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Srimati Hari Bhabini Debi and anr. Vs. Narendra Nathroy, Pleader and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal317,67Ind.Cas.883
AppellantSrimati Hari Bhabini Debi and anr.
RespondentNarendra Nathroy, Pleader and anr.
Cases ReferredBalwant Singh v. Daulat Singh
Excerpt:
civil procedure code (act v of 1908), order xli, rule 10 - security for costs, appeal dismissed for failure to furnish--court, power of, to extend time for furnishing security. - .....was a mortgage and not a conveyance. the suit was heard and the court disbelieved the story of the present petitioners, the plaintiffs in the suit. the present petitioners preferred an appeal against the decree dismissing their suit, and thereupon the respondents applied for an order that they should give security for costs. an order was made directing security to be given by the petitioners for costs in a sum of rs. 300. we are satisfied from the order-sheet that on this occasion the petitioners were represented by a pleader. the security was not given within the time ordered and on the 25th june 1921 the respondents to the appeal applied for dismissal of the appeal. the appellants' pleader said that his clients intended to apply for further time within which to give the security and.....
Judgment:

1. This Rule was granted at the instance of the petitioners, the appellants, against an order of the Additional District Judge of Howrah of the 21st July 1921 refusing to restore an Appeal. Shortly, the material facts are as follows: The present applicants were plaintiffs in a suit to set aside a sale by them of a certain house property to one Narendra Nath Roy, their allegation being that they executed the document conveying the house to Narendra thinking that it was a mortgage and not a conveyance. The suit was heard and the Court disbelieved the story of the present petitioners, the plaintiffs in the suit. The present petitioners preferred an appeal against the decree dismissing their suit, and thereupon the respondents applied for an order that they should give security for costs. An order was made directing security to be given by the petitioners for costs in a sum of Rs. 300. We are satisfied from the order-sheet that on this occasion the petitioners were represented by a Pleader. The security was not given within the time ordered and on the 25th June 1921 the respondents to the appeal applied for dismissal of the appeal. The appellants' Pleader said that his clients intended to apply for further time within which to give the security and thereupon, as I suppose, the Judge was not satisfied that there was really to be a genuine application, he rejected the petitioners' application, Then, on the 21st July, an application was made to the District Judge to restore the appeal. The Judge refused the application saying that he did not know under what provisions of law the application was made. We think the order of the 21st July was perfectly right. By the order dated the 25th June the District Judge had rejected the appeal and consequently on the 21st July he had no jurisdiction remaining him to extend the time for giving security having regard to the fast that he had rejected the appeal. The learned Vakil for the petitioners relied on the case of Balwant Singh v. Daulut Singh 13 I.A. 57 : 8 A. 315 : 4 Sar. P.C. J.707;4 Ind. Dec.(N.S.) 1176; ( P. C.). But in that case the Judicial Committee found it very difficult to understand exactly what order was made by the High Court and as we read the decision, it is not a decision that, in circumstances similar to the present, namely, where an appeal has been rejected an order can subsequently be made extending the time for giving security, all that the Judicial Committee did was in the uncertain state of things in the exercise of their own power to restore the appeal. It does not seem to us that the case reported as Balwant Singh v. Daulat Singh 13 I.A. 57 : 8 A. 315 : 4 Sar. P.C. J.707;4 Ind. Dec.(N.S.) 1176; ( P. C.) is any authority for the proposition that if the Court has rejected or dismissed an appeal it is still open to that Court to extend the time for giving the security or to do any other act relating to the appeal which has already been finally disposed of.

2. The result is that this Rule is discharged with costs, the hearing tea being assessed at one gold mohur.


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