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Ambalathilakath Kuttoosa and anr. Vs. Mundayatan Korath Vettil Kunhamma Amma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in168Ind.Cas.924
AppellantAmbalathilakath Kuttoosa and anr.
RespondentMundayatan Korath Vettil Kunhamma Amma and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 10 - appeal--security for costs--granting of security--guiding principles--effect of delay. - .....an application made under order xli, rule 10, civil procedure code, to require the appellants to furnish security for the balance of costs in the lower court awarded to the petitioners) who are respondents nos. 9 and 10 in the appeal, and also for costs of the appeal now pending in this court, namely appeal no. 292 of 1934.2. this application was made in july 1936, that is to say, more than a year and a half after the appeal had been filed. the balance of costs in the court below which the petitioners claim is about rs. 109 and they estimate their costs in this court at rs. 400. it is contended by the appellants that this application is not bona fide but has been made merely because another application by one of the respondents for an order requiring the appellants to furnish security.....
Judgment:
ORDER

Pandrang Row, J.

1. This is an application made under Order XLI, Rule 10, Civil Procedure Code, to require the appellants to furnish security for the balance of costs in the lower Court awarded to the petitioners) who are respondents Nos. 9 and 10 in the appeal, and also for costs of the appeal now pending in this Court, namely Appeal No. 292 of 1934.

2. This application was made in July 1936, that is to say, more than a year and a half after the appeal had been filed. The balance of costs in the Court below which the petitioners claim is about Rs. 109 and they estimate their costs in this Court at Rs. 400. It is contended by the appellants that this application is not bona fide but has been made merely because another application by one of the respondents for an order requiring the appellants to furnish security was allowed and as the security was not furnished, the appeal was dismissed as against that respondent, and that the present application is dictated by the desire to see the same result happen as regards the petitioners. It may be that this is the motive behind the present application but that motive by itself would not be sufficient to put them out of Court. It is, however, to be observed that the object of the rule enabling the Court to require the appellant to furnish security for costs is to secure the respondent from the risk of having to incur further costs which he might never recover from the appellant and this being the object, any application which is made under this rule must be made promptly. No promptitude is observed in the present case. Secondly, even though the risk to the respondents, is to be borne in mind, it is not conclusive in the sense that wherever, there is risk to the-respondents' security will be taken. If the risk is very great, it may by itself be sufficient to justify an order requiring the appellants to furnish security; but where the risk is not great as in the present case and the amount involved is not really very large, other considerations must be given their due weight, for instance one must be careful to see that a poor appellant is not deprived in effect of his right of appeal. Poverty is always handicap in matters of litigation and there is no justification in my opinion for the Court to handicap by requiring impossible things to be done. Of course, the case would be different if there was any reason to suppose that the appeal was not a bona fide, one or that the appellants were only puppets in the hands of others. It is stated that the Subordinate Judge in the Court below has made an observation to the effect that the. Present litigation is being engineered by the 1st. defendant, but that does not perhaps mean more than that he sympathises with the appellants and is helping them with evidence so far as he can. There is nothing to show that the appellants have no real or substantial interest in the subject-matter of the litigation, or that they are mere namelenders for the 1st defendant in the present appeal. The 1st defendant is the karnawan and it is his dealings with the property that form the subject-matter of some of the issues in the suit and his attitude may not perhaps be quite straightforward. That is no reason for coming to the conclusion that the present appellants are not litigating in their own right and in their own interest. On the whole, I am of opinion that this application is belated, is not bona fide, and that even otherwise, it is not desirable in the interests of justice that an order should be made for funishing security which might very likely stifle the appeal itself. The application is, therefore, dismissed with costs.


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