RADHIKA DEVI Vs. LALITA SARAN

JUDGEMENT

(1.) This miscellaneous appeal is by the plaintiff appellants against an order refusing to restore the appeal filed by them in the court of appeal below.

(2.) The title appeal filed by the plaintiff appellants arose out of a suit for declaration of title and confirmation of possession. The appeal was filed sometime in the year 1967. On 15-12-1969 the defendant respondents filed an application before the court of appeal below under O.41, R.10, Civil P. C. (hereinafter referred to as 'the Code') for a direction that the appellants may deposit the security for the cost of the appeal as well as cost allowed in the suit. The ground urged in the petition was that the appellants were removing their moveables and they are not possessed of any immovable property in India. It is further stated that in the event the appeal is dismissed with costs, they will not be able to realise the cost. A rejoinder petition was filed wherein it was taken that even though the appeal was filed in the year 1967, the respondents after the lapse of two years chose to file this petition and, therefore, they will be deemed to have waived their right to recover cost in advance. It is also stated that no instances of removing moveables have been disclosed in the petition and the said fact is a downright falsehood. It was also contended that merely they are poor men and they may lose the appeal is no ground for realising the cost in advance.

(3.) On 29-8-1970 the court of appeal below while directing to furnish security in cash to the extent of Rs. 200/- on account of approximate costs of the appeal, founded the order on the reason that O.41, R.10 of the Code cast an absolute discretion on the court to decide in what classes of cases security is to be demanded. The court of appeal below made no reference in its order whether the appeal filed was frivolous. It also did not find that the appellants were removing any moveable. The only ground which persuaded it to pass that order that the appellants had made no submission as to whether they were possessing any immoveable property. The security asked for was only for approximate cost of the appeal and not of the trial Court.