D. Sitaraman and others vs S.S. Pattabhiraman alias Rathna

Ramaswami, J.—This is an application for review of my order passed by me in the following circumstances. On 2nd September 1957, I

passed the following order in C.M.P. No. 2995 of 1957:

Stay asked for will stand granted if security is furnished in the sum of RS. 5000 to the satisfaction of the trial Court with in two months from the

date of this order and failing which this application will stand dismissed with costs, This will be in addition to the sum of Rs. 2000 already

deposited, which will not be allowed to be withdrawn pending disposal of the appeal by the appellant.

The appellants in short have to furnish the security by 2nd November 1957. On 25th October 1957 they tendered security of property which

has been valued by the amin at over Rs. 11,000. Objection was taken that the first petitioner had only a fractional interest in the property as there

were minor sons and that there fore the security was insufficient. I may point out here that the contention of the first petitioner was that the

properties were his self acquired properties. But naturally this is not a matter which can be gone into here and the trial Court was justified in

treating them as joint family properties which is a normal presumption in the case of a joint Hindu family. Therefore, on this objection the trial Court

called for additional security on 4th December 1957 and time was given till 19th December 1957. On 18th December 1957 additional security

was tendered in the shape of substantial other property.

The respondent thereupon took the objection that the trial Court had no jurisdiction to extend the time.

The petitioners thereupon filed C.M.P. No. 333 of 1958, Since reported in 71 L.W. 440 in this Court for extension of the time that had been

granted by me in C.M.P. No. 2995 of 1957. This application was heard by Balakrishna Ayyar, J. who held that this Court bad jurisdiction to

extend time on a separate petition for stay or on a petition for review.

On a review of the entire case-law on the subject two propositions emerge, viz., that if the party bound to give security has done every thing in

his power like putting in a proper and genuine draft bond engrossed on stamp paper within the period prescribed and which if approved by the

Court can be converted into a legally enforceable security without any further act to be performed by him but owing to circumstances beyond his

control, like delay in testing or in registration, the giving of security could not be finalized, this would be compliance with the order of the Court to

give security and the fact that such registration etc., is beyond the time prescribed will make no difference and the lower Court can extend the time

to finalize the transaction. The relevant case-law to establish this proposition has been referred to by Ganapatia Pillai, J., in C.R.P. No. 298 of

1957 [Murugayya Pillai v. Seethalakshmi Ammal] relying among other cases upon a Bench decision of this Court in Marimuthu Goundar Vs.

Ponnammal and Others, , to which I was a party. This Bench decision followed Balakrishna Iyer v. Pitchamuthu Pillai 15 L.W. 186 and Puthiottil

Chathiyelan Kanna Kurup Vs. Mayimmoli Raman Nayar, In this decision Ganapatia Pillai, J., has extended the principle of the Bench decision

which related to the furnishing of security under S. 17 of the Small Cause Courts Act, to order passed under the CPC also.

The second proposition is that where there has been no compliance with the tetras of the order of the appellate Court granting stay and the

penal consequences prescribed have worked themselves out, it is open to that appellate Court on a petition for review to grant further time. This

conclusion has been arrived by Balakrishna Ayyar, J., in his order in C.M.P. No. 333 of 1958, referring to the following decisions; Balakrishna

Ayyar v. Parvathammal 53 M.L.J. 494=26 L.W. 293 followed by a Bench of the Andhra High Court in Peda Nasar Saheb v. Perecherla Nabi

Saheb (1956) 2 Anhd, W.R. 177, and to passages on pages 470 and 471 of Mulla''s CPC (12th Edition).I agree with this view that represents the

unbroken practice in recent years of this Court. This review application which has been filed in accordance with the direction of Balakrishna Ayyar,

J., is allowed and the trial Court is directed to accept the additional security now tendered.