SHANKAR DYAMANGONDA PATIL Vs. PUTTABAI GURUNATHGONDA K PATIL

JUDGEMENT

(1.) THIS is an application to allow the applicant to give substituted security for the cash payment, which he was required to make in relation to an appeal to the Privy Council. The application raises a point of practice, which has led to a difference of opinion between this High Court and other High Courts.

(2.) UNDER Order XLV, Rule 7, Civil Procedure Code, an applicant desiring to appeal to the Privy Council is required, 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, to furnish security in cash or in Government Securities. The decree in the present case was passed on January 19, 1938, and the certificate was issued on December 14, 1938. Therefore, it seems to me clear that under Order XLV, Rule 7, no extension of time could be given beyond six weeks from December 14, 1938. But it is argued that an extension can be allowed under Rule 9 of the Privy Council Rules, which came into force on the same day as the amendment to Order XLV, Rule 7, which prescribed the period which I have referred to. Rule 9 is in these terms: 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 an Order admitting the Appeal), the Court may, on its own motion or on an application in that behalf made by the Respondent, cancel the certificate for the admission of the Appeal, and may give such directions as to the Costs of the Appeal and the security entered into by the Appellant as the Court shall think fit, or make such further or other Order in the premises, as in the opinion of the Court, the justice of the case requires.

(3.) IN the present case apparently an order was made (rightly or wrongly) ex parte extending the time to February 25 next, that is to say for a period which still has three days to run, but it is obvious that if we are to accede to this application on the merits, a further extension will have to be allowed. The applicant, who is a minor, says that he is unable to provide the Rs. 4,000 in cash which is required of him. But he says that he can raise the money on the security of immovable property worth at least Rs. 40,000. Obviously, there would have to be an inquiry as to the value of the property which he proposes to substitute. But, whatever the value of that property may be, I can see no reason why this application should not have been made within the period limited by Order XLV, Rule 7.The applicant has known his financial position ever since the decree was passed. If the property is really worth as much as he alleges, I should have thought he would have had no difficulty in raising the sum which he requires on the security of that property. IN my opinion, on merits, no case is made out for authorising the applicant to give substituted security.