1. Section 117 of the Civil Procedure Code provides that the provisions of the Code apply to the Original Side, except when expressly excluded Order 41, Rule 10 was not excluded in Order 49, Rule 3. Section 129 of the Code gives the High Court the power to make rules, regulating the procedure of the Original side and nothing in the Code will affect such rules. The effect is that if the rules of the High Court, Original Side, and the Code are inconsistent, the rules prevail. Now, Order 41, Rule 10 can be read along with Rule 354 of the rules of the High Court, Original Side. The manner of applying is by notice of motion and to that extent it may modify the provision in the Code that it shall be by petition. As to what the Court should do, the Original Side Rule is silent. We do not think that the decision in Behram Jung v. Haji Sultan Ali (1913) 37 Bom. 572 and Ratanchand v. Damji A.I.R. 1923 Bom. 399 help us. In Bombay there is a special rule providing for a deposit Rs. 500, along with the appeal, and it was held that the rule was inconsistent with the Code. The second decision holds that an additional security in appeal may be demanded. This can be only under the Code.
2. We are of opinion that the proviso to Order 41, Rule 10 applies to Original Side appeals. The amount demanded, i.e., Rs. 3,500, is reasonable.
3. The appellant will give security for that amount, within two months from this date, to the satisfaction of the Deputy Registrar, Original Side.
4. Costs of this petition will be costs in the cause.