Venkatasubba Rao, J.
1. This is an application by the residents (in the appeal) that appellant should be directed to give security for the (sic) already incurred and the costs (sic) are likely to be incurred. On behalf the appellants the chief fact that had been relied upon in resisting the applied is his poverty. Mr. T.M. Krishnswami Aiyar has argued that in view of the fact that his client is not in a position pay the costs that have been incurred, order should be made directing him to furnish security as such an order would practically have the effect of putting an end to the appeal. Various cases have been cited which have attempted to interpret Order XLI, Rule 10, and the corresponding provision in the Civil Procedure Code of 1882. But I do not think any decision that has been cited to me has laid down any hard and fast rule in regard to the exercise of judicial discretion. Reference has been made to the corresponding provision of the Supreme Court Rules and a good deal of argument has been based upon the wording of that rule. Order LVIII, Rule 15, of the Supreme Court Rules, directs that 'the deposit or other security for the costs to be occasioned by an appeal should be made or given as may be directed under special circumstances by the Court of Appeal.' It will be seen that the Courts in India have even wider powers than the Court of Appeal in England. No reference to special circumstances is made in Order XLI, Rule 10. The reason for the rule in England has been very clearly stated in the judgment of Lord Justice Lush in Harlock v. Ashberry (1882) 19 Ch. D. 84 1882 45 L.T. 602 . He observes: 'In the Court of Chancery it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law; there poverty alone was not considered a sufficient reason for requiring security to be given.' Referring to the rule under the Judicature Act he proceeds to say: 'This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances. I understand that it has been the practice to hold that poverty or inability to pay the costs of the appeal if it should be unsuccessful is a special circumstance.' The argument of Mr. T.M. Krishnaswami Aiyar is that this rule has never been adopted by the Indian Courts and, therefore, poverty should not be held to be a special circumstance which would entitle a respondent to an order under Order XLI, Rule 10. Even under the Judicature Act the English Courts have not invariably said that poverty by itself would be a sufficient ground for an order directing security to be given. In Hood-Barrs v. Heriot (1896) 2 Q.B. 375 : 65 L.J.Q.B. 624 Lord Esher, M.R. while stating that poverty would be a special circumstance adds: 'There is no authority which shows that the Court is in any case obliged as a matter of law to make an order that security shall be given for the costs of an appeal. It is a matter absolutely in the discretion of the Court. Where the liberty of the appellant is in question, or where highly penal consequences will be entailed upon the appellant by the order appealed against, so far from thinking that the Court. is bound in any case to make an order for security of costs, I think, as a general rule, the Court would not do so.'
2. Cockburn, C.J., takes a similar view in Usil v. Brearley (1878) 3 C.P.D. 206 : : 26 W.R. 371 where an appellant was ordered to give security for the costs of the appeal. The learned Chief Justice makes the following observation: If the Court were of opinion that the plaintiff had any reasonable ground for going on which his action, they should not allow mere...poverty to stand in the way of his appeal. But we are justified in looking at the peculiar circumstances of the case...We may fairly take into consideration the character of the action and the questions involved: and we cannot help noticing that it was a vexatious proceeding on the part of the plaintiff to bring three actions, all for the same cause of complaint at the same time, when one would have been sufficient for his purpose'.
3. In Ex parte Isaacs, In re Baum (1878) 9 Ch. D. 271 : 26 W.R. 890 Brett, L.J., refers to the extreme poverty of the appellant as a special circumstance; and In re: Ivory Hankin v. Turner (1879) 10 Ch. D. 372 Cotton, L.J. observes that the insolvency of an appellant is prima facie a sufficient reason for ordering him to give security though in some cases the Court may not order him to do so.
4. Earl Cairns, L.C. in the same case makes the following observations: 'It is not necessary to decide, and I do not wish to decide, what does not arise, whether in every case where the appellant is a pauper the Court will require a security for costs; but, certainly, where a pauper comes forward to engage in such contest as this there are special circumstances which will induce the Court of Appeal to order him to give security.'
5. I understand the rule under the Judicature Act thus: If special circumstances exist, and poverty is a special circumstance, the Court may direct security to be given but the Court is not bound to do so. The words in the rule are 'as may be directed.' These indicate that the Court has a discretion to refuse to order security even if poverty on the part of the appellant is made out. In the case already cited Hood-Barrs v. Heriot (1896) 2 Q.B. 375 : 45 W.R. 17; Lord Esher M.R. arrived at this conclusion; and to my mind it appears to be if I may say so with respect the right construction of the rule under the Judicature Act.
6. It may be observed, however, that the respondent does not urge that the appellant's poverty is a special circumstance which must induce me to make the order. On the contrary, the appellant relies on his own poverty as a defence to the application. In my opinion, what the appellant, in order to succeed, is bound to show is that mere want of means is a sufficient ground for dispensing with security, I do not think that any cafe has gone that length. On the other hand, whether circus instances J exist which would entitle the respondent to relief under the provision, is a question to be decided with reference to the facts of each case and one of the circumstances entitling the respondent to relief is stated to be non-payment of the costs incurred in the lower Court. There is nothing in Jiwan Ali Beg v. Basa Mal 8 A. 203 : A.W.N. (1886) 58 : 4 Ind. Dec. 1174 (F.B.) which is a decision of the Full Bench of the Allahabad High Court which is inconsistent with what I have said. Mr. Justice Straight who referred for the decision of the Full Bench the question whether poverty alone would entitle the respondent to an order in his favour, states at page 204: 'It has been ruled on three occasions in this Court--twice by myself and once by Mr. Justice Mahmood--that mere poverty alone is not a sufficient ground for requiring security for costs from an appellant, and I have certainly been under the impression that that was the recognized rule in the English Courts, which also has been followed by the Bombay High Court. Mr. Hill has, however, called my attention to two rulings of the Court of Appeal in England, which seem at least to modify the old decisions, and to show that poverty or insolvency is a good ground for requiring security for costs from the appellant. As the question is one of practice, and of considerable importance to those engaged in appeals in this Court, I refer it to the Full Bench for the determination.' I observe that four of the five Judges who composed the Full Bench gave an answer in the very guarded terms because they say that, 'the mere fact of the poverty of an appellant, standing by itself, and without reference to any of the general facts of the case under appeal, ought not to be considered sufficient alone to warrant his being required to furnish security for costs.' Mr. Justice Tyrell is even more cautious in the expression of his opinion.
7. With reference to these principles, I shall examine the facts of this case. It is unnecessary to refer in very great detail to the affidavits that have been filed. The facts are patent. Property of great value is involved in this litigation and the appellant has spent quite a considerable amount of money in the attempt to establish the title to the jagir in question. Since the disposal of the suit, various applications have been made to the High Court and here again the appellant has incurred or must have incurred heavy expenses in relation to these proceedings and he has paid a large Court-fee upon his own appeal. The costs of the respondents awarded are, after all, a fraction of the costs that have been really incurred by him. The respondent, has, moreover, taken every possible step to realise the amount from the appellant and he has been unable to recover the costs. It seems to me that, in the circumstances, the just order would be to direct that the appellant should give security for the costs that are likely to be incurred in the appeal. I am not prepared to direct security in regard to the costs already incurred. I shall fix the costs likely to be incurred in the Appellate Court at Rs. 1,000, and direct the appellant to give security for that sum to the satisfaction of the lower Court within a week from the re-opening of that Court after the long vacation. If the appellant makes default, the appeal will be posted, under Order XLI, Rule 10(2) for disposal.