Raghubar Dayal, J.
1. Ram Bharosey, his brother Misrilal and their mother Mt. Bhoori appealed to the District Judge of Bareilly against the decree for possession passed in favour of Raja Bishwanath Rao Peshwa, opposite party. The appellants applied to be allowed to appeal as paupers. This application was opposed by the opposite party and by the Collector. On the date of hearing, however the Government pleader did not contest the application and the Disirict Judge permitted the appellants to appeal as paupers and also ordered, the applicants to file security for costs in both the Courts. Ram Bharosey and other appellants took time to. furnish security. Their last application for further time was not granted and the appeal was ordered to have stood rejected in default. Against this last order Civil Revn. No. 340 of 1944 was filed.
2. Another Civil Revn. No. 701 of 1945 wag filed on 26th October 1945, against the original order requiring Ram Bharosey and others to file security. It was filed possibly in consequence of the views expressed at the earlier hearings of Civil Revn. No. 340 of 1944.
3. I take up civil, Revn. No. 701 of 1945 for decision first. A preliminary objection is raised for the opposite party that no revision lies against the order requiring security and that the applicants had committed laches in not filing this revision for about two years. A revision against such order can lie if it be held that under law the appellate Court had no power to demand security for costs from a pauper appellant or if it had such power it committed material irregularity in exercising its discretion. In the circumstances of the present case the inordinate delay in filing this revision appears to be due to misunderstanding of the legal position on the part of the applicants.
4. In support of the contention that an appellate Court cannot demand security from a pauper appellant reliance has been placed on the various cases decided by the Calcutta, Bombay, Lahore and Rangoon High Courts. The Rangoon case is Maung Yan Aung v. Oo Mu & Sons ('36) 23 A.I.R. 1936 Rang. 178. It considers the question from the point of view of inconsistency in allowing an appellant to appeal in forma pauperis and in demanding security for costs from him when it is supposed that the order under appeal is fit for appeal and the appellant has no money to pay the necessary court-fees. It does not discuss the question with respect to the non-applicability of Order 41, Rule 10, Civil P.C., to pauper appeals.
5. The earliest Calcutta case is one reported in Nusseroodddeen Biswas v. Ujjul Biswas ('72) 17 W.R. 68. It was a case decided with reference to the provisions of the Civil Procedure Code, Act 8 (viil) of 1859 then in force. Section 376 in chap, ix, Civil P.C., was:
Any party to a suit who may be unable to pay for the stamps required for the prosecution of an appeal from the decision passed therein, may be allowed to appeal as a pauper from such decision subject to all the rules contained in the last preceding chapter and in Ghap. V in so far as they are applicable.
6. The chapter which preceded Chap, ix, that is chap, IX, dealt with appeals in general and in a way corresponded to the present Order 41, Civil P.C. Section 342 in this Chapter corresponded to Rule 10 of Order 41 of the present Civil P.C., and gave discretion to the appellate Court to damand security for costs. In view of the words 'in so for as they are applicable' in Section 367 and the apparent inconsistency in a demand for security for costs from a pauper appellant, it was held in this case that Section 342 was not applicable to pauper appeals. The present Civil Procedure Code does not make the provisions of Order 41, Rule 10 to be subject to the provisions of Order 41 in so far as they are applicable. There is no other provision in the present Civil Procedure Code which should justify a conclusion that Order 41, Rule 10, Civil P.C., is not applicable to pauper appeals, I, therefore, see no justification; for holding in law that the provisions of Order 41, Rule 10, Civil P.C. do not apply to pauper appeals.
7. The other Calcutta cases reported in Mt. Hafizan v. Abdul Karim ('08) 7 C.L.J. 312 and in ('18) 5 A.I.R. 1918 Cal. 618 practically followed the earlier cases. The Lahore case reported in Nazim v. Abdul Hamid ('22) 9 A.I.R. 1922 Lah. 87 just followed the other cases.
