AI Structured Summary
Not yet generated for this judgment
Judgment
Subba Rao, C.J.—This is an application for permitting the to furnish Immovable property costs of the Respondents in the and to extend the time for with Order 45, 7 Code of Civil Procedure.
The Petitioners, who lost the Madras High Court, applied for leave peal to the Supreme Court. This Court leave by order dated 17-3-1955. The of did not furnish security in cash as pre by Order 45 Rule 7 CPC Having made default, have filed the present application for them to give security in Immovable pr the place of security in cash.
Learned Counsel for the despond was tends that this Court has no power to purest Petitioners to do so as under the pro view of Order 45, the Petitioners should have Chat relief at the time when the kanaka to granted. This said proviso reads:
Provided that the Court at the time of lug the certificate may, after hearing were party who appears, order on the ground of hardship that some other form of secrete furnished
Learned Counsel for the Petitioners, on hand argues that the rule is subject to 3 of the Supreme Court Rules, which says: ere an Appellant, having obtained a from the High. Court, fails to furnish surity or make the deposit required, that lay, on its own motion or on application behalf made by the Respondent, cancel inflate and may give such directions aft of the appeal and "the security enter-by the Appellant as it shall think fit or such further or other order as the justice requires". ''s rule corresponds to rule of the Privy "II Rubs.
A Division- Bench of the Madras High, consisting of Sir Lionel Leach C. J. and wain Aiyangar J. in - ''Shreeraraamurly arao 19392 Mad LJ Ml (A) held that, "n of the proviso to Order 45 Rule V, C, the Court has no power, after a, certain issued, to permit the Petitioner to give eable property security. The learned Judge an earlier decision of the same High t- ''Arunachala Naidu v. Balalulshna ''rapany AIR 1925 Mad 44) (B). two Judgments did not consider the Rule 9 of the Privy Council rules on the: to Rule 7 Of Order 45. A Division Bench Bombay High: Court,: on[ the other hand, anshidaya v. Gundna AIR 1931 Bom 278 relying upon, Rule 9 of the Privy Council , came to the conclusion that the High has the power: in a suitable case to allow Petitioner to furnish security of Immovable try even after the certificate is issued. As the question raised relates to procedure as the Madras Judgments do not consider of the Privy Council rule corresponding Le aforesaid Supreme Court Rule, we think question should jibe authoritatively decided Bench. Was there fore, refer the follow, question to the Full Bench.
other the High Court has power to per-m applicant, who obtained leave to appeal Supreme Court to furnish security in IB property when he did not ask for the I the time the certificate was issued
ORDER OF THE PULL BENCH ARAYANA RAJU, J.
The question which has been referred to Bench is whether the High Court hag permit an applicant, who obtained leave to the Supreme Court, to furnish secureable property when he did not ask relief at; the time the certificate was t is not disputed that if, Order 45, Rule 7, stood alone, the High Court has no alter the form of security to be But it is contended that Order 6 3 of the Supreme Court Rules, fit to do so. Reference is made in this to Section 112, CPC which en nothing contained in the Code shall be [to interfere with any rules made by the Court.
were is a large body of case law on the though most of the cases cited before ns with Rule 3 of Order 12 of the Supreme les (which now govern) but with the presided Rule 9 of the Privy Council such ran in substantially the same terms.
