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In Re: Goberdhone Seal and Vs. Lakhypria Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.3
AppellantIn Re: Goberdhone Seal and ;rajkishori Dasi
RespondentLakhypria Dasi
Cases ReferredSesha Ayyar v. Nagarathna Lala
Excerpt:
civil procedure code (act v of 1908), order xli, rule 10, applicability of, to appeal from order in insolvency - security for costs from appellant presidency towns insolvency act (iii of 1909). - .....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. 1 am of opinion, therefore, that we have power to entertain and adjudicate this application under section 117 and order xli, 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 on 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 xli, rule 10, does not apply, there is no other provision applicable and in such a case it would be necessary to in.....
Judgment:

Woodroffe, J.

1. This is an application for security for costs in an appeal against a judgment passed by Chaudhuri, J., in Insolvency. It is unnecessary to recapitulate the facts which are set out in the petition. The application is opposed both on grounds of law and fast. As regards the first question, the point is whether Order XLI, Rule 10, applies to the case of an appeal from an order passed by a Judge in Insolvency under Act III of ] 909. Section 8(6) 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 Lala 27 M. 121 at p. 123 : 13 M.L.J. 362, 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. 1 am of opinion, therefore, that we have power to entertain and adjudicate this application under Section 117 and Order XLI, 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 on 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 XLI, Rule 10, does not apply, there is no other provision applicable and in such a case it would be necessary to in vote the provisions of Section 151. On the facts stated in the petition, and in particular on the findings of the learned Judge there stated, I am of opinion that security should be required of the appellant. The applicant is entitled to the costs of this application.

Lancelot Sanderson, C.J.

2. I agree.

Mookerjee, J.

3. I agree.


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