1. This is an appeal against the judgment of Panchapakesa Aiyar J. dismissing an application filed by the appellant herein for extension of the time for furnishing security for costs which he had been directed to furnish by an order of this Court passed by Ramaswami J. on 11-3-1952 in C. M. P. No. 1676 of 1952. That order was passed in an Appeal, A. S. No. 498 of 1951, which the appellant herein had filed in forma pauperis against a decree of the District Court of East Tanjore. Ramaswami J. directed the appellant to furnish security for costs of the Court below within one week of the reopening of that Court after the summer recess. The learned Judge also proceeded to say that failing such furnishing of security the appeal would stand dismissed.
The appellant did not furnish the security within time, but for some reason or other, the appeal itself was never posted formally for being dismissed under Order XLI, Rule 10 (2), Civil P. C. On 18-9-1953, the appellant filed the application above referred to for excusing the delay in applying for extension of time for furnishing security. This application was supported by a verified petition in which it was stated that the advocate missed noticing the petition which had been posted for hearing on 11-3-1952 and that he was totally unaware of the order passed therein and therefore he never communicated it to his client, the appellant before us. He frankly acknowledged that he was responsible for the delay. He further stated that he came to know of the order only that day, that is, 18-9-1953, on which day he filed the verified petition, from Mr. T. s. Kuppuswami Aiyar, the learned advocate for the contesting respondents. The application was dismissed by Panchapakesa Aiyar J. An objection was taken on behalf of the respondents before him that the Court had no jurisdiction to extend the time. But the learned Judge was of the opinion that in extreme cases the Court had jurisdiction. He, however, considered that no ground was made out for exercising such jurisdiction. He was apparently inclined to believe the statement of the learned counsel that by oversight he had missed noticing the petition and so had not communicated the order to his client. But, according to him, even if that be true, "that the client should have remained passive for 15 months, without enquiring from his advocate" was enough to reject the application. He went on to say "such paupers, waiting for 15 months to elapse after the period fixed for furnishing the security has expired, deserve no consideration." With respect to the learned Judge, we fail to see how if really the client was never apprised of the order, he could be held guilty of inaction for 15 months from the period fixed under an order of which he had no knowledge.
2. On behalf of the respondents, Mr. Kuppuswami Aiyar, once more raised the objection that this Court had no jurisdiction to extend the time for furnishing security after the time originally fixed had expired. He put his argument on a two-fold basis.
His first basis was that part of the order of Ramaswami J., by which the learned Judge directed that the appeal would stand dismissed on the appellant failing to furnish security in time. In our opinion, this basis is not open to Mr. Kuppuswami Aiyar. The learned Judge, Ramaswami J. had no jurisdiction to direct a regular appeal to the valuation of over Rs. 20,000, to stand dismissed. The proper course should have been for the appeal to have been posted before a Division Bench under Order 41, Rule 10 (2), Civil P. C. This, as already mentioned, was never done.
3. The next basis of Mr. Kuppuswami Aiyar's argument was that even without any order of rejection, on the expiry of the period fixed for furnishing security, the appeal automatically stood rejected, and thereafter there was no power in the Court to extend the time for furnishing security. His argument was founded entirely on the decision of the Privy Council in -- 'Mt. Sabitri Thakurain v. Savi', AIR 1921 PC 80 (A).
That decision, however, has no bearing on the Question which now falls for decision. In that case, there was an order under Order 41, Rule 10 (1) of the Code on 18-12-1914 directing the appellant to furnish security within two months from that date. On 17-2-1915, an application was made for extension of time, but that application was dismissed on 18-2-1915. On 22-2-1915, the respondent filed an application praying that the appeal may be dismissed with costs. Thereupon, the appellant filed a petition on 23-3-1915 praying that he might be allowed to proceed with the appeal in 'forma pauperis'. On the same day, i.e., 23-3-1915, by an order, the appeal itself was dismissed for failure to comply with the order for, security.
The order refusing the appellant's application to continue her appeal in 'forma pauperis' was carried up in appeal to His Majesty in Council. The appeal was dismissed. In doing so, their Lordships observed that the High Court had rightly conceived itself precluded from entertaining the appellant's application to be allowed to continue her appeal in 'forma pauperis', since to grant her application at that stage would in effect have been to keep alive an appeal which they were, by reason of her default in the matter of security, bound to reject. We do not see how this decision helps Mr. Kuppuswami Aiyar. The application made by the appellant for extension of time had been long ago rejected and there was no similar application pending. The appeal had only to be formally rejected, and as there was no application for further extension, the Court was bound to reject the appeal. What their Lordships pointed out was that at that stage it was not open to the High Court to allow the appellant to continue her appeal in 'forma pauperis'.
4. On the other hand, there is direct authority Of the Privy Council that the Court has jurisdiction to extend the time for furnishing security in a proper case. In -- 'Rajab AH v. Amir Hussain', 17 Cal 1 (PC) (B), their Lordships expressed their view that the Court had a discretion to enlarge the time allowed for funding security.
In -- 'Badrinarain v. Sheo Koer', 17 Cal 512 (PC) (C) the subject was dealt with at greater length. There, their Lordships held that the court had power to extend the lime for complying with an order under Section 549, Civil P. C. (corresponding to Order 41, Rule 10 of the present Code) as well after as before the time first fixed had expired. The apparently mandatory language of Section 549 was relied upon, but their lordships held that in spite of such language the Court had power to make an order extending the time for furnishing security. Their Lordships observed, after referring to the language of Section 549 which is in 'pari materia' with Order 41, Rule 10 (2) of the present Code:
Those words appear to be consistent with the court having the power to make fresh orders with regard to the time within which security should be furnished, & not to fetter it in the way that is contended for by the learned counsel, that having once made an order and fixed a time they can make no alteration in It, no matter what circumstances might occur which would render it impossible for that order to be complied with. That would not be a reasonable construction of the Act. The other construction is a reasonable one, that the application to the Court to enlarge the time for giving security may be made either before or after the expiration of the time within which the security has been ordered to be furnished, and the Court may thereupon enlarge the time according to any necessity which may arise where it is just and proper that they should do so." Their Lordships refer to the earlier case, -- '17 Cal 1 (B)', in which they had taken the same View.
Section 148 of the present Code of Civil Procedure which is a now provision not found in the Code of 1882 specifically provides for such enlargement of time when the Court fixes a date for the doing of any act. We, therefore, hold that the Court has jurisdiction to extend the time for furnishing security for costs both before and after the expiry of the period fixed by an order under Order 41, Rule 10(1) of the Code.
5. It was next contended by Mr. Kuppuswami Aiyar that this was not a case in which we should interfere with the discretion exercised by the learned Judge, Panchapakesa Aiyar J. Ordinarily, we are never inclined to interfere in cases where one learned Judge has exercised a discretion, but in the circumstances of this case, we are convinced that the learned Judge wrongly refused to exercise the discretion in favour of the appellant and we are not satisfied that the ground on which the learned Judge refused to exercise this discretion in his favour is well-founded. If it is true that the learned advocate did not communicate the order to his client then we fail to sea how the appellant can be held guilty of delay or laces. This is a case eminently fit for the exercise of our discretion. The appeal is allowed. We extend the time for furnishing security by two weeks from the date on which the papers are received by the Court below.
6. In our opinion, this is a case in which the appellant should be directed to pay the costs of this appeal to the respondents.