Lakshmi Achi vs Subramania Pillai and Others

Wadsworth, J.—The petitioner filed a suit claiming a declaration that she was j the trustee of certain properties and that a series of

alienations of these properties in favour of the various defendants were not binding on the trust. As she lived outside British India and she had no

properties within British India she was at the instance of various defendants required to furnish security for costs of the suit. She failed to furnish the

security within the time required and the suit was dismissed on 21st December, 1943. After this order she filed I.A. No. 25 of 1944, a petition to

restore to file the suit dismissed for failure to furnish security. She also filed another application praying the Court to receive a draft security bond.

With the latter, we are not now concerned. I.A. No. 25 of 1944 was dismissed and it is against the dismissal of that application that C. M. A. No.

434 of 1945 was filed.

In this appeal an application C. M. P. No. 2918 of 1946 was preferred by respondents 1 to 3 praying the Court to direct the appellant to

furnish security for the costs of those respondents in the appeal. That application was ordered on 4th November, 1946, and the appellant was

given six weeks'' time to furnish security to the satisfaction of the Subordinate Judge, Cuddalore. Security has not been furnished and the matter

now comes up for orders.

The appellant contends that the effect of her failure to furnish security for the costs of these three respondents should be that the appeal will

stand dismissed only as against these respondents. For the other respondents, it is, however, contended that the effect of the appellant''s default

should be that the appeal would be dismissed in toto. It is common ground that the provisions of Order 41, Rule 20 of the CPC are mandatory

and the only question is what is the precise effect of this rule in cases where there are numerous respondents and security for costs has been

ordered at the instance of only some of those respondents.

Rule 10 of Order 41, runs as follows:

(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of

the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both : Provided that the Court shall

demand such security in all cases in which the appellant is residing out of British India, and is not possessed of any sufficient Immovable property

within British India other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

In terms the rule only deals with the position where there is one appellant and one respondent. Ordinarily when a rule of procedure speaks of the

appellant and the respondent the rule would apply equally when there are several appellants and several respondents; but there are cases in which

the procedure applicable to a case where there is one party on either side might not be applicable in precisely the same way when there are

numerous parties and separate causes of action with reference to each of those parties. We are concerned with a matter arising out of a suit which

is in substance a combination in one action of what might have been a number of separate suits each dealing with a particular alienation in favour of

a particular party. In such circumstances, when three alienees only have asked for and obtained an order for security for costs which has not been

furnished, is it in accordance with Order 41, Rule 20 of the CPC that the appeal should be dismissed in toto or that the appeal should be dismissed

only as against those respondents in whose favour an order for security for costs has been made ? We wish to guard ourselves against attempting

to lay down any general rule of universal application in the present matter. There may be cases in which failure to furnish security for the costs of

one respondent must necessarily result in the dismissal of the appeal as a whole, as for instance, when the cause of action , was single and

undivided and the respondent who had got an order for security for costs was the main contesting respondent. We are now called upon to deal

with a case which arises out of a number of separate causes of action against separate defendants joined together for reasons of convenience

because in each case the questions relating to the dedication and the binding nature of the alienations are similar and raise substantially the same

points. The only reasoning in such cases on which it could properly be held that the failure of the appellant to furnish security for costs of certain

individual respondents should result in the dismissal of the appeal as a whole, would be that the provisions of the second clause of Rule 20 of

Order 41,must be regarded as provisions for the punishment of what is substantially a contempt. If on the other hand the second clause of this rule

is to be regarded as merely giving to the respondent in whose favour an order for security for costs has been made the logical consequence of the

failure on the part of the appellant to furnish security, it would then seem to follow that this consequence should be only to benefit the particular

respondent in whose favour the original order was made and not the other respondents interested in other alienations who have not moved the

Court for an order in their favour.

We have not been able to find any considered ruling on this question. Our attention has been drawn to two cases in which it has been assumed

without discussion that when security for costs is ordered in favour of one of the several respondents and has not been furnished within the time

allowed, the Court may reject the appeal only so far as that particular respondent is concerned. The first of these cases is G. Sirur Vs. R. Mythili

Ammal and Others, . That is a case arising out of a proceeding in insolvency in which there were three respondents. The first respondent applied

for an order requiring the appellant to furnish security for her costs in the appeal. That application was granted and the subsequent application by

the appellant to rescind that order was dismissed for default. Three days later the appeal itself was dismissed as against the first respondent under

the provisions of Sub-rule 2 of Rule 20 of Order 41 of the Civil Procedure Code. We have examined the original papers in this appeal and we find

that the order was first written as an order dismissing the appeal. The words "" as against the first respondent "" were added by way of interlineation.

This may be an indication that the learned Judges did apply their mind to the question whether the appeal should be dismissed in toto or whether it

should be dismissed only as against the first respondent in whose favour an order for security for costs had been ordered. In the subsequent

proceedings it seems to have been assumed that, there was nothing improper in the order dismissing the appeal only as against one of the

respondents.

The other case Kailash Chandra Kandar v. Harihar Patra (1918) 47 I.C. 928 is of a similar nature. Here the order in question was passed by

the District Judge and the Bench dealing with the subsequent appeal did not really go into the merits of the order of the District Judge but abstained

from criticism of it on the ground that the order was one of dismissal only as against the party for whose costs security had been ordered. As

against these two cases we have been referred to the decision of Muhammad Abdul Ghafur Khan v. Secretary of Stale for India in Council and

Ors. I.L.R.(1914) All. 325. That was a case in which there was an application by one of the several respondents that the appellant should be

ordered to give security for costs of the appeal and of the Court below. The order was passed and the security not having been furnished, the

appeal was dismissed as a whole under Order 41, Rule 20, Sub-rule (2) of the Code of Civil Procedure. Though it is clear that this was a case of

an application by a single respondent, we do not know whether the order required security for the costs of all the respondents or whether there

was any difference in the position of the various respondents having regard to the matters in issue. No consideration is given in the judgment to the

question whether the Court can in a proper case dismiss the appeal only against the respondent for whose costs security has been ordered.

Such authority as there is, at any rate so far as our own High Court is concerned, seems to indicate that in a proper case the Court can under

Sub-rule (2) of rule is of Order 41 of the CPC reject the appeal only so far as it is against those respondents in whose favour security for costs has

been ordered, leaving it to be prosecuted against the other respondents.

In a case like the present, we think that it is the more reasonable and equitable interpretation of the rule. Just because numerous separate causes

of action have been for convenience combined in a single suit, it would, in our opinion, be anomalous to visit upon the appellant the penalty of

losing her appeal in toto because of her failure to furnish security for the costs of certain out of the many respondents. We say nothing about the

question whether the other respondents who have not so far asked for an order for security for costs in their favour can or cannot make such a

prayer hereafter. At present it is sufficient to say that by reason of the failure of the appellant to furnish security for the costs of respondents 1, 2

and 3 the appeal is dismissed with costs as against those three respondents.