, and therefore it became impossible for appellant to furnish security. This arose from the remissness of the respondent in not moving the Court to fix the amount. Further, the respondent, in my opinion, should have obtained an order for rejecting the appeal from the Court which directed security to be furnished under Section 549. The last paragraph of Section 549 seems to contemplate that an order for rejecting the appeal should be obtained from the Court that gave the order to furnish security, and I am inclined to think that the proper course was to have applied to the Judge who passed the order at any time before the case came on for hearing, and it seams to me to be too late when the case is called on for hearing to ask this Court to reject the appeal. The object of furnishing security is, I suppose, that the respondent should not run the risk of loss by incurring costs, but on the day the appeal comes on for hearing [167] those costs have been incurred, or the greater portion of them. On the above ground, I would reject the application.

Brodhurst, J.

4. I entirely concur with my brother Oldfield that this preliminary objection must be rejected.

5. [The appeal was then heard and dismissed.]


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