Though the argument for the Petitioner-rests on the terms of Order 12, Rule 3, of the Supreme? Court Rules, that rule must be read along with Order 45, Rule 7, Code of CPC because the former is obviously supplementary to the eater. Order 12, Rule 8, of the Supreme Court Rules runs thus:
Where an Appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court may, on its own motion or on application in that behalf made by the Respondent cancel the certificate and may give such directions as to the costs of the appeal and the security entered into by the Appellant as it shall think fit or make such} further or oilier order list justice of the case require
Order 41 Rule 7, CPC runs thus:
(J), Whore the certificate is granted, the applicant shall, within ninety days or .such further period, not) exceeding sixty days as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the-date of the grant of the certificate, whichever is the later date:
(a) Furnish security in cash or in Government securities for the costs of the Respondent, and (b) deposit the amount required to defray the expenses of translating, transcribing, indexing, printing and transmitting to the Supreme-Court a correct copy of the whole record of the-suit, except:
(1) formal documents directed to be excluded by any rule of the Supreme Court in force for the time being;
(2) Papers which the parties agree to exclude:
(3) Accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary and which the parties-have not specifically asked to be included; and
such other documents as the High Court, may direct to be excluded:
Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:
Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.
It is to be noted that the Original Rule of Order 45 was amended by the CPC (Amendment) Act (26 of 1920) whereby the words "within ninety days or such further period, not exceeding sixty days as the Court may upon, cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later-date" were substituted for the words "within six. months'' and the two provisos to Sub-rule (1) were-added.
On 1-1-1921, at the same time as this Amendment Act became law, the Judicial Committee-Rules previously in force were replaced by new-Rules of which Rule 9 is as follows:
Where an Appellant, having obtained a certificate for the admission of an Appeal, fails to furnish the security or make the deposit required or apply with due diligence to the Court for a order admitting the appeal the Court may, on its own motion or on an application in that bifacial made by the Respondent, cancel the certificate for the admission of the peal, and may vivo .such directions, as to costs of the appeal and the security entered into by the Appellant as the Court shall thinly of or make such further or other order in the premises as, in the opinion of the:Cowt,4he justice of the case requires.
Ah; examination of the above provisions shows that with Order 45, Rule 7, prescribes a period for furnishing the security and making the deposit, it Imposed | no penalty for non-compliance with those''-requirements. It ''Is only Huge of the Judicial Committee Rules (and the corresponding rule of the Supreme Court Rules) which coiners power on the Court to cancel the certificate or make such further or other order thereupon as the Justice1 of the case requires. This is a clear indication that Rule. 7 of Order 45 is merely directory.
Indeed, the: Judicial Committee decided as early as the decision reported in - ''Burjore v. Bhagana 10 Cal 557 (PC) (D) that it is only .such. In that daze their Lordships were dealing with Section 602 CPC 1877, which was in the same terms as the unlamented Rule 7 of Order 45 of -the Code of 1908. They observed that although the .period mentioned) in the Section should not be normally departed from, the High Court hoverer .has power to extend the time for cogent reasons. The Legislature must be deemed to have .been aware, of this decision when it brought in the Amendment Act 26 of 1920. Therefore, when .there is no indication in the Amending Act of 1920 to make the provisions other than directory, the follows that they must be construed in the light -of the above Privy Council decision as not being mandatory.
After the coming into force of the new provisions two questions came up for determination before the High Courts - whether by virtue of the over-riding effect of Rule 9 of the Judicial Committee Rules over the provisions of Order 45, Rule 7 the Court'' has power to extend the time allowed for furnishing security and for making the deposit as required by Order 45, Rule 7, beyond the periods mentioned therein; and (ii) to alter the nature of the security to be furnished at a time subsequent to the grant of certificate.
Four views are possible on these questions and there is authority in support of each of the four possible positions that could, be taken. Firstly, there is the view that despite Rule 9 of the Privy Council Rules the High Court has no power either to extend the time or alter the nature of the security later. This was the earlier view of the Allahabad High Court but it has not how ever found support either in that Court or in any other High Court since.
The Second view is that while the Court has power to extend the time, it has no power to after the nature of the security after the grant of the certificate. This is the view taken by a Full Bench of the Madras High Court in -- ''Ramayya v. Lakshmayya AIR 1938 Mad 796 (FB) (E) and in 1939 2 Mad LJ 521 (A)''.
