Alfred Henry Lionel Leach, C.J.
1. This is an appeal from an order of Bell, J, directing the petitioner in a divorce suit to furnish security in the sum of Rs 1,000 for the costs of the co-respondent. The petitioner resides in Calcutta. The respondent and the co-respondent are now residing in Bombay. The suit has been instituted in this Court because the petitioner says that he and his wife last resided together in Madras. In making the order for costs the learned Judge said that he was not uninfluenced by the fact that the petitioner had deliberately sought the jurisdiction of this Court, knowing that all the evidence would have to come from Bombay or Calcutta and thereby deliberately increasing the costs of the parties involved.
2. An order for security for costs can only be made in accordance with some established principle. If the petitioner is entitled to file his petition here the fact that he might have filed it in another High Court is no ground for requiring him to furnish security for the costs of the co-respondent. What has really weighed with the learned Judge is the fact that the petitioner, does not reside within the limits of the jurisdiction of this Court. This is indicated by the reference which he makes to the judgment in Redfern v. Redfern 63 L.T.N.S. 780 where security was sought by the co-respondent because the petitioner was an American citizen.
3. Under the Code of Civil Procedure a plaintiff cannot be required to give security for the costs of the defendant unless he resides out of British India and he has no immovable property here. The petitioner does reside in British India and under the Code an order for security for costs could not be passed against him. The English rules of practice do not help the co-respondent because the petition ,is residing within British India. If the co-respondent succeeds in his defence and a decree for costs is passed in his favour he will be able to apply for execution in Calcutta. If the petitioner were not resident in this country an order for security for costs would be a very proper one, but he is resident here and so far as this case is concerned this is the deciding factor.
4. The appeal will be allowed with costs and permission given to the appellant to withdraw the' money deposited in Court.