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Poornananthachi Vs. T.S. Gopalaswami Odayar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1932)62MLJ665
AppellantPoornananthachi
RespondentT.S. Gopalaswami Odayar and ors.
Cases ReferredRam Dhan v. Prag Nafain.
Excerpt:
.....therefore in contrast with order 45, rules 10 and 11. he is further of opinion that rule 9 of the privy council rules is in conflict with order 45, rule 7, because upon a construction of it the high court has power to extend the time. suppose, therefore, the 90 days from the date of the decree have passed without security being furnished, rule 9 of the privy council rules, it seems to me, gives nothing more than the right to cancel the certificate or, if it can be read as giving the court any power to extend the time then if good cause is shown, to extend the time for furnishing the security, provided the extended time does not exceed 60 days. , as significant, but, with all respect, the privy council never considered the point and it may well be that the point was never taken by the..........for an extension of time by two months for furnishing security for costs. leave to appeal to the privy council was granted on the 16th october, 1931, and the petitioner was directed under order 45, rule 7 of the code of civil procedure to furnish security for costs of the respondent within six weeks from the date of the granting of the certificate. the last day for furnishing security was the 27th november, 1931. by that date the petitioner had been unable to furnish the security and on the 30th november, 1931, she presented this petition praying for an extension of time by two months.2. the petition is supported by the affidavit of the kariasian of the petitioner. the two reasons for the granting of the petition set out in that affidavit are: (1) the inability of the petitioner to.....
Judgment:
ORDER

1. This is an application for an extension of time by two months for furnishing security for costs. Leave to appeal to the Privy Council was granted on the 16th October, 1931, and the petitioner was directed under Order 45, Rule 7 of the Code of Civil Procedure to furnish security for costs of the respondent within six weeks from the date of the granting of the certificate. The last day for furnishing security was the 27th November, 1931. By that date the petitioner had been unable to furnish the security and on the 30th November, 1931, she presented this petition praying for an extension of time by two months.

2. The petition is supported by the affidavit of the kariasian of the petitioner. The two reasons for the granting of the petition set out in that affidavit are: (1) the inability of the petitioner to furnish the security owing to her difficulty in getting the necessary funds, and (2) because the petitioner is an old widow and for the two months previous to the presentation: of the petition had been ill and confined to her bed. With regard to the former reason, it is stated that the sum awarded by the Appellate Court to the petitioner for her maintenance, namely, Rs. 175 per mensem, is hardly sufficient for her maintenance and that the sum of Rs. 2,500 which she drew from the Lower Court was utilised to pay off sundry creditors and that with the strictest economy she had only been able to save Rs. 1,500 and had not been able to raise the balance of Rs. 3,000, the amount of the security ordered. It is also stated on her behalf that after this petition was filed her advocate tendered' to the Registrar the full amount of the security ordered but that, as the time for furnishing it had expired, the Registrar refused to eceive it and that the money is now in the hands of her advocate awaiting the disposal of the petition. The agent of the guardian of the minor 5th respondent has put in a counter-affidavit in which it is denied that the petitioner had been ill' and confined to her bed for two months and the deponent states that he had occasion to meet her during the time when it is alleged she was ill and that she was in good health. It is also stated that the petitioner drew from the Receiver in the Lower 'Court Rs. 10,919-11-0 under the order of that Court, dated the 11th November, 1930, and that the allegation that she discharged debts is false. It is also pointed out that the judgment of the High Court in the appeal was delivered on the 1st May, 1930, that the application for leave to appeal to the Privy Council was filed on the 2nd December, 1930, and that leave to appeal was gsanteS on the 16th October, 1931. It is; also stated that when leave was applied for it was claimed for the petitioner that as the decree of this Court reversed the decree of the Lower Court and the value of the appeal was more than Rs. 10,000, she was entitled to leave as of right. It is also alleged that the application for leave to appeal was really a move to obstruct the final decree proceedings of the Lower 'Court and that the real object was to get a stay of the decree of this Court. No stay was obtained, however, and the partition and division of the property was proceeded with. In an affidavit in reply to this counter-affidavit sworn to by ,the petitioner she denies the allegation in the counter-affidavit that she was in good health and further states that the money received by her from the Lower Court was in fact used for other necessary purposes, namely, payment of debts incurred for her maintenance for several years and the expenses of the litigation.

