Mettu Buggareddi vs Doddi Kanaka Durgaiah Naidu and Another

Umamaheswaram, J.

1.This is an application to set aside the order of this Court dated 15-6-1960 rejecting Appeal No. 519 of 1957 on the ground that the petitioner failed to furnish security for costs under Order XLI Rule 10, C. P. C in accordance with the order passed by this Court in C. M. P. No. 2936 of 1958 dated 18-6-1958.

The petitioner alleges in the affidavit that he was suffering from cataract and that he was consequently bed-ridden and nearly blind for a considerable time. It was only after he was operated in Guntur for the cataract that he came to know of the dismissal of the appeal for not complying with the order passed under Order XLI, Rule 10, C. P. C. The respondents denied these facts. An objection was also taken that an application to restore the order of dismissal of the appeal under Order XLI, Rule 10, C. P. C. does not lie. This objection is without force inasmuch as a Bench decision of the Madras High Court in Srinivasam Pillai Vs. Rukmani Ammal, held that having regard to the terms of S. 107(2), C. P. C. the Appellate Court has the same powers to restore an appeal as the trial Court has to restore a suit under the provisions of O. XXV, R. 2, C. P. C.

The learned Judges held that the mere fact that under Order XLI, Rule 10, C. P. C no provision is made for the restoration of the appeal is not a sufficient ground for refusing to exercise the powers under Order XXV, Rule 2 read with section 107(2) C. P. C. A contrary view was taken in Sankaralinga Chetti v. Annamalai Chetti, 19 Mad LJ 304 . That decision was distinguished on the ground that no reference was made to the express powers conferred on the Appellate Court under Sec. 107, Srinivasam Pillai Vs. Rukmani Ammal, was subsequently followed by another Bench in G. Sirur Vs. R. Mythili Ammal and Others,

The same view is expressed by Mr. Mulla, in his Commentary on Code of Civil Procedure, 12th Edition at page 1196, and the decision in Srinivasam Pillai Vs. Rukmani Ammal, is cited in foot-note (b) as an authority for that proposition. Following the decision in Srinivasam Pillai Vs. Rukmani Ammal, and G. Sirur Vs. R. Mythili Ammal and Others, we hold that an application for restoration of an appeal dismissed for not furnishing security for costs under Order XLI Rule 10, C. P. C. is maintainable. We wish to point out that it is necessary that Order XLI Rule 10, C. P. C. should be appropriately amended and brought in line with Order XXV Rule 2, C. P. C. and a specific provision made for the restoration in proper cases of appeals dismissed under Order XLI Rule 10, C. P. C.

3.On the merits, however, we are not inclined to restore the appeal as no sufficient grounds are made out as to why the petitioner did not comply with the order of this Court dated 18-6-1958. Even assuming that the petitioner had a cataract, it does not mean that he was not in a position to comply with the terms of the order by furnishing security within the time prescribed by this Court. The appeal came on for hearing nearly two years after the order under Order XLI Rule 10, C. P. C. was passed. We are therefore satisfied that there is no sufficient cause for restoring the appeal.

In the result the application fails and is dismissed with costs.