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Lakhmi Chand Vs. Gatto Bai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All542
AppellantLakhmi Chand
RespondentGatto Bai
Excerpt:
practice - appeal--security for costs--civil procedure code, section 549--application that appellant be required to give security--order directing appellant to show cause--absence of counsel to support application--dismissal of application--application to restore case to register--civil procedure code, sections 9899, 647. - - i have already recently expressed my reasons for thinking that section 549 of the civil procedure code was never intended by the legislature to derogate from the right of appeal given by the law to every person who is defeated in a suit in the court of first instance......to a partial extent, and it appears to me that the ratio decidendi favours the argument of mr. hill. mr. boss also cited an older case--jogendro deb roykut v. funindro deb roykut 18 w.r. 102--which again only supports him to a limited extent. the main point decided there was that 'where the appellant was, according to his own statement, a pauper, and it appeared that others presumably able to furnish the necessary security were interested in the matter, the case was considered a proper one in which security should be given,' i do not desire to express any opinion upon the rule here laid down, for although mr. ross touched on circumstances indicating that in the present case also 'others presumably able to furnish the necessary security were interested in the matter,' the application.....
Judgment:

Mahmood, J.

1. I do not think it necessary to ask Mr. Hill to reply, because in my opinion the application must be dismissed with costs. My reasons for this conclusion are that the only ground upon which the application has been made consists of a statement to the effect that the appellant was not pecuniarily in a position to pay the costs of the appeal in this Court, if the appeal should be dismissed. I have already recently expressed my reasons for thinking that Section 549 of the Civil Procedure Code was never intended by the Legislature to derogate from the right of appeal given by the law to every person who is defeated in a suit in the Court of First Instance. At that time I was not aware of the rulings which Mr. Bill has cited to-day, but having now studied those rulings I consider that they go almost further in the same direction than I went on the occasion to which I have referred. One of these rulings is Maneckji Limji Mancherji v. Goolbai I.L.R. 3 Bom. 241 in which Westeopp, C. J., laid down the rule that the mere poverty of an appellant is by itself no sufficient ground for requiring him to give security for the costs of the appeal This case is, I think, on all fours with the present, and the decision seems to me the same in principle as that which was passed in Ross v. Jaques 8 M.&W.; 13, although the point there apparently arose in a suit and not in appeal. Some authorities were also cited by Mr. Boss, the most recent being Seshayyangar v. Jainulavadin I.L.R. 3 Mad. 66 in which the Madras High Court, consisting of the Chief Justice, Sir Charles Tubneb, and Mr. Justice Mdttusami Aiyyar held that Section 549 of the Civil Procedure Code, though not necessarily inapplicable to pauper appeals, should not be applied to such appeals except on special grounds. This decision only supports Mr. Boss' contention to a partial extent, and it appears to me that the ratio decidendi favours the argument of Mr. Hill. Mr. Boss also cited an older case--Jogendro Deb Roykut v. Funindro Deb Roykut 18 W.R. 102--which again only supports him to a limited extent. The main point decided there was that 'where the appellant was, according to his own statement, a pauper, and it appeared that others presumably able to furnish the necessary security were interested in the matter, the case was considered a proper one in which security should be given,' I do not desire to express any opinion upon the rule here laid down, for although Mr. Ross touched on circumstances indicating that in the present case also 'others presumably able to furnish the necessary security were interested in the matter,' the application itself is silent on the point, and, as Mr. Hill has said, he is not called on to answer matters not appearing in the application. I dismiss the application with costs.


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