REVANSHIDAYA SANGAYA Vs. GUDNAYA NINGAYA

JUDGEMENT

(1.) This is an application to extend the time for making the deposit of Rs, 2,000 and also to change the form of the security required under Clause (a), Order XLV, Rule 7.

(2.) It is urged on behalf of the opponent, relying on the proviso to Order XLV, Rule 7, and the decision in the case of Arunachala Naidu V/s. Balkrishna & Co. , that it is permissible for the Court at the time of granting the certificate, after hearing the opposite party, to change the form of the security, and that after the certificate has once been granted the Court has no jurisdiction to change the form of the security. The proviso governs Clause (a) of Order XLV, Rule 7. According to the decision of the full bench in Nilkanth Bulwant v Vidya Narrsinha Bharati (1927) I.L.R. 51 Bom. 430, s.c. 29 Bom. L.R. 302, F.B. the Court can, under Order XLV, Rule 7, of the Civil Procedure Code, read with Rule 9 of the Privy Council Rules, enlarge the time for furnishing security and making the deposit, beyond the period prescribed by Order XLV, Rule 7. Rule 9 of the Privy Council rules appearing at page 44 of the Rules of the High Court of Bombay, Appellate Side, 1929, runs 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 duo 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.) The reason underlying the decision of the full bench in Nilkanth Balwant V/s. Vidya Narsinha Bharati authorises a change in the form of the security if the justice of the case requires when the appellant having obtained the certificate for the admission of an appeal fails to furnish the security required. The proviso to Rule 7 of Order XLV lays down 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, Rule 9, however, of the Rules prescribed by the Privy Council lays down that if the appellant, having obtained a certificate, fails to furnish the security required, the Court can make such further or other order as the justice of the case requires. The words "such further and other order" are wide enough to cover an order changing the form of the security. Under Section 112 of the Civil Procedure Code the rule prescribed by the Privy Council prevails notwithstanding the proviso to Rule 7 of Order XLV. We think, therefore, that this Court has jurisdiction not only to extend the time for making the deposit and for furnishing the security, but also to change the form of the security.