3. Taking the matters deposed to in these affidavits, it seems to me clear that this petition must fail upon the merits and that no extension of time should be granted to the petitioner. With regard to the petitioner's alleged ill-health she has made no attempt, and none has been made on her behalf, to substantiate this allegation. She merely contents herself with repeating it in her reply-affidavit. There is no certificate by her medical attendant, if shte had one, and she does not even state that she had. Nor is there any affidavit by any independent person in support of her allegation. With regard to her inability to raise the necessary funds, that is not a ground in my view for granting' an extension of time particularly after such a long time has elapsed since the decree; and it has been held in a number of cases that this alleged reason is not sufficient to justify any extension of time for furnishing such security. In my view, therefore, on the facts, this petition must be dismissed.

4. Apart from the merits the question whether the High Court has the power to extend the time for furnishing security beyond the time set out in Order 45, Rule 7, was very fully argued; and in view of some recent decisions of this High Court and one in, Bombay which are in conflict with other decisions of this High Court and other High Courts, in my view, it is most desirable that any doubt that there may be should be finally removed' and that this matter should receive the consideration of a Full Bench on the next occasion on which this question arises.' In view of our rejection of this petition on the merits, I do not think it necessary to do what I at first thought should be done. Nevertheless, I feel bound to express the opinion that the decisions of this High Court taking the view that the High Court has the power to grant extension of time are wrong and that the decision of Oldfield and Ramesam, JJ., in Nagi Reddi v. Saki Reddi (1922)18L.W.29 holding that the High Court has no power to extend the time is right. Turning to the decisions expressing the opposite view, we have the decision of Ramesam and Madhavan Nair, JJ., in Kidaru Ramakottiwh v. Dhafmabhotla Subraman-yani, CM.P. No. 4993 of 1931 following a decision of Reilly and Anantakrishna Aiyar, JJ., in K.N. Ramakrishna Aiyar v. K.N. Parameswara Aiyar (1931) M.W.N. 215 and in C.M.P. No. 3644 of 1931, an unreported'case, which followed the decision in Nilhanth Balwanl v. Vidya. Narrinha Bharati in which they held that the High Court has power to grant extension of time and accordingly extended the time for furnishing security for costs. In the latter case two previous applications for extension of time appear to have been made but was rejected, but on the third occasion the attention of the Court was drawn to the decision of the Bombay High Court and it was followed and an extension of time given. Nilkanth Bahmnt v. Vidya Narsinha Bharati is a decision of a Full Bench and was in consequence of a difference of opinion between Shah, J. and Fawcett, J. Shah, J., was of the opinion that the High Court had such power and Fawcett, J., took the contrary view. The Full Bench' consisting of Marten, C.J. and Crump and Patkar, JJ., adopted the view of the former. In the opinion of Marten, C.J., the High Court has the power to extend the time because there is no express penalty provided by Order 45, Rule 7, for failure to furnish,the security and it is therefore in contrast with Order 45, Rules 10 and 11. He is further of opinion that Rule 9 of the Privy Council Rules is in conflict with Order 45, Rule 7, because upon a construction of it the High Court has power to extend the time.

5. Rule 9 is as follows:

Where an appellant, having obtained a certificate for the admission of an appeal, fails to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal) the Court may, on its own motion, or on an application in that behalf made by the respondent, cancel the certificate for the admission of the appeal, and may give such directions as to the costs o the appeal, and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises, as in the opinion of the Court the jttsticc of the case requires.

6. With all respect to the opinion of Marten, C.J., I do not think Rule 9 of the Privy Council Rules is in conflict with Order 45, Rule 7, because the latter rule does provide for a further extended period not exceeding 60 days upon cause being shown to the Court. Suppose, therefore, the 90 days from the date of the decree have passed without security being furnished, Rule 9 of the Privy Council Rules, it seems to me, gives nothing more than the right to cancel the certificate or, if it can be read as giving the Court any power to extend the time then if good cause is shown, to extend the time for furnishing the security, provided the extended time does not exceed 60 days. In any event, if, as it appears to me, Order 45, Rule 7 does not entitle the High Court to extend the time beyond that which is provided in the rule, I do not imagine that it was intended in Rule 9 of the Privy Council Rules which were to take effect from the same date as the amended Rule 7 of Order 45 to have any different effect. Rule 7 of Order 45 was amended in order to put an end to the great delay in appeals to the Privy Council reaching the Privy Council. Under the old rule, the appellant had six months in which to furnish the security from the date of the decree or six weeks from the datevf the grant of the certificate, whichever was the later date. In order to expedite the hearing of the Privy Council appeals and to remove one serious cause of delay, thesix months' period was cut down to 90 days and Rule 7 was amended by substituting the following words '90 days or such further period, not exceeding 60 days, as the Court may, upon cause shown, allow.' In my view, it was not intended by this amendment that the High Court should, for reasons appearing cogent, further extend that period of 60 days, having regard to the fact that in the rule it is thus expressed 'not exceeding 60 days.' It is quite true that under the old rule it was held that the High Court had power to extend the period. But in view of the very definite alteration of the rule, I cannot bring myself to suppose that the High Court has any power to grant further extensions.