While in the former decision, the Full Bench held that the Court had power under Rule 9 of the Privy Council Rules to extend the period allowed for furnishing the security and for making the deposit required by Order 45, Rule 7, beyond the periods mentioned therein, in the latter, a Divisional Bench following an earlier decision of the same Court reported in R. Arunachala Naidu Vs. S.R. Balakrishna and Co., held that by reason of the proviso to Rule 7 of Order 45, CPC Court has no power, after a curlicue Is issued, to permit an applicant to substitute other form of security. But unfortunately attention of the Bench was not drawn the earlier Full Bench, decision or Rule 9 Privy Council Rules. Indeed, the learned say:
The learned Advocate for the Petitioner been unable to point to any Privy Council which has the effect of overriding this or and that being so it must be given elfin (12) The third view is that though that no power in the High Court to extent That has power to alter the security a view which found favour with the Calcutta High Comt, - Purnendu Nath Tagore and Others Vs. Sree Sree Radha Kanta Jew and Others, . The fourth view is the High Court has power to be bout i.e. EC tend the time beyond the period limited by as well as to alter the form of security quant to the grant of the certificate.
This is the view of the Bombay High as expressed in AIR 1931 Bom 278 (C) It seems to us that only two logical are possible: (1) that the Court has power extend the time allowed for furnishing and (ii) to alter the nature of the security furnished even at the time subsequent to the of the certificate; or (2) that it has no power do either the one or the other.
The reasoning of the Full Bench in 1938 Mad 796 (FB) (E)'', a decision which Is upon us - leads to the conclusion that former view should be the more acceptable flat delivering the opinion of the Full Bench, C. J. gave the following reasons in support opinion:
Does Rule 9 of the Privy Council Rules a discretion to the Court to extend the that it does, nothing in Order 45, Rule 7, can raise that discretion. In my opinion Rule 7 a discretion in the Court, and therefore must vial over Order 45, Rule 7. I read Rule a way: On failure by the Appellant fur tort appeal to the Privy Council to furnish the ritzy or make the deposit the Court has two open to it.
It may cancel the certificate and pas quintal orders or it may instead of cancan certificate make such ''other'' order as it requisite. If it does not cancel the certifs. only other order it can pass is to extend Has for furnishing security or making the doing both as the case may be..........., We have been asked to hold that the ''make such further or other order in the as in the opinion of the Court, the case require are to be read with the ''may give such directions as to the costs appeal, and the security entered Appellant as the Court shall think fit'' UH respect to the Judicial opinion which as ported this construction, I consider its cackle would mean violating the plain rule.
We are in respectful agree this reasoning. Logically, however reasoning should apply with equal for determination of the question as to High Court has power subsequently to the nature of the security. If
We Full Bench decision, when they decided 1939 2 Mad LJ 521 (A) they would have has taken a different view. Bile provisions of Order 45, Rule 7, are, as Pd out by the Privy Council in the decision by cited, only directory and not mandatory be observed that they do not provide for a by for failure to comply with the require-c laid down thereby. It is only Rule 9 of Privy Council Rules (now Rule 3 of Order 12 is Supreme Court Rules) which, while pro-K for the consequences of default, also on the Court at the same time to pass "such If or other orders as the justice of the case fees".
A Divisional Bench of the Bombay High following earlier Pull Bench decision of I Court in - Nilkant Balwant Natu Vs. Shri Sachidanand Vidya Narsimha Bharati, , tin AIR 1931 Bom 278 (C) that if the Court had jurisdiction to extend the time h case, it had also power to alter the nature Be security subsequent to the grant of the facade for leave.
It is pointed out in this decision that the Is "make such further or other order as the le of the case requires are comprehensive fell to cover both the cases. 1(16) The general trend of recent decision fee different High Courts is that the Court power under Rule 9 of the Privy Council. K to extend the time for furnishing security led that allowed by Order 45, Rule 7 al-fell the Calcutta High Court has consistently la contrary view.
