Swarna Rajamma vs Thota Venkiah

Mack, J.—The petitioner obtained an order for stay in the High Court on 3rd September, 1948, which was made absolute on her furnishing

security in. Rs. 3,000 to the satisfaction of the Sub-Court, Bapatla, within six weeks from, that date and also depositing some costs and mesne

profits within the same period-The petitioner tendered a draft security bond on 17th. September, 1948. Her application was returned with some

objections. She re-presented it on 4th October,. 1948. It was then posted on 7th October, 1948, to 18th October, 1948 for objections. On that

date the Subordinate Judge held that the time allowed by the High Court order had expired on 15th October, 1948 and dismissed, the petitioner''s

application; and also disallowed time for filing objections to the draft security bond. This point has already been considered and decided by Yahya

Ali, J., in N.P. Ganapathy Naicker and Others Vs. A.M. Govindarajulu Naidu, . He held following the view taken by Happell J. in Rangaswami

Nadar Vs. Pitchaimani Nadar by next friend A.K.P. Chinna Nadar, that it was sufficient compliance with, such an order if the security had been

tendered in time and that it was not necessary that the testing of the security itself and the filing of the fair security bond should, be made within the

time prescribed.

Mr. Alladi Kuppuswami has relied on the decision of Ramesam, J. in Balakrishna Aiyar v. Pichamuthu Pilla (1921) 15 L.W.186 followed by

King, J., in Puthiottil Chathiyelan Kanna Kurup Vs. Mayimmoli Raman Nayar, . That was a decision u/s 17 of the Provincial Small Cause Courts

Act where a defendant against whom an ex parte decree was passed on 26th. January, 1920, filed a draft security bond on 6th February, 1920,

which was ultimately accepted on 9th March, 1920, and he only filed his fair bond on the 1st April, 1920. It was held that the filing of the draft

bond was not sufficient compliance with the requirements of Section 17 of the Provincial Small Cause Courts; Act. King, J., following this decision

referred to the decision of Happell, J, in. Rangaswami Nadar Vs. Pitchaimani Nadar by next friend A.K.P. Chinna Nadar, , but felt that the

decision of Ramesam, J., was logically correct because in Section 17 of the Act an alternative was given, namely, deposit or security which had to

be complied within 30 days, and the: statute contemplated something effectually being done within this period. I prefer-in cases of this kind to

follow the view taken by Happell, J., and Yahya Ali, J. that when stay is ordered by an appellate Court on security being furnished within, a

particular period what the Court contemplated was the tender of security within that time. It would be manifestly inequitable if for no fault of his, a

petitioner obtaining such stay is penalised by time being taken for objections to a draft security bond and then finding himself in the position of not

being able to file a fair security bond within the time prescribed.

Mr. Alladi Kuppuswami has urged that the correct procedure contemplated, in the decisions u/s 17 of the Provincial Small Cause Courts Act

which, should be followed in these cases also is that a fair security bond should be filed, in the first instance; but at the same time he concedes that

it is always open to. the other side to object to the sufficiency of security, I am unable to see any difference, so far as finality is concerned, between

a draft security bond and a fair security bond, if the latter can be objected to for want of sufficiency or on any other grounds. This is a type of case

of common occurrence, in which I think it is sufficient if the security is tendered with a draft security bond within the time prescribed by the Court.

This does not mean that in the event of the security tendered being found insufficient it is open to the petitioner to file fresh security. He must take

his stand on the security that he furnishes, and if this is found to be insufficient, then his petition for stay fails. It is up to him to see that sufficient and

acceptable security is tendered by him in the first instance

In this view this petition is allowed, but there will be no order as to costs in. view of the legal position taken by the Subordinate Judge. The

lower Court will give time to the respondent to furnish objections, and dispose of the application, tendering security in due course on the lines

indicated.