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Pitamhari Dibya Vs. Chandrasekhar Praharaj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSupreme Court Appeal No. 14 of 1953
Judge
Reported inAIR1954Ori71; 19(1953)CLT520
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 7; Supreme Court Rules, 1950 - Order 12, Rule 3
AppellantPitamhari Dibya
RespondentChandrasekhar Praharaj and ors.
Appellant AdvocateH.Mohapatra and ;R.N. Misra, Advs.
Respondent AdvocateC.M. Aharya, ;V. Pasayat, ;B.N. Misra and ;G.K. Misra, Advs.
Cases ReferredSreeramamurty v. Rama Rao
Excerpt:
.....or such further period, not exceeding 60 days, as the court may upon cause shown allow from the date of the decree complained of, or within 6 weeks from the date off grant of certificate, whichever is the later date(a) furnish security in cash or in government securities for the costs of the respondent, and(b) deposit the amount required to defray the expenses of translating, transcribing, indexing and printing and transmitting to the supreme court a correct copy of the whole record of the suit. a rule of procedure fixing time should ordinarily be held to be obligatory and cannot, without strong reasons, be deemed to be directory unless the power of extending the time is given to the courts -see barker v. 6. it will be noticed that order 45 does not make any provision for failure of..........propriety of taking alternative security at any time after the grant of the certificate under that rule. a rule of procedure fixing time should ordinarily be held to be obligatory and cannot, without strong reasons, be deemed to be directory unless the power of extending the time is given to the courts -- 'see barker v. palmer (1881) 8 q. b. d. 9 (b)'. the corresponding section 602, civil p. c. of the year 1882 was as follows:'if the certificate be granted, the applicant shall,within 6 months from the date of the decreecomplained of, or within 6 weeks from the grantof the certificate, whichever is the later date,(a) give security for the costs of the respondent.'it was held by the judicial committee in -- 'burjore v. mst. bhagana', 11 ind app 7 (pc) co thatthese words relating to the.....
Judgment:

Panigrahi, C.J.

1. In this appeal the petitioner has filed an application under Rule 7 of Order 45, Civil P. C. and prays for permission to give property security in lieu of cash or Government securities. In order fully to appreciate the nature of this application a statement of the facts is necessary. The judgment of this Court in -- 'Chandrasekhar Praharaj v. Pitambari Dibya', A. I. R. 1953 Orissa 315 (A); against which leave to appeal was sought was delivered on 28-1-53, decreeing the suit filed by the opposite parties. On 10-3-53, the petitioner applied for a certificate that the value and nature of the suit fulfilled the requirements of Section 110, Civil P. C. On 21-4-53 a Bench of this Court ordered the issue of a certificate as the requirements of Section 110 had been satisfied and two days later the certificate was signed by the learned Judges who ordered the issue of the same.

The petitioner thereafter moved the Court for stay of execution of the decree and we directed that half the costs incurred by the opposite parties in the lower court as well as In the appeal should be deposited as a condition precedent to the executionof the decree being stayed. On 20-7-53, the petitioner again applied for permission to give property security for the other half of the costs of the opposite party, and was granted one month's time to furnish property security for the unpaid half of the costs. On 6-8-53 the petitioner again applied for extension of time, fixed for depositing the costs of the opposite parties incurred in the lower court and we granted time accordingly till 10-8-53. On that date the petitioner filed the present application under Order 45 Rule 7, Civil P. C., praying that she be permitted to furnish property security for the costs of the respondent in lieu of cash or government securities.

This was, obviously a prayer to substitute property security for the costs of the respondent in the Supreme Court appeal, as contemplated in Order 45, Rule 7; and not the costs of the plaintiff already incurred in this court and in the trial court. The petitioner also tendered a draft security bond executed by one Jagabandhu Misra for Rs. 4000/-to meet the costs of the respondent that may toe awarded by the Supreme Court. There is no separate prayer for extension of time for depositing, or for acceptance of security for depositing to printing costs. Paragraph 11 of the petition states that

'the petitioner is an old lady and has already deposited more than Rs. 3000/- in pursuance of this Honourable Court's orders and that she has to deposit another Rs. 1750/- as estimated printing costs. She is not in a position to raise the necessary funds for furnishing security.'

