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Mt. Kutika Kuer Vs. Sridhar Misir and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All733
AppellantMt. Kutika Kuer
RespondentSridhar Misir and ors.
Excerpt:
.....would be covered by rule 19, order 41. an appeal is provided from an order of refusal under rule 19, order 41 to re-admit an appeal. the order of the court below clearly shows that the appellant was ordered to furnish security for coats of the respondent to enable him to proceed with his appeal. 4. learned counsel for the appellant contends that his client has now deposited sufficient security for the costs of this court as well as of the court below and that it would be a great hardship if he is not allowed to argue his appeal. at the same time we take the opportunity of expressing our opinion that, considering the serious consequences entailed by an order under section 549, it would be well if the legislature should consider whether it is not advisable to embody in the new code..........appeal which was passed on 13th february 1937. the first question for determination is whether the orders appealed against are appealable. under rule 10, order 41, civil p.c., the appellate court may, in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both. the order passed by the lower appellate court was obviously under this rule. sub-rule (2) provides:where such security is not furnished within such time as the court orders, the court shall reject the appeal.2. the order passed by the court below rejecting the appeal is not a decree within the meaning of section 2, sub-section (2). the order of the court was.....
Judgment:

Mohammad Ismail, J.

1. The facts that have given rise to these connected appeals may be briefly stated. Mt. Kutika Kuer, plaintiff, brought a suit for a declaration that the house described in the plaint was not saleable in execution of the decree in favour of the respondent Sridhar Misir. The suit was dismissed by the trial Court. The plaintiff appealed from the decree of the Court of first instance. At the instance of the respondents on 8th August 1936 the Court directed the appellant to furnish security within a fortnight. It is not necessary to refer to various applications and orders that were made after the passing of the order on 8th August 1936. Ultimately the appellant furnished security of immovable property. The respondent raised objections to the sufficiency of the security and the Court fixed 13th February 1937 for the disposal of the objection. On the date fixed, no one appeared on behalf of the appellant to prove that the security furnished was in compliance with the order of the Court and was sufficient. The appeal was accordingly rejected. The appellant then made an application to the lower Appellate Court for the restoration of her appeal. This application was also dismissed on 5th April 1937. The appellant has now filed first appeal from the order of 5th April 1937 and second appeal from the former order rejecting the appeal which was passed on 13th February 1937. The first question for determination is whether the orders appealed against are appealable. Under Rule 10, Order 41, Civil P.C., the Appellate Court may, in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both. The order passed by the lower Appellate Court was obviously under this Rule. Sub-rule (2) provides:

Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

2. The order passed by the Court below rejecting the appeal is not a decree within the meaning of Section 2, Sub-section (2). The order of the Court was by no means the formal expression of an adjudication which so far as the Court expressing it, conclusively determined the rights of the parties. That being co no appeal is permissible under the Code from an order rejecting the appeal under Order 41, Rule 10, Sub-rule (2). Similarly the order of the Court below is not appealable as an order. An examination of Order 43, Rule 1 will show that an order rejecting an appeal under Order 41, Rule 10 is not one of the orders from which an appeal is allowed. This question was considered by a Full Bench of this Court in Lekha v. Bhauna (1896) 18 All. 101. It was held that:

An order rejecting an appeal under Section 649, Civil P.C., (Order 41, Rule 10) is not appealable either as an order or as a decree.

3. The Full Bench overruled an earlier ruling reported in Siraj-ul-haq v. Khadim Husain (1883) 5 All. 380. For the reasons given above, I hold that the order of 13th February 1937 is not appealable. Now corning to the order of 5th April 1937, I find that this is also not one of the orders mentioned in Order 43, Rule 1. Learned Counsel for the appellant contends that it is in effect an order of dismissal of the appeal for the appellant's default provided by Rule 17, Order 41 of the Act. If this contention is well founded, then the subsequent application for restoration would be covered by Rule 19, Order 41. An appeal is provided from an order of refusal under Rule 19, Order 41 to re-admit an appeal. I however consider the argument of learned Counsel untenable. The date on which the appeal was rejected was not fixed for the hearing of the appeal and therefore it could not be dismissed for the appellant's default under Rule 17. It follows therefore that Rule 19 also is inapplicable. The order of the Court below clearly shows that the appellant was ordered to furnish security for coats of the respondent to enable him to proceed with his appeal. Unless the appellant complied with the order no date of the hearing of the appeal could possibly be fixed. I have no doubt whatsoever that the rejection of the appeal was under Order 41, Rule 10, Sub-rule (2) and not under Rule 17. Under these circumstances the appellant is not entitled to appeal from that order.

4. Learned Counsel for the appellant contends that his client has now deposited sufficient security for the costs of this Court as well as of the Court below and that it would be a great hardship if he is not allowed to argue his appeal. Unfortunately, no power is vested in the Court to allow the appellant to proceed with his appeal. I therefore cannot consider the question of hardship. I however wish to refer to a passage in the judgment of a Bench of this Court in Firozi Begam v. Abdul Latif Khan (1908) 30 All. 143 at page 145:

We are compelled therefore to sustain the preliminary objection. At the same time we take the opportunity of expressing our opinion that, considering the serious consequences entailed by an order under Section 549, it would be well if the Legislature should consider whether it is not advisable to embody in the new Code of Civil Procedure some provision analogous to that contained in para. 2 of Section 381 and to give a right of appeal from orders passed under Section 549 (Order 41, Rule 10).

5. I respectfully agree with the observations made by the learned Judges. In the result I dismiss the appeals with costs.


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