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Swarna Rajamma Vs. Thota Venkaiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Revn. No. 1793 of 1948
Judge
Reported inAIR1952Mad601
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 5
AppellantSwarna Rajamma
RespondentThota Venkaiah
Appellant AdvocateA. Raghavayya, Adv.
Respondent AdvocateK. Umamaheswaram, Adv.
DispositionPetition allowed
Cases ReferredRangaswami Nadar v. Pichaimani Nadar
Excerpt:
- .....time and that it was not necessary that the testing of the security itself and the filing of the fair security bond should be made within the time prescribed.2. mr. alladi kuppuswami has relied on the decision of ramesam, j.: in 'balakrishna aiyab v. pichamuthu pillai', 15 m.l.w. 186, followed by king j. in 'chathiyalan kanakurcjp v. raman naib', : air1943mad51 . that was a decision under section 17 of the provincial small cause courts act where a defendant against whom an 'ex parte' decree was passed on 26th january 1920 filed a draft security bond on 6th february 1020 which was ultimately accepted on 9th march 1920 and he only filed his fair bond on the 1st april 1920. it was held that the filing of the draft bond was not sufficient compliance with the requirements of section 17 of.....
Judgment:

Mack, J.

1. The petitioner obtained an order for stay in the High Court on 3rd September 1948 which was made absolute on her furnishing security in Rs. 3,000 to the satisfaction of the Sub-Court, Bapatla, within six weeks from that date and also depositing some costs and mesne profits within the same period. The petitioner tendered a draft security bond on nth September 1948. Her application was returned with some objections. She represented it on 4th October 1948. It was them posted on 7th October 1948 to 18th October 1948 for objections. On that date the Subordinate Judge held that the time allowed by the High Court order had expired on 15th October 1948 and dismissed the petitioner's application and also disallowed time for filing objections to the draft security bond. This point has already been considered and decided by Yahya All J. in 'Ganpathi Naicksr v. Govindarajulu Naidxj', : AIR1947Mad70 . He held following the view taken by Happell J. in 'Rangasami Nadar v. Pichaimani Nadar', : (1941)2MLJ291 that it was sufficient compliance with such an order if the security had been tendered in time and that it was not necessary that the testing of the security itself and the filing of the fair security bond should be made within the time prescribed.

2. Mr. Alladi Kuppuswami has relied on the decision of Ramesam, J.: in 'Balakrishna Aiyab v. Pichamuthu Pillai', 15 M.L.W. 186, followed by King J. in 'Chathiyalan Kanakurcjp v. Raman Naib', : AIR1943Mad51 . That was a decision under Section 17 of the Provincial Small Cause Courts Act where a defendant against whom an 'ex parte' decree was passed on 26th January 1920 filed a draft security bond on 6th February 1020 which was ultimately accepted on 9th March 1920 and he only filed his fair bond on the 1st April 1920. It was held that the filing of the draft bond was not sufficient compliance with the requirements of Section 17 of the Provincial Small Cause Courts Act King J. following this decision referred to the decision of Happell J. In 'Rangaswami Nadar v. Pichaimani Nadar : (1941)2MLJ291 but felt that the decision of Ramesam J. was logically correct because in Section 17 of the Act an alternative was given, namely, deposit or security which had to be complied with in 30 days and the statute contemplated something effectually being done within this period. I prefer in cases of this kind to follow the view taken by Happell J. and Yahya Ali j. that when stay is ordered by an appellate Court on security being furnished within a particular period what the Court contemplated was the tender of security within that time, it would be manifestly inequitable if for no fault of his, a petitioner obtaining such stay is penalised by Lime being taken for objections to a draft security bond and then finding himself in the position of not being able to file a fair security bond within the time prescribed.

3. Mr. Alladi Kuppuswami has urged that the correct procedure contemplated in the decisions under Section 17 of the Provincial Small Cause Courts Act which should be followed in these cases also is that a fair security bond should be filed in the first instance; but at the same time he concedes that it is always open to the other side to object to the sufficiency of security. I am unable to see any difference, so far as finality la concerned, between a draft security bond and a fair security bond, if the latter can be objected to for want of sufficiency or on any other ground. This is a type of case of common occurrence, in which I think it is sufficient if the security is tendered with a draft security bond within the time prescribed by the Court. This does not mean that in the event of the security tendered being found insufficient it is open to the petitioner to file fresh security. He must take his stand on the security that he furnishes, and if this is found to be insufficient then his petition for stay fails. It is up to him to see that sufficient and acceptable security is tendered by him in the first instance.

4. In this view this petition is allowed, but therewill be no order as to costs in view of the legalposition taken by the Subordinate Judge. Thelower Court will give time to the respondent tofurnish objections, and dispose of the applicationtendering security in due course on the lines indicated.


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