It is difficult to guess what the petitioner meant by alleging that she was not in a position to raise money for furnishing security. It would appear however, from the order passed by the Court on 18-5-53 that the petitioner made an oral application for extending the time for depositing printing costs. The Court's order No. 15 dated 18-8-53 says: The appellant prays for one month's time for depositing the printing costs.' The petition for substituting property security in lieu of cash or Government security came up on 24-8-53 and was argued on 26-8-53.

2. The questions for consideration are:

(i) Whether the Court has the option to extend the time beyond the period fixed by Order 45 Rule 7 of Civil P. C.: and

(ii) Whether the application filed on 10-8-53 for substitution of property security in place of cash security is competent.

3. Order 45, Rule 7 lays down that

'Where the certificate is granted, the applicant shall, within 90 days or such further period, not exceeding 60 days, as the Court may upon cause shown allow from the date of the decree complained of, or within 6 weeks from the date off grant of certificate, whichever is the later date(a) furnish security in cash or in government securities for the costs of the respondent, and(b) deposit the amount required to defray the expenses of translating, transcribing, indexing and printing and transmitting to the Supreme Court a correct copy of the whole record of the suit...... provided that the Court at the timeof granting the certificate may, after hearing any opposite party who appears, order on the grouse of special hardship that some other form of security may be furnished. Provided further that no adjournment shall be granted to the opposite party to contest the nature of such security.'

The rule clearly lays down that the applicant shall furnish security in cash or in Government securities for the costs of the respondent within 90 daysor within such period thereafter not exceeding 60 days from the date of the decree complained of, or within 6 weeks from the date of grant of certificate whichever is the later date. The certificate was granted on 21-4-53 and the last date for furnishing the security expired on 6-6-53. It is apparent that 90 days expired on 28-4-53 and the period of 150 days after the decree also expired on 28-5-53. The petitioner is undoubtedly entitled to the later date of the two, and should have furnished security on or before 29-6-53.

4. The petitioner now prays for extension of time for furnishing security and for permission to offer property security in lieu of cash or Government security. The second prayer is governed by the first proviso to Rule 7 of Order 45, Civil P. C. which says that the Court at the time of granting the certificate may order on the ground of special hardship that some other form of security may be furnished. On a plain reading of this Rule, it would appear that the Court has no discretion to extend the time beyond 150 days prescribed under that Rule, or to consider the propriety of taking alternative security at any time after the grant of the certificate under that rule. A rule of procedure fixing time should ordinarily be held to be obligatory and cannot, without strong reasons, be deemed to be directory unless the power of extending the time is given to the Courts -- 'See Barker v. Palmer (1881) 8 Q. B. D. 9 (B)'. The corresponding Section 602, Civil P. C. of the year 1882 was as follows:

'If the certificate be granted, the applicant shall,within 6 months from the date of the decreecomplained of, or within 6 weeks from the grantof the certificate, whichever is the later date,(a) give security for the costs of the respondent.'

It was held by the Judicial Committee in -- 'Burjore v. Mst. Bhagana', 11 Ind App 7 (PC) CO thatthese words relating to the giving of security weredirectory only, and were not to be departed from,without cogent reason.

5. The question whether the Court has the power to extend the time under Order 45 Rule 7, Civil P. C. has been the subject-matter of a number of conflicting decisions of the various High Courts and the trend of the latest decisions is in favour of the Court's power to extend the time, provided there are cogent reasons for the exercise of that power. See -- 'Ramayya v. Lakshmayya', AIR 1938 Mad 796 (FB) (D); -- 'Bishnath Singh v. Court of Wards Estate, Sri Ram Chandra Naik Kaliya', A. I. R. 1939 All 299 (PB) (E); -- 'Lachmeshwar Prasad v. Girdharilal', A. I. R. 1939 Pat 667 (FB) (P); -- 'Nilkant Balwant v. Sachidanand Vidya Narsimha', A. I. R. 1927 Bom 217 (PB) (G) and an unreported decision of this Court in S.C.A. No. 9 of 1950 (H)'. The only decision to the contrary is that reported in -- 'Purnendu Nath v. Radha Kanta Jew', A. I. R. 1950 Cal 318 (I) but that decision proceeded on the principle of 'stare decisis' in holding that the Court had no power to extend tile time for making the deposit.

