1. This is a somewhat unusual application. The petitioners were given leave to appeal to the Federal Court and the last day for depositing the security required by Order 45, Rule 7, Civil P. C was 28th February 1950. On 27th February 1950, the proposed appellants tendered security in immovable property which they value at over Rs. 20,060. This security was tendered in this Court within time and the question arises whether this Court can accept that security in lieu of cash or Government securities. Order 45, Rule 7, of the Code provides ; 'Where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date,-
(a) furnish security is cash or in Government securities for the costs of the respondent, and
(b) deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting to His Majesty in Council a correct copy of the whole record of the suit....
Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:
Provided further that no adjournment shall be granted to an opposite party to contest the nature of such security ....'
2. It is to be observed that the amount required to defray the expenses of translating and forwarding the record to Delhi has been deposited in cash and the only question is whether security in immovable property can be accepted in lieu of Rs. 4,000 in cash or in Government securities.
3. There can be no question that the proposed appellants could have asked for such an order when they obtained leave to appeal. The proviso to Sub-rule (1) of Rule 7, expressly permits the Court to allow such an application. However, no application was made at the time of ranting the certificate for leave to appeal and the question arises whether it can be made now.
4. I do not think that this is a case where the proposed appellants ask for an extension of time. It is true that time has elapsed, but as I have already said, this security was tendered within time and the only question that we have to decide is whether or not the Court has powar to accept security in immovable property instead of cash or Government securities. I may say that learned Advocate for the proposed appellants informed this Bench on 27th February that he had tendered security in immovable property and asked the Bench then to decide the matter. But we could not do so and adjourned the matter to today for decision. The application must therefore be treated as having been made to this Court within time.
5. We must now consider whether the Court has power to accept security in immovable property, though no application was made to the Court for permission to deposit such Security in accordance with the proviso to Order 45, Rule 7(1).
6. The Privy Council had drafted certain rules Relating to orders which this Court could make when the provisions of Order 45, Rule 7 had not been complied with. These rules have now been adopted by the Supreme Court. The Privy Council rule was Rule 9, of the Privy Council Rules dated 9th February 1920. The rule was in these terms: 'Where an appellant, having obtained a certificate for the admission of an appeal falls to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on an application in that behalf made by the respondent; cancel the certificate for the admission of the appeal and may give such directions as to the cost of the appeal and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires.'
7. This rule has been adopted by the Supreme Court and appears as Rule 3 of Order 12 of the Supreme Court Rules, 1950.
8. This Court has uniformly held that Rule 9, Privy Council Rules of 1920 did not give this Court a right to extend the time to make a deposit and that if deposit was not made as provided by Order 45, Rule 7, the Court was bound to cancel the certificate. Other Courts have taken a different view.
9. This Court however has never been called upon, as far as I can see, to consider whether or not the Court can accept security other than money or Government securities, especially if that security is tendered within the period allowed by Order 45, Rule 7. The Bombay High Court has clearly held that a Court can accede to an application to allow a change in the form of security though the time for making the deposit and for furnishing the security has elapsed. The matter was considered in the case of Revanshidaya Sangava v. Gudnaya Ningava A. I. R. (18) 1931 Bom. 278 (182 I. C. 488) in which it was held that notwithstanding the proviso to Rule 7, Order 45, the Rule 9 prescribed by the Privy Council prevails under Section 112 and the High Court has jurisdiction not only to extend the time for making the deposit and for furnishing the security but also to change the form of security in a fit case.
10. It will be impossible having regard to the authorities of this Court for this Bench to hold that we could extend the time for making the deposit, but I do not think that the authorities of this Court touch the question whether we could allow a different security, particularly if that was tendered within the time permitted in Order 45, Rule 7. It seems to me that we can make such an order if we are of opinion that it is an order which the justice of the case requires.
11. The proposed appellants are members of a well-known family owning large zemindary properties in East Bengal. The proposed appellants will take their father's property if they take it at all under the terms of a will made by their father. It appears that disputes have arisen and a learned Judge of this Court has appointed the Administrator General of West Bengal as trustee and executor de bones non of the estate of the late father of the proposed appellants and at the moment the proposed appellants are only receiving a sum of Rs. 2500 each for maintenance. Learned advocate informs us and we have no reason to disbelieve this statement that the Administrator General is finding it extremely difficult to pay the maintenance. The income must come out of this zemindary property, mainly out of the zemindary property in East Bengal and it is notorious that Zemindars residing in India find it practically impossible to realise the rents of their property in Pakistan. That being so, it appears to me that the proposed appellants are in very serious difficulty about providing the security in cash or in Government securities. Fortunately, however, one of them owns house property in Uttarpara outside Calcutta. It was bought in 1938 for Rs. 8,000 and it is certainly worth three or four times that sum now as the value of property has increased enormously in the industrial suburbs of Calcutta. It seems to me that this is a case where the justice of the case demands that we should accept some security other than cash or Government securities Owing to partition and the state of feeling between the two countries, for which the proposed appellants are in no way responsible, they find themselves in serious difficulties with regard to cash. They can provide ample security in immovable property and I think we should accept that as security deposited within the period, allowed by Order 45, Rule 7, Civil P. C.
12. It might be argued that as this Court has held that Rule 9, Privy Council Rules, does not permit the Court to extend the time it cannot he held to permit the Court to change the form of security. It appears to me that the authorities of this Court deal only with the extension of time and where the justice of the case demands that some other form of security should be accepted, I think this Court has jurisdiction to do it. If security in immovable property be not accepted in this case very grievous injustice might be done to the proposed appellants for no fault of their own.
13. In the result therefore we hold that the security in immovable property deposited must be accepted subject to the learned Registrar of the Appellate Side of this Court satisfying him self as to the title.
14. The proposed appellants have given an undertaking that they will again within six months deposit four thousand rupees in cash or Government securities in place of the immovable property now deposited as security. If that is done the immovable property given as security will be released. If that is not done, liberty is given to the proposed respondents to apply for further orders.
15. The costs of this application will be cost in the appeal, hearing-fee being assessed two gold mohurs.