Narain Pasi vs Nanu Mistri and Others

This is an application by the respondents in which they ask this Court to direct the appellant under Order XLI, Rule 10 to furnish security for the costs of appeal and of the Courts below. The allegations made in the petition are that the appellant has no property from which the decree for costs passed by the lower Appellate Court or which may be passed by this Court may be realised; that he is a mere, tool in the hands of one Ramlakhan Mahto, and that the respondents executed the decree for costs amounting to Rs. 675 obtained by them in the lower Court and the defendant was sent to civil prison, but he did not pay any part of the decretal amount. The matter came up before the Registrar who relying upon the decision of this Court in Raghunath Das v. Sheo Kumar Misser 1 PLT 114 : 55 Ind. Cas. 835 : AIR 1921 Pat. 233 : (1921) Pat. 359, rejected the application of the respondents.

The Registrar interpreted that decision to mean that security is not to be demanded from an appellant, unless it is proved that he is merely a puppet in the hands of others and that he is merely a nominal party acting on behalf of others who are keeping themselves behind the scene. Now at the first sight it might seem that this is what was laid down by this Court in the case quoted by the Registrar, but upon a careful reading of the judgment delivered there it would appear that it was based on the special facts of the case which rested on the definite allegation that the appellant was a puppet in the hands of another person and that allegation was distinctly found to be false. There was, it is true, an observation made in that case that mere poverty of the appellant is no ground for demanding security, but I think that this observation was made chiefly to guard against the danger of laying down a uniform rule of practice which might deter a poor litigant from bringing up his grievance before the superior Court. It is to be remembered that Order XLI, Rule 10, gives an absolute discretion to the Appellate Court to decide in what class of cases security is to be demanded and as was pointed out by Macleod, C.J., in Devendra Marrappa Jingowda Vs. Shettappa Hooleppa Ventagatti, :

Where the Court has been given absolute discretion to make an order for security for costs, no Bench of Judges can lay down rules which purport to fetter the discretion of other Judges in any similar application which may be made thereafter.

We also respectfully agree with the view expressed by Macleod, C.J. in the same case that even though it is quite true that as a general rule a Court is loath to prevent an appellant from pursuing the remedy allowed to him by law merely on the ground of poverty, yet each case must stand on its own facts and there might be cases in which a party, because he is poor, should be directed to give security at any rate for the costs of the appeal, before he is allowed to proceed further. We might usefully refer here to the judgment delivered by Rankin, C.J., in Birendra Nath Mitra and Another Vs. Mt. Begum Jan and Others, , where while pointing out that there is a great distinction between an application for security for costs to be given by the plaintiff at the original trial in the first instance and such an application in connection with an appeal and that the CPC treats the two things as entirely different, he has referred to a number of English decisions in which it is stated that the ordinary practice in that country is to require security for costs from the appellant who is unable through poverty to pay the costs of the appeal. This practice is referred to by Sir George Jessel, M.R. in Harlock v. Ashberry (1882) 19 Ch. D 84 : 51 LJ Ch. 96 : 45 LT 602 : 30 WR 112, in the following words:

For sometimes past, it has been the settled practice, if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the respondent''s costs of the appeal if it should be unsuccessful.

Now, even though it may be that there is no such uniform practice in this country, yet it may be pointed out that just as mere poverty may not in a particular case be a ground for demanding security, similarly in the special circumstances of this case, security may well be demanded from an appellant who through poverty is unable to pay the costs of the appeal. In this particular case what we cannot ignore is that the respondent made an attempt to realise the costs decreed by the lower Court from the appellant, but failed to do so, even though in the execution of the decree for costs the appellant was committed to civil prison. The appellant in his counter-affidavit states in clear terms that he has some property, but in spite of this fact, he did not choose to pay the costs for which a decree was awarded to the respondent by the lower Appellate Court. In the circumstances of the case we think that the appellant should be directed to furnish security for the costs which may be incurred by the respondents in this Court. We do not, however, consider...to demand security for the costs of the Courts below for which a decree has already been granted by the lower Appellate Court. It may be mentioned that the respondents are willing to accept security in landed property. There will be no order as to costs of this application.