7. When the case in Nilkanth Balwant v. Vidya Narsinha Bharati went to the Privy Council the appeal was decided in favour of the appellant. Their Lordships do not make any reference in the judgment of the Board to the extension of time granted for furnishing security by the Bombay High Court; nor was the power of the Bombay High Court to do so questioned ill the argument. The fact that no exception was taken by the Privy Council to the extension of time has been taken by Reifly aad Anantakrishna Aiyar, JJ., as significant, but, with all respect, the Privy Council never considered the point and it may well be that the point was never taken by the respondent because the Privy Council itself has power to extend the time, however limited the power of the Indian High Courts may be. And it may well be that, all that heavy costs of that appeal having been incurred, it was thought that the Privy Council would excuse the delay, even if the Bombay High Court had no power to extend the time. Ram Dhan v. Prag Narain, (1921) I.L.R. 44 A. 216. Joti Prasad v. Harkesh Singh (1928) 26 A.L.J. 433 J.N. Surty (Receiver) v. T.S. Chei'tyar Firm (1926) I.L.R. 4 Rule 265 at 288. Ramani Ranjan v. Durga Dutt A.I.R. 1927 Pat. 330 and Kmtala Kanfa v. Bandhu-mukhi were referred to and it has been held in all these cases that the High Court has no discretion under Order 45, Rule 7 to extend the period for furnishing security beyond that laid down in the rule. It is quite true that in none of those cases was the effect of Rule 9 of the Privy Council Rules considered, but, as already stated, in my view, Rule 9 does not have the effect given to it1 in Nilkanth Balwmt v. Vidya Narsinha Bharati. I think further that Rule 9 obviously has reference to the procedure in Order 45, Rule 7, and this is also clear from Rule 10 which is as follows:

A applicant whose appeal lias been admitted shall prosecute his appeal in accordance with the rules for the time being regulating the general practice and procedure in appeals to His Majesty in Council.

8. In my 'opinion, Rule 9 of the Privy Council Rules and Order 45, Rule 7 are parts of the same scheme. Quite apart, therefore from the merits of this case, in my opinion, this petition for an extension of time should be rejected, because the High Court has no power to extend the time beyond that specified in Order 45, Rule 7. This petition must be dismissed with costs of the respondent one set and the certificate, dated 16th October, 1931, granted in C.M.P. No. 1494 of 1931 cancelled.

Curgenven, J.

9. The question whether this Court has unlimited discretion to extend the time for furnishing security in appeals to the Privy Council resolves itself into two questions; (1) What is the meaning of Order 45, Rule 7, Civil Procedure Code read by itself and (2) If by itself it would limit the discretion to grant time, is it overridden by Rule 9 of the: new Judicial Committee Rules?

10. The former of these questions has received an almost uniform answer at the hands of those Benches which have considered it. The Allahabad High Court in Ram Dhan v. Prag Narain (1921) I.L.R. 44 A : : AIR1927Pat330 . 216 has drawn attention to the very careful drafting of the amended Order 45, Rule 7, and has concluded that the real meaning and intended effect is to curtail and limit the discretion of the Court to granting an extension up to the sixty days which the rule lays down as the maximum extension permissible. In particular the learned Judges reject an argument which has also been resorted to before us,--that whereas a limit is set to any extension allowed of the period of ninety days from decree, no such limit is set to the period of six weeks from the grant' of certificate. It is sought to take advantage of the absence of any such limit in order to attach to the latter period some such addition as 'or such further period as the Court may upon cause shown allow,' so that while the Court cannot indefinitely extend the time reckoned from the decree, it can always extend it reckoned from the certificate. Such a construction must, I think, clearly be held untenable in cases where the six weeks from certificate expires before the ninety plus sixty days from decree; because it is not reasonable that extension should be made to othe period which first expires. But whatever the circumstances, I think that it is difficult to escape from the view taken in Allahabad case under citation--that to grant an extension beyond the period of six weeks would be to defeat the object and intention of the amendment. This case was followed in Joii Prasad v. Harhesh Singh. (1928) 26 A.L.J.433. Two other High Courts, those of Rangoon and Patna, have taken the same view, the main argument being that the claim to unfettered discretion can only be justified at the cost of disregarding the words 'not exceeding sixty days,' which we must suppose were deliberately introduced by the amendment of 1920. An opinion to the same effect was expressed by Oldfield and Ramesam, JJ., in N'agi Reddi v. Saki Reddi. (1926) I.L.R. 4 R. 265 at 288. The first dissentient judgment was delivered by Shah, J., in Nilkanth Bahwnt v. VUya Narsinha Bharati in referring the question to a Full Bench. The learned Judge notices the argument that

