D. Weston and Others vs Peary Mohan Das

Lawrence Jenkins, C.J.—This is an application to this Appellate Court under Order XLI, Rule 10 of the Code of Civil Procedure, which empowers the Court in its discretion to demand from the appellants, security for the costs of the appeal, or of the original suit, or of both, The only materials on which we are entitled to decide this application are the allegations contained in the petition. Those allegations are un-contradicted, and it has been stated before us by Mr. Garth very candidly that they are admitted to be correct. Now, it is stated in that petition that the respondent''s costs which have been ordered to be paid amounted to a very large sum, roughly estimated, of about two lacs and fifty thousand rupees; that the appellants have no such means as to be able to pay the cost; that the appellants have no Immovable property from which the costs can be realised, and that the prosecution of the appeal will entail a very heavy expenditure on the part of the plaintiff respondent, and, then it is said that the suit was and the present appeal is being carried on by the Government on behalf of the appellants at an enormous expense. It appears to me further, having regard to the action of the Government, that the Government is really interested in this litigation for reasons which have been indicated in the course of the argument. In these circumstances, I think this is eminently a case where we should exercise our discretion in favour of directing security for costs, and there will be an order, as prayed, for such security.

The only question that has arisen as to the nature of the security is a doubt which was suggested by Mr. Garth whether the respondent would be satisfied with the bond of the Secretary of State for India in Council. The respondent says that he would be perfectly satisfied with such security, so that if the appellants are prepared to offer such security, then the security, in that form can be taken in the circumstances of the case. In view of the admission of Counsel on behalf of the appellants and the difference in the circumstances of the case, I do not think we need be concerned with the determination of the Court in another case to which a brief allusion was made.

The costs of this application will be costs in the appeal.

Woodroffe, J.

I agree.