1. I think that the preliminary objection must prevail. It is very important that in cases of this class, that is of a reference from the Small Cause Court to this Court, that the provisions of the statute which governs the matter should be strictly complied with.
2. The judgment in this case was given on the 28th of May 1900. It was a judgment contingent upon the opinion of this Court, and it was submitted to the Court upon a reference under Section 70 of the Act (Act XV of 1882).
3. Section 70 says, that 'when judgment is given under Section 69, contingent upon the opinion of the High Court, the party against whom such judgment is given shall at once furnish security to be approved by the Small Cause Court for the costs of the reference and for the amount of such judgment,' and then the section goes on to say, that 'unless such security is at once furnished the party against whom such contingent judgment has been given shall be deemed to have submitted to the same.'
4. It appears that, on the 30th of May 1900, the defendant deposited a sum of Rs. 1,743 odd in Court. That was not a deposit sufficient to cover the costs of the reference and the amount of the judgment. The judgment was, as I understand, for Rs. 1,809 odd; therefore, the deposit made on the 30th of May was not a deposit, within the meaning of Section 70. On the 20th of June the balance of the debt and costs was deposited, but no deposit was made for the costs of the reference: though on the 14th of November the costs of the reference were tendered and accepted by the Court on an ex parte application and subject to any objections.
5. In the meantime apparently the reference was sent up some time in July; objection is now taken that the money was not deposited 'at once' within the meaning of Section 70, and that being so, that the defendant, against whom the contingent judgment was given, must be deemed to have submitted to the same. The security is to be furnished 'at once.' It would be absurd to say that it was furnished 'at once'; for the judgment was on the 28th May, and the money was not fully deposited until the 14th November, nearly six months afterwards.
6. It is urged that this delay was attributable to some mistake on the part of some officer of the Court, but no affidavit in support of this suggestion has been filed, though there has been ample time to file it. On this head then there are no materials upon which we can act judicially. It is suggested that the case of C. Fornaro v. Ramnarain Sookdeb (1857) 14 B. L.R. 180 assists the defendants. There is a distinction between the provisions of the section under which that case was decided and the section we are discussing, inasmuch as here we have the words, 'unless such security, as aforesaid, is at once furnished, the party against whom such contingent judgment has been given shall be deemed to have submitted to the same,' which are not to be found in the section upon which the decision in the above case turned. But apart from this, I should feel much doubt whether there is any power in this Court to extend the time for furnishing security; no such power is given by the Small Cause Court Act, and it is not easy to see whence this Court has acquired any such power.
7. As soon as the judgment is given, the party against whom such contingent judgment is given should at once furnish the required security; in the present case that was not done until nearly six months after the judgment was pronounced. The preliminary objection must prevail, and the reference must be dismissed and the defendant must pay the plaintiff's costs of the reference.
8. I am of the same opinion.
9. I am entirely of the same opinion.