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Muhammad Abdul Ghafur Khan Vs. the Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All325
AppellantMuhammad Abdul Ghafur Khan
RespondentThe Secretary of State for India in Council and ors.
Excerpt:
civil procedure coda (1908), sections 109 and order xli, rule 10 - dismissal of appeal for default in furnishing security for costs--application for leave to appeal to his majesty in council--'substantial question of law.' - .....will assume for the purposes of our order that the order is a final order. we will also assume (although it is not very clear from the plaint or memorandum of appeal) that the suit out of which the proposed appeal arises related to property of the value of rs. 10,000 or upwards. as the order of this court had the effect of affirming the decree of the court below, we have to see whether or not the appeal involves a substantial question of law. the only question involved in the appeal is whether or not this court was justified under the circumstances of the case in ordering the appellant to give security for costs. if the court was justified in ordering security for costs to be given, it had no option tint to reject the appeal when the order for security was not complied with. we find it.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This is an application for leave to appeal to His Majesty in Council. The facts are these. The plaintiff instituted a suit in the Court of the Subordinate Judge of Cawnpore, claiming a declaration of his title to certain property. The suit was dismissed by the court of first instance upon various grounds. The applicant presented an appeal to this Court which was admitted. Subsequently an application was made on behalf of one of the respondents that the appellant should be ordered be give security for the costs of the appeal and also of the court below. By an order, dated the 28th of June, 1913, this Court was pleased to order that the plaintiff should furnish security within one month. Security not having been furnished, this Court, on the 30th of July, 1913, dismissed the appeal on the ground that security had not been furnished in compliance with its order. This order was passed under the provisions of Order XLI, Rule 10, Sub-rule (2), The applicant now seeks to obtain leave to appeal from this order.

2. We will assume for the purposes of our order that the order is a final order. We will also assume (although it is not very clear from the plaint or memorandum of appeal) that the suit out of which the proposed appeal arises related to property of the value of Rs. 10,000 or upwards. As the order of this Court had the effect of affirming the decree of the court below, we have to see whether or not the appeal involves a substantial question of law. The only question involved in the appeal is whether or not this Court was justified under the circumstances of the case in ordering the appellant to give security for costs. If the Court was justified in ordering security for costs to be given, it had no option tint to reject the appeal when the order for security was not complied with. We find it quite impossible to certify that the proposed appeal involves a substantial question of law. We, therefore, dismiss the application but make no order as to costs.


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