In that case, the amount required to defray the expenses of printing and translating had been deposited and property security was tendered within time, though not at the time of granting the certificate. Their Lordships held, in the peculiar circumstances of that case, that it could allow a different security if it was tendered within the time permitted in Order 45 Rule 7 provided the justice of the case required it. The Bombay High Court also allowed substitution of property security in the case reported in -- 'Revanshidaya Sangaya v. Gud-naya Ningaya', AIR 1931 Bom 278 (J) where the appellant was a minor and the properties of hisnatural father and guardian had been attached in execution of a decree.

That was regarded as a special feature which justified the extension of time. It does not appear from that report whether the offer of property security was made within 150 days or beyond that period, as prescribed in Order 45, Rule 7, Civil P. C. That decision is no authority for the position taken by the petitioner in the instant case that she can come to Court at any time after the grant of the certificate and after the period prescribed by Order 45, Rule 7, Civil P. C.

6. It will be noticed that Order 45 does not make any provision for failure of the appellant to furnish security, as required, within time. None of the rules of the Order says that the certificate shall be cancelled if the deposit is not made within time. ' This power is expressly conferred on the Court by Order 12, Rule 3, Supreme Court Rules, 1950, which says:

'Where an appellant having obtained a certificate from the High Court fails to furnish security or make the deposit required, the Court may, on its own motion or on an application in that behalf made by the respondent's counsel, cancel the certificate or give such directions as to the costs of the appeal and the security entered, into by the appellant as it shall think fit and should make such further order or other order as the justice of the case requires.'

It was strongly urged before us that the words 'make such further order or other order as the justice of the case requires'confer the power of extending the time beyond the limit fixed by Rule 71 of Order 45. This contention, in my opinion, is well founded as we are bound to give effect to the rule of the Supreme Court in preference to the provisions of the Civil Procedure Code when a conflict between the two arises. Section 112, Civil P. C. expressly saves the power of the Supreme Court when it says that

'nothing contained in the Code shall be deemed to interfere with any rules made by the Supreme Court for the time being in force for the presentation of appeals to that Court or their conduct before that Court.'

I am, therefore, inclined to accept the contention that the Court has power to extend the time by virtue of the express provision in Rule 3 of the supreme Court Rules. This rule is but a reproduction of Rule 9 of the Judicial Committee Rules which came into force on the same date, as the amended Rule 7 of Order 45, Civil P. C. It has, therefore, been held in numerous decisions that the Court may, in exceptional cases, extend the time for depositing printing costs of the respondent. But this power should be exercised with great caution only where there are cogent reasons for doing so.

7. It was next urged that the date of the decree referred to in Rule 7 is the date when the decree was actually signed, namely, 10-3-53 and not the date of judgment. 'Date of Decree' is defined in Order 20, Rule 7, Civil P. C. as follows :

'The decree shall bear date, the date on which judgment was pronounced.'

There is no warrant for excluding the time occupied in getting a certified copy of the decree as the language of the rule is clear beyond all doubt and admits of no controversy : see -- 'Harendra Lal v. Sm. Hari Dasi Debi', 14 Cal WN 420 (K). A reference may be made to Order 13, Rule 3, Supreme Court Rules which provides for appeals by special leave and says that the petition shall be accompanied by a certified copy of the decree. Suchexclusion may be allowed for getting a certifiedcopy of the decree in the case of appeals by specialleave. But Rule 7 does not speak of a certified copy of the decree and the prescribed time runs from the date of the decree only. I would, there lore, hold that the time for the deposit expired on 28-6-53, though the Court has the discretion to extend the time in exceptional cases on grounds of hardship.