8. The Bombay cases are in Bai Luxmi v. Harjiwan Nathu ('12) 36 Bom. 415 and in Khemraj Shri Krishandas v. Kisanlala Surajmal 4 A.I.R. 1917 Bom. 137. In the first Bombay case in Seshayyanagar v. Jaimulavadin ('81) 3 Mad. 66 the plaintiff was ordered to deposit security for costs. Subsequent to this order and prior to the depositing of the security the plain, tiff was allowed to sue as a pauper. It was observed at p. 417:
As the Court will not order a pauper to give security for costs, an order to give security for costs obtained in a suit filed in the ordinary course must cease to operate as regards antecedent coats, if leave is given to continue the suit as a pauper, provided the leave is granted before the time limited for giving security has expired. Otherwise, H is obvious that, although the plaintiff has proved that he is not possessed of more than a hundred rupees, there would be a denial of justice, since the leave to sue as a paper would not save him from having his suit dismissed under the order for giving security.
This case really did not decide the question of law whether a pauper plaintiff or a pauper appellant can be required to deposit security for costs in proper circumstances.
9. The second Bombay case in Khemraj Shri Krishandas v. Kisanlala Surajmal 4 A.I.R. 1917 Bom. 137 does hold that Order 41 does not apply to pauper appeals on the general maxim 'generalia specialibus non derogant' a general rule does not weaken a special rule, as interpreted by English Courts. No reason is given with reference to the provisions of the Civil Procedure Code why Order 41, Civil P.C., Should not apply to pauper appeals. There is no special rule that a pauper appellant cannot be asked to deposit costs.
10. The Madras High Court has taken a different view which is in support of the view I have expressed above. The first case is in Seshayyanagar v. Jaimulavadin ('81) 3 Mad. 66. It was decided in 1880 when Civil Procedure Code, Act X of 1877, was in force. Its provisions were similar to the provisions of the earlier Civil Procedure Code of 1859. It is observed:
We are not prepared to follow the ruling cited in Nusseroodddeen Biswas v. Ujjul Biswas ('72) 17 W.R. 68 and to hold that Section 549, Civil P.C., which empowers the Court, in its discretion, to demand from an appellant security for the costs of the appeal, does not apply to appeals instituted in forma pauperis.
It was indicated that security would, however, be demanded when very special grounds would exist to demand it.
11. Later cases on the point are reported in Saldenha v. Henry Hart 7 A.I.R. 1920 Mad. 318, Narayan Rao v. Veerayya 20 A.I.R. 1933 Mad. 519 and Ramaswami Pillai v. Krishnammal ('35) 9 A.I.R. 1935 Mad. 230. These cases indicate the various circumstances in which security can be demanded.
12. I, therefore, hold that an appellate Court is competent to demand security from pauper appellants. Of course the Court will demand security only when it feels that it is very necessary to demand it. It will have to bear in mind what has been held by the Full Bench of five Judges of this Court in Jiwan Ali Beg v. Basamal ('87) 9 All. 108 (F.B.), that mere poverty of an appellant is no ground to demand security.
13. The learned District Judge did exercise his discretion when after hearing learned Counsel for the parties he demanded security from the appellants. He has, however, not expressed the reasons which weighed with him in his order. It may be that he just passed this order because the parties were not prepared to oppose permission to appeal as paupers if the appellants furnished the necessary security for costs. Such a construction can be put on the order because neither the respondent nor the Collector made any written request for the demand of security from the appellants and because no formal order, except the order on the order-sheet was recorded by the District Judge with respect to his giving the necessary permission to the appellants to appeal in forma pauperis. The learned Counsel for the opposite party has related the history of the litigation which preceded the present suit. It is narrated in the judgment of the first Court. It appears that the plaintiff succeeded to obtain possession over this house in consequence of a decree which he obtained after full contest against one Ganga Prasad, brother of Ram Bharosey. He is said to be the karta of the joint family. It was after the plaintiff had obtained such possession that the applicants took possession of the house according to the plaintiff's allegation. In the circumstances I am not prepared to hold that the learned District Judge did not exercise his discretion properly and committed any material irregularity in the exercise of his jurisdiction, to use his discretion in the matter. I, therefore, reject this revision with costs.
14. In consequence of my above order civil Revision No. 340 of 1944 is to be dismissed. When the applicants failed to furnish the security demanded, the Court had no option but to dismiss the appeal in view of Order 41, Rule 10 Sub-clause (2). I accordingly dismiss this revision with costs.