when the legislature fixed the possible period of extension, the necessary implication is that the further powers of the Court for extending time were taken away,' consideration which, as he says, much influenced the Judges who decided Ram Dhan v. Prag Nafain. (1921) I.L.R. 44 A. 216. But he goes'on t express the view that, although in exercising its powers the Court will have regard to the object of the legislature yet 'it (the amendment) cannot be accepted as a ground for negativing the powers of the Court, which are as necessary in the broad interest of justice as it is necessary to avoid and reduce delays in the interests of justice.

11. The only meaning which 1 can attach to this language is, not that there is any doubt as to the intention of the legislature in introducing the words 'such further period not exceeding sixty days,' but that because the Court may think that strict compliance with them may occasion hardship, it is at liberty to regard them merely as a general direction to avoid excessive-delays. 'The provisions of this rule,' the learned Judge says, 'are as directory after the amendment of the rule by Act XXVI of 1920 as they were before the Act was passed.' He finds 'further support for his position in the terms of Rule 9 of the new Judicial Committee Rules a point to which I will refer presently. Fawcett, J., the learned Judge who joined in making the reference, took the view that the intention of the legislature was plain, and that the Courts ought to observe the limits now laid down. I respectfully concur in the line of reasoning followed in his judgment. The decision of the Full Bench, expressed by Marten, C.J., leaves open the question of the effect of the present Order 45, Rule 7, read by itself. It is based upon a supposed conflict between that rule and Rule 9 of the Privy Council Rules; the latter rule, it is said, read by itself, would allow the Court unlimited discretion to extend time; and the provisions of Section 112 of the Civil Procedure Code are invoked for liberty to proceed under Rule 9 unconditioned by Order 45, Rule 7.

12. This is the subject of the second question which I have' framed above. Rule 9 says that the Court may cancel the certificate if the appellant fails to furnish the security; and the use of the word 'may,' it is urged, shows that, instead of cancelling it upon such failure, the Court may extend without limit the time fixed for compliance. I am unable to see how even upon this 'construction, any conflict is thereby created between the two rules, unless it be a conflict that the one rule, read by itself, might leave the Court free to do something which the other rule in unmistakable terms forbids. I doubt very much whether Section 112, Civil 'Procedure Code, ought to be used in order to abrogate a rule having the force of law on the ground that it sets bounds to,.a discretion which the Privy Council Rules leave undefined. Rule 10 of those rules requires an appellant to prosecute his appeal in accordance with the rules regulating the general practice and procedure in Privy Council appeals, among which I suppose are comprised the rules under the Civil Procedure Code. That the amendment to Rule 7 was not made without advertence to the terms of the new Judicial Committee Rules seems clear from the' fact that the amendment and the rules came into force on one and the same day; so that, without saying, with Fawcett, J., that the amendment was made at the instance of the Privy Council, it seems specially incumbent upon the Courts to reconcile the two, rather than to enlarge their own powers by seeking to establish a conflict between them. In CM.P. No. 3644 of 1931 Reilly and Anantakrishna Aiyar, JJ., have recently followed the Bombay Full Bench case, but I doubt, with respect, whether the added reason given, that that case went before the Privy Council which must, from the silence of the report, be taken to have adopted the view of the Full Bench, is based upon a justifiable inference. Nor perhaps is it quite correct to say that Rule 9 'gives a power', which cannot therefore be restricted by anything in Order 45 of the Code.

13. I agree accordingly with my Lord that we have no power to extend the time in the present case, I agree too that even if we had the power it would not be a fit case for its exercise.


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