8. The next question is whether the petitioner is entitled to ask for substitution, of property security for cash security four months after the certificate was granted. The first proviso to Rule 7, Order 45, Civil P. C. confers the power upon the Court to accept some form of security other than cash, and this power is to be exercised 'at the time of granting the certificate.' The reason ofthe rule appears to be to expedite Supreme Court appeals and to minimise the time occupied in satisfying the preliminary requirements. Under the old Section 602, civil P. C., the time allowed was six months for furnishing security for the costs of the respondent and depositing the printing costs. This period was reduced to 90 days with an option to the Court to extend the time upto 60days more. The proviso to Rule 7 was added by the amending Act'26 of 1920.

Similar words are used in other provisions of theCode indicating as to when a power vested in the Court should be exercised. Order 20, Rule 11 says that the Court may, for any sufficient reason, at the time of passing the decree, order that such payment of amount decreed, shall be postponed. Sub-rule (2) of Rule 11 says that this power can be exercised even after the passing of the decree, only with the consent of the decree-holder. Order 21, Rule 11, similarly provides that the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor prior to the preparation of a warrant if he is within the precincts of the Court.

The expression 'at the time of granting the certificate' in the proviso should therefore be read as being limited to the time when the Court orders the issue of a certificate. The language of the Code does not either expressly or by implication, indicate that the Court can exercise this power at any other time subsequent to the grant of the certificate. The further proviso to the rule which says that no adjournment shall be granted to the opposite parties to contest the nature of such security would indicate that ail these matters should be decided at the time of granting the certificate. Having regard to the addition of the proviso in the amended Rule 7, it appears to me that the object of the Legislature was to cut down the period unnecessarily occupied in presenting the appeal to the Supreme Court and to leave no discretion with the court to extend the time beyond what is expressly stated in the proviso. See -- Kamala Kanta Singh v. Bindhumukhi Dassi', A. I. R. 1929, Pat 431 (L); -- 'Ma Sein v. Sit Paung', AIR 1926 Rang 44 (M); -- 'Arunachala Naidu v. S. R. Eala-krishua and Co.', A. I. R. 1925 Mad 449 (N); and'Sreeramamurty v. Rama Rao', 1939-2 Mad LJ 521 (O). I have, therefore, no hesitation in holding that this application filed on 10-8-53, nearly four months after the certificate was granted, is incompetent, and that we have no power to entertain the application at this belated stage.

9. Assuming we could, is this a fit case in which, extension of time should be granted? I am unable to discover any cogent reason for doing so. In the Full Bench case reported in 'AIR 1938 Mad 796 (FB) (D), there was a delay of four days in making the deposit and the circumstance in which thedelay had occurred were beyond the control of thepetitioners who were interested in small portions of the subject-matter of the appeal. The Full Bench accordingly condoned the delay, in --'S. C. A. No. 9 of 1950 (H)', a Bench of this Court excused the delay of two days as the petitioner had the money ready with him and all that he did was to file the challan two days beyond time. In the Full Bench case reported in -- 'A. I. R. 1939 Pat 667 (F)'; the printing costs in respect of -- 'F.'C. A. No. 14 of 1939 had been tendered on the opening day after the long vacation and an application for extension of time to deposit the money was filed on the next day.

In -- 'S. C. A. No. 10 of 1939 which was also decided in that case, the delay was said to be due to the fact that there was some difficulty in obtaining money. The Pull Bench held that this was not a cogent reason why the Court should exercise its discretion and extend the time. The applicant before us says that she expected to raise money by mortgaging certain properties and that the creditor declined to advance a loan at the last moment. This averment, even if true, cannot be accepted as sufficient excuse for the delay in filing the application for substituting property security in place of cash security. The petitioner should have known, when she asked for the certificate, whether she would be able to make the necessary deposit towards printing costs and the costs of the respondent.

If the Court had permitted her to give property security at the time of granting the certificate, it may be that the delay in furnishing security will be viewed with favour by the Court. The sufficiency of the security offered is not admitted and has to be tested which process is bound to occupy more time. The circumstances of the case disclose extreme negligence and inordinate delay on the part of the applicant in prosecuting the appeal.

10. We would accordingly hold that the petitioner has failed to furnish security or make the deposit required and would cancel the certificate already ordered on 21-4-53. The stay of execution of the decree is vacated. We make no order as to costs.

Narasimham, J.

11. I agree.


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