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P. Murugayya Pillai Vs. Seethalakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1958)1MLJ330
AppellantP. Murugayya Pillai
RespondentSeethalakshmi Ammal
Cases ReferredGanapathi Naicker v. Govindarajulu
Excerpt:
- .....with 20th march, 1956. admittedly, costs of suit were deposited within the time allowed and a draft bond containing the description of the property proposed to be given as security was put into court by the petitioner on 20th march, 1956, the last date of the period of thirty days granted by the appellate court for this purpose. objection was taken to the acceptance of this draft bond, and this, objection was upheld by the learned district munsif relying upon the decision in marimuthu gounder v. ponnammal : (1956)2mlj25 this decision followed a prior decision in kali setti penchalu setti v. potireddi subba reddi : air1943mad520 . in both these cases, it was held that a mere draft written on unstamped paper was not sufficient compliance with the order of a court directing security of.....
Judgment:

Ganapatia Pillai, J.

1. This Revision Petition is directed against the order of the learned District Munsif, Nagapattinam, whereby he held that the petitioner had not sufficiently complied with the order of the District Court of East Tanjore at Nagapattinam in C.M.P. No. 10 of 1955. That order of the District Judge was passed in an appeal preferred against the decree of the District Munsif, Nagapattinam, in O.S. No. 91 of 1953. The purport of the order was that the appellant was to deposit costs of suit into the lower Court and furnish security in the shape of immoveable properties for the amount of the decree as a condition of stay of further proceedings. The time given by the appellate Court for furnishing security and depositing costs ended with 20th March, 1956. Admittedly, costs of suit were deposited within the time allowed and a draft bond containing the description of the property proposed to be given as security was put into Court by the petitioner on 20th March, 1956, the last date of the period of thirty days granted by the appellate Court for this purpose. Objection was taken to the acceptance of this draft bond, and this, objection was upheld by the learned District Munsif relying upon the decision in Marimuthu Gounder v. Ponnammal : (1956)2MLJ25 This decision followed a prior decision in Kali Setti Penchalu Setti v. Potireddi Subba Reddi : AIR1943Mad520 . In both these cases, it was held that a mere draft written on unstamped paper was not sufficient compliance with the order of a Court directing security of immovable property to be furnished by a particular date.

2. Mr. Jagadisa Ayyar, the learned Counsel for the respondent contends that giving security or furnishing security of immoveable property usually ordered by appellate Courts as a condition of granting stay of further proceedings before the trial Court or other relief permissible under the Civil Procedure Code stands on a par with giving security mentioned in Section 17 of the Provincial Small Cause Courts Act as a condition precedent to making an application for setting aside an ex parte decree passed in a small cause suit. In the case of security mentioned in Section 17 of the Provincial Small Cause Courts Act, there has been a uniform course of decisions in this Court, starting from the decision of Ramesam, J., in Balakrishna Ayyar v. Pichamuthu Pillai (1921) 15 L.W. 186 followed by the decision of King, J., in Chathiyelan Kanna Kurup v. Raman Nayar : AIR1943Mad51 and culminating in the decision of the Bench of this Court consisting of Govinda Menon and Ramaswami, JJ., in Marimuthu Gounder v. Ponnammal : (1956)2MLJ25 . These decisions have all held that furnishing security within the meaning of Section 17 of the Small Cause Courts Act should be construed as putting into Court a properly drafted security bond engrossed on stamp paper, which, if approved by the Court, could be converted into an enforceable security in law. Mr. Jagadisa Ayyar argues with some force that there should be no distinction in principle between furnishing security as required under Section 17 of the Small Cause Courts Act and giving security in other cases governed by the Civil Procedure Code, where the purpose is the same.

3. A number of decisions of single Judges of this Court have been cited to me by Mr. K. Raman, the learned Counsel for the petitioner, to show that, in the case of security to be furnished under the various Rules of the Civil Procedure Code, it has been held that the filing of a draft bond not engrossed on stamp paper is a sufficient compliance with the order of the Court directing security to be furnished. The earliest of these decisions is that of Jackson, J., reported in the Short Notes of 52 M.L.J. 53. This was followed by Happel, J., in C.R.P. No. 1511 of 1938 and by Mack, J., in Swarna Rajamma v. Thota Venkiah : (1949)2MLJ13 and Yahya Ali, J., in Ganapathi Naicker v. Govindarajulu ( : AIR1947Mad70 . On an examination of these decisions, I find that the question as now presented before me did not arise for decision. The argument in all those cases was that, if the draft bond put into Court was eventually found to be sufficient but this was done after the expiry of the time fixed by the appellate Court for furnishing security there was no proper compliance with the order directing security of immoveable property to be given. The question whether the filing of a draft bond on plain paper was itself sufficient compliance with the order must however be deemed to have been only impliedly decided. In fact, Yahya Ali, J., expressly leaves this question open. I, therefore, feel that, in the absence of a Bench decision on this point. I am free to examine the question in its fundamentals. The object of an appellate Court directing security of immoveable property to be furnished as a condition of its order is to assure the decree holder that the decree amount would be eventually paid, or, would be more easily recoverable. This object could be achieved by a properly enforceable security bond engrossed on stamp paper and registered, being put into Court within the time fixed by the Court. Mr. Jagadisa Ayyar's argument was that if time is allowed for the performance of this act and if on the last date of this period a draft bond written on plain paper is put into Court, it would not amount to compliance with the order of Court to give security, because the party bound to give security has not done anything which could be construed as putting himself in peril of the security being enforced against him. The word 'security' has not been defined either in the Civil Procedure Code or in the Provincial Small Cause Courts Act or in the General Clauses Act. But it will be readily accepted that it means and includes the filing into Court of an enforceable document for the purpose of giving assurance to the decree-holder about payment of the money due to him under the decree. Such a purpose can be achieved only if the bond put into Court by the obligor could be converted into a legally enforceable security without any further act to be performed by him. It is true that, even if a security bond charging immoveable property and engrossed on stamp paper is put into Court, it would have to be registered before it could be enforced in law. But, for this purpose, the Court is not helpless ; nor need it depend on any further act of the obligor, because, compulsory registration of the bond could be had at the instance of the Court. On the other hand, if on the last day of the period fixed or within the period fixed a draft security bond written on plain paper is put into Court, the obligor could not be deemed to have done what was necessary for furnishing security, because, the Court would still have to look to him for the furnishing of a security bond engrossed on stamp paper. The requirement as to the bond being engrossed on stamp paper is not therefore a mere technicality as it might seem at first sight. It is really an indication that the obligor is in earnest in complying with the order of the Court and has done all that could be done by him to carry out that order. In this view, I see no difficulty in accepting the principle, which has been applied by the rulings of this Court to giving security under Section 17 of the Small Cause Courts Act, as applicable to giving security in the case of orders passed under the Civil Procedure Code also. In this view, I am of opinion that the order of the lower Court is correct and this Civil Revision Petition should be dismissed.

4. There will be no order as to costs.


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