The latest view of the Allahabad High lass expressed in a Pull Bench decision of Judges of that High Court in - Bishnath Singh and Others Vs. Collector in Charge of Court of Wards Estate of Sri Ram Chandra Naik Kaliya, is that- I The provisions of Rule 9 which are wide general in their terms do confer upon the Courts a discretion to extend the time peered by Order 45, Rule 7, Code of CPC a discern. Interweaver which is only to be used in exceptional circumstances.
There is a decision of the Full Bench patina High Court reported in - ''Lachme-fr Prasad Shukul v. Girdhari Lai AIR 1931 7 (PB) (I) in which the majority took the that Rule 9 empowered the Court in exercises to extend the time. In Lahore, a If view was taken by a Pull Bench of that Court in - ''Ghulam Rasul v. Ghulam Qutab W AIR 1942 Lal 147 (PB) (J). the (Rangoon High Court also by a Pull m decision reported in - ''Ismail Piperedi v. m gibi AIR 1940 Rang 12 (PB) (K), over-ill an; earlier decision of the same Court in H NjSurty v. T. 3. (Chettiyar Firm AIR 1927 K 201 (L) held that the High Court has power cogent reasons to extend the time for fur. K security beyond that allowed by Order 45, IK The same is the view of the Nagpur High 8 expressed by a Full Bench in ''Gulam Hus-B, Mansurbeg AIR 1952 Nag 302 (PB) (M). 199) (As already stated in AIR 1950 Cal his a Divisional Bench of the Calcuta High; Consisting of Harries, C. J. and Bachawat, His that while they were bound by the ear-Rcisions of that Court to hold that time II not be extended, they were not so bound Hard "to the question as to the power of the Court to permit substitution of one form Hurity for another, even after the issue of handra lieddy J.) PES 14-24J Andhra 123 the certificate. This is an anamalous position which has been justified on the ground of stare decisis.
A recent decision of the Orissa High Court in -''''Pitamhari Dibya v.
Chandrasekhar Praharaj ALU 1954 Ori 71 (N) cited for the Respondent, remains to be noticed. There, a Divisional Bench of that High Court was dealing with Rule 3 of the Supreme Court Rules. Following -- 1939 2 Mad LJ 521 (A)'', the learned Judges held that the expression "at the time of granting the certificate" in the proviso should be read as being limited to the time when the Court orders the issue of a certificate. Panigralii, C. J. who delivered the judgment of the Bench, stated his view in these words:
The language of the Code does not either expressly or by implication, indicate that the Court can exercise this power at any other time subsequent to the grant of the certificate. The further proviso to the rule which says that no adjournment shall be granted to the opposite parties to contest the nature of such security would indicate bat all these matters should be decided at the time of granting the certificate.
Having regard to the addition of the proviso in the amended Rule 7, it appears to me that the object of the Legislature was to cut down the period unnecessarily occupied in presenting the appeal to the. Supreme Court and to leave no discretion with the Court to extend the time beyond what is expressly stated in the provision.
Tire learned Judges, however, conceded thai by virtue of the express provision in R. 3, the Court has power to extend the time. While it may be agreed that the object of the Legislature was to have a speedy disposal of the appeals before the Supreme Court, the object can as much be defeated by granting extension of time, as by permitting the alteration, of the nature of security.
However the object is not necessarily defeated in either case if it is remembered that the discretion which is vested in the High Court under Rule 5 of the Supreme Court Rules must be very sparingly exercised and only for cogent reasons. In any case, the question being one of jurisdiction of the Court, the matter cannot be decided merely with reference to the object of the Legislature, especially when it has not though fit to provide a penalty for non-compliance with the requirements laid down by Rule 7 of Order 45, Code of Civil Procedure.
For the reasons stated above, the answer) to the question referred to the Full Bench must! be in the affirmative.
SUBBA RAO, C.J.
I have had the advantage of reading the judgment prepared by my learned brother Satya-narayana- Raju J. I agree with him.
Bhimasankaram, J.
I too agree.