SHEW BUX MOHATA Vs. TULSIMANJARI DASI

JUDGEMENT

(1.) The short question of law which arises in this appeal is whether the Calcutta High Court had jurisdiction to extend the time for furnishing security for costs of the respondents under O. 45, R. 7 of the Code of Civil Procedure. The Calcutta High Court has held that it had no jurisdiction to extend time as prayed for by the appellants, and so the certificate already granted by it to the appellants to appeal to this Court against its own decree has been cancelled. The order cancelling the said certificate has given rise to this appeal by special leave; and so the only question which we are called upon to consider is one of construing O. 45, R. 7 of the Code as well as O. XII, R. 3 of the Supreme Court Rules.

(2.) The relevant facts leading to the present controversy are not in dispute. The appellants had instituted a suit (No. 73 of 1944) in the First Additional Court of the Subordinate Judge of 24 Parganas against the six respondents. In this suit they claimed a declaration of title to the immovable property in question and prayed for recovery of possession of the said property together with mesne profits. The learned trial judge decreed the suit on March 20, 1948. Two appeals were then filed against the said decree by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948). Of these two appeals Appeal No. 135 of 1948 was dismissed but Appeal No. 111 of 1948 was partly allowed and the decree passed in favour of the appellants granting possession and mesne profits to the appellants against respondent 3 was set aside. Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to appeal to this Court. The decree under appeal was one of reversal and the valuation of the subject-matter of the dispute both in the trial court and in the intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants were in fact entitled to a certificate under Art. 133 (1) (a) of the Constitution. Accordingly a certificate was issued on May 18, 1956. The last date for the deposit of the security amount of Rs. 2,500/- and the printing cost of Rs. 1,184/- was June 29, 1956. According to the appellants owing to circumstances over which they had no control they could not deposit the said two amounts on the due date. Consequently on July 4, 1956, they filed an application before the High Court praying that the requisite amounts tendered by them be accepted after condoning the delay made by them in the payment of the said amounts. This application was rejected on the ground that according to the uniform current of decisions in the said Court it had no jurisdiction to extend the time for depositing the amount of security. It is against this order that the appellants have come to this Court by special leave.

(3.) O. 45, R. 7 of the Code occurs in the Chapter dealing with appeals to the Supreme Court, and it deals with the security and deposit which are required to be made on grant of certificate to a party intending to prefer an appeal to this Court. O. 45, R. 7 (1) (a) provides that where 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, furnish security in cash or in Government Securities for the costs of the respondent. The words "within ninety days or such further period not exceeding sixty day" which occur in the first part of the rule have been added by Act 26 of 1920 in substitution for the words "six months" which were originally enacted in the said rule. It is common ground, and indeed it is not disputed, that prior to the amendment made in 1920 High Courts had jurisdiction to extend time for furnishing security for cogent and satisfactory reasons. In Burjore and Bhawani Pershad vs. Mt. Bhagana. 11 Ind App 7 (PC), the Privy Council had held, agreeing with the view taken by the Full Bench of the Calcutta High Court that the words in S. 602 of the Code of 1877 (Act X of 1877), in regard to extending time for giving security in appeal were directive only and there was jurisdiction in the High Court to grant extension of time for cogent reason. In other words, the time of six months prescribed by the statute could not be departed from without cogent reason. As a result of this decision under the provisions of O. 45. R. 7 as they stood until the amending Act 26 of 1920 was passed all the High Courts consistently exercised their jurisdiction in the matter of furnishing securities and extended time where they were satisfied that there was a proper and valid reason to do so. The question which arises for our decision is whether by the amendment made in 1920 this position has been altered.