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Birendra Nath Mitra and anr. Vs. Mt. Begum Jan and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal40
AppellantBirendra Nath Mitra and anr.
RespondentMt. Begum Jan and ors.
Cases ReferredHarlock v. Ashberry
Excerpt:
- .....there appear to be not only the petitioner mortgagees but also a certain puisne mortgagee, and the suit appears to have been brought at the time when the puisne mortgagee was taking action to enforce his security. the case took a very long time when it actually came on for trial and a great many proceeding's appear to have taken place both in this court and elsewhere during the course of the suit.2. the hearing lasted for 38 days and in the result the suit was dismissed with costs, the learned subordinate judge taking the view that the plaintiff's allegations were entirely false and that the properties mortgaged by her husband were his own properties as between himself and the appellant. the costs which the plaintiff has been directed to pay to the petitioner in the lower court amount to.....
Judgment:

Rankin, C.J.

1. This is an application by certain respondents in a first appeal for an order for security for costs. It appears that the suit was instituted in 1923. The plaintiff is the wife of defendant 2 and her case is that certain mortgages which have been executed over the properties by her husband are invalid as against her in respect that the properties are not her husband's properties but are really her own. The suit was brought on the footing that the lady was in possession of her properties and required a mere declaration from the Court. It appears that large sums of money have been advanced on these properties and that the lady and her husband have had certain remarkable transactions one with the other. The case is that she had a large fortune in the shape of ornaments, gold coins and cash when she married defendant 2; that this defendant induced her to advance money to him and that she became a co-partner with him in a business named Bhagat & Company and then became the sole proprietor of that business in consideration of the payments made to her husband to lease his interest. She says that, in that way, she acquired a great deal of money which was under the control of her husband and that her husband has executed collusive leases and other documents in fraud of her. There appear to be not only the petitioner mortgagees but also a certain puisne mortgagee, and the suit appears to have been brought at the time when the puisne mortgagee was taking action to enforce his security. The case took a very long time when it actually came on for trial and a great many proceeding's appear to have taken place both in this Court and elsewhere during the course of the suit.

2. The hearing lasted for 38 days and in the result the suit was dismissed with costs, the learned Subordinate Judge taking the view that the plaintiff's allegations were entirely false and that the properties mortgaged by her husband were his own properties as between himself and the appellant. The costs which the plaintiff has been directed to pay to the petitioner in the lower Court amount to Rs. 2,499 and it appears that neither the petitioner nor the puisne mortgagee has been able to recover the same or any portion thereof. There have been costs awarded in respect of a revision application and those costs have not been recovered. Further, it is proved that the puisne mortgagee took out execution in respect of certain taxed costs in 1926 and nothing has been realized. It is not disputed that the lady appears to have no property which, in the event of her being unsuccessful could with any certainty be discovered. The view taken by the Subordinate Judge is that the husband is really putting forward the wife for his own purposes in the suit. In all these circumstances we have to consider whether this is a case in which security should be ordered as a condition of the plaintiff being allowed to prosecute the appeal.

3. I gather from the oases in India that there appears to be some confusion arising out of the failure to realize the great distinction between an application for security for costs to be given by the plaintiff at the original trial in the first instance and such an application in connexion with an appeal. The Civil Procedure Code is perfectly clear and treats the two things as entirely different. But it may perhaps be advisable to refer, in view of the fact that the Civil Procedure Code in the case of an appeal leaves the matter to the discretion of the Court, to the principles upon which this matter is determined in the English Courts. I refer first to the case of Hall v. Snowden Hubbard & Co. [1899] 1 Q.B.D. 593. That was the case of an appeal by the child of a deceased workman in a case under the Workmen's Compensation Act of 1897 and A. L. Smith, L. J., even in that case, applied the following rule:

The ordinary rule of this Court is that, except in applications for new trials, when the respondent can show that the appellant, if unsuccessful, would be unable through poverty to pay the costs of the appeal, an order for security for costs is made.

4. Again, In re Ivory Hankin v. Turner [1878] 10 Ch. D. 372 at p. 377, Cotton, L. J. said:

I think that the insolvency of an appellant is prima facie a sufficient reason for ordering him to give security for costs, though in some cases the Court may not order him to do so.

5. In Wightwick v. Pope [1902] 2 K.B. 99 the exception previously made in respect of costs of an application for a new trial, that is to say, an appeal from a trial by a jury, was reconsidered and it was decided that no exception would be made in that class of cases as had hitherto been done. And again in Harlock v. Ashberry [1881] 19 Ch. D. 84 Sir George Jessel, M.R., said this:

For some time past it has been the settled practice, if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the respondent's costs of the appeal if it should be unsuccessful.

6. In these circumstances it appears to) me that this is prima facie a case in which security for costs should be ordered; and, having regard to the nature of the suit and the findings of the Subordinate Judge whose lengthy judgment I have perused, I am clearly of opinion that there is no ground in this case for taking this case out of the general rule. It appears to me therefore that we ought to order that the appellant, within six weeks from the receipt of this order by the lower Court, do furnish security to the satisfaction of that Court in the sum of Rs. 2,499-4-0 being the costs of the Court below and in a further sum of Rs. 1,500 in respect of the costs of the appeal in this Court.

7. Costs of this application will be costs in the appeal. The hearing-fee is assessed at five gold mohurs.

C.C. Ghose, J.

8. I agree.


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