1. This is an application by the Respondent, Avis Mary Kathleen Goulding, who is the wife of the Appellant, that the Appellant do furnish security for the costs of the appeal to the satisfaction of the Registrar of this Court and that until such security is furnished all proceedings in this appeal be stayed.
2. It appears that an order was made by a learned Judge sitting on the Original Side of this Court that Mrs. Goulding should be the guardian of her infant daughter Lydia Barbara Goulding who is aged about 6J years. The Appellant, the father of the infant has appealed to this Court against that decision.
3. The petition, which has been filed by the Respondent, states that the Appellant resides in England, and is outside the jurisdiction of the Court and that he has no immovable or other property in British India. No affidavit has been filed in reply and the learned Counsel, who has appeared for the Appellant, has stated that he is not in a position to deny the allegations to which I have referred.
4. The learned Counsel for the Appellant, however, has taken the point that this Court has no jurisdiction to make the order. His argument was to the effect that Order 41, Rule 10, C.P.C., does not apply in the case of an appeal from a learned Judge sitting on the Original Side of this Court, but that its operation is confined to appeals from Courts outside Calcutta to this Court in its Appellate Jurisdiction, and secondly even though this Court might have inherent jurisdiction to make the order which has been asked for, it could not exercise such jurisdiction until a rule somewhat similar to that which appears to obtain in the Bombay High Court has been passed by this Court.
5. In my judgment Order 41, Rule 10, C.P.C., does apply to an appeal from the judgment of a learned Judge sitting on the Original Civil Side, in the absence of any rule of this Court framed in the exercise of the power to regulate its own procedure in its Original Civil Procedure. The only authority which was cited as being contrary to that view is the case of Sesha Ayyar v. Nagarathna Lala (1903) 27 Mad. 121 which was the decision of a learned Judge of the Madras High Court sitting alone.
6. Our attention was drawn to the case of Nawab Behram Jung v. Haji Sultan Ali Shustry (1912) 37 Bom. 572, and from that case it appears that the Bombay High Court has a rule which prescribes that in an appeal from the judgment of a learned Judge on the Original Side the Appellant is required to deposit with the memorandum of appeal a sum Rs. 500 as security for the costs of the Respondent in the appeal or, if, more than one, for the costs of each Respondent having different interests. In that case the learned Chief justice and the other learned Judge, who was sitting with him, came to the conclusion that, inasmuch as the Appellant had complied with the rule as regards the deposit of Rs. 500, and inasmuch as the Respondent had abstained from applying for security of the costs of the original hearing, as he might have done, there was no reason why they should exercise their discretion by ordering that the Appellant should give further security either for the costs of the original hearing or for the costs of the appeal; and the learned Chief Justice concluded his judgment by saying: 'We have been referred to no reported case in which such an order has been made, and we do not think (although we do not doubt our power if it were necessary in the interests of justice to make such an order) that a case has been made out for such an order at present.'
7. It seems to me that that case is an authority against the contention which has been put forward by the learned Counsel for the Appellant. That case, as I read it, is not an authority that Order 41, Rule 10, C.P.C., does not apply to HUCII a case as that which we are now considering. It is an authority for the proposition that the rule which was made by the High Court for depositing Rs. 500 was inconsistent with Order 41, Rule 10; but in my judgment, it is not necessary for us to consider the matter at any length, because in my opinion, there is a decision of this Court which covers this matter.
8. Our attention was drawn at the end of the argument to the case of In the matter of Goberdhone Seal, an Insolvent : S.M. Lakhypriya Dasai v. S.M. Raj Kishori Dassi (1915) 43 Cal. 243 which was a decision of Mr. Justice Woodroffe, Mr. Justice Mookerjee and myself and the judgment which was appealed from was delivered by Mr. Justice Chowdhury Kitting on the Original Side. The learned Judge held that the sale, which was the subject of the enquiry, by the insolvent to his wife was a fictitious sale and, he also held that the transfer by Sorbasundari in the name of Lakhypriya, the Appellant, was a fictitious one; and he held that both the transfers were void as against the Official Assignee. Against that Lakhypriya preferred an appeal. My learned brother Mr. Justice Woodroffe delivered the judgment of the Court. An application was made for security for the costs of the appeal and in that case the learned Counsel, who appeared to oppose the application, relied upon the case of the Madras Court on which the learned Counsel in this relied and Mr. Justice Woodroffe said as follows : - 'The application is opposed both on grounds of law and fact. As regards the first question the point is whether Order 41, Rule 10 applies to the case of an appeal from an order passed by a Judge in insolvency under Act III of 1909. Section 8(b) of that Act states that an appeal shall lie in the same way and be subject to the same provisions as an appeal from an order made by a Judge in the Ordinary Original Civil Jurisdiction. The question then is does the order apply to the latter case? No doubt the case of Sesha Ayyar v. Nagarathna  21 Cal. 642 answers this question in the negative. This case was decided prior to the present Code and has not been referred to nor followed so far as we are aware in this Court where the previous practice has been to entertain such applications. Under Section 117 of the Code its provisions apply to the High Courts save as provided in Parts IX and X. I am of opinion, therefore, that we have power to entertain an adjudication under Section 117 and Order 41, Rule 10 of the Code. This conclusion is in conformity with the previous practice under which such applications have been adjudicated. It cannot be reasonably held that this Court when sitting in appeal from a decision of the Original Side is deprived of powers necessary to an effective jurisdiction admittedly existent on the Appellate Side of the same Court. For if Order 41, Rule 10 does not apply, there is no other provision applicable and in such a case it would be necessary to invoke the provisions of Section 151.'
9. The learned Judge concluded by saying that on facts of that case security should be required.
10. If view of these decisions, especially in view o the case to which I have referred, In the matter of Goberdhone Seal an Insolvent : S.M. Lakhypria Dassi v. S.M. Raj Kishori Dassi (1915) 43 Cal. 243. I have no doubt that this Court has jurisdiction to entertain this application and, if it thinks fit, to make an order in respect of it.
11. We direct that security to the extent of Rs. 500 for costs of the appeal be furnished by the Appellant on or before the first June 1924 to the satisfaction of the Registrar. The appeal will not be heard until the security is furnished, and if the security is not furnished by the 1st June the appeal will stand dismissed with costs.
12. The Appellant must pay the Respondent's costs of this application.
13. Since the delivery of judgment, my attention has been drawn to the case of Sabitri Thakurain v. Savi A.I.R. 1921 P.C. 80, which is a decision of the Judicial Committee at the Privy Council and which confirms the opinion which T have already expressed.
14. I agree.
15. The question is, in my opinion, one of procedure : and even if the view were taken that Order 41, Rule 10, C.P.C., does not of its own accord apply to appeals from the Original Side and even in the absence of any rule on the subject made by this Court, under the powers conferred by Section 129 of the Civil Procedure Code, I should have been disposed to say that a Court having the general powers of this Court would have ample jurisdiction to demand in proper cases security from, an Appellant for the coats of the appeal. It appears, however, that it has been decided by this Court in the case to which the learned Chief Justice has just referred that Order 41, Rule 10 does apply to appeals from the Original Side; and, that being so, there is nothing further to be said in the matter. Since judgment was delivered, our attention has been called to the decision of their Lordships of the Privy Council in Sabitri v. Savi A.I.R. 1921 P.C. 80 which puts the question beyond doubt.