G SIRUR Vs. RMYTHILI AMMAL

JUDGEMENT

(1.) This is an application by die appellant in O.S. Appeal No. 63 of 1930 to set aside the dismissal of that appeal as against the 1 respondent and to review or set aside certain interlocutory orders passed in the same appeal. The appeal was from a judgment of Waller, J., dated the 15 October, 1929, annulling the adjudication of the 2nd respondent and directing the appellant to pay the 1st respondent's costs. It was admitted on the 1 September, 1930 and on the 8th November the 1 respondent applied for a direction that the appellant should furnish security for her costs in the appeal. The application was allowed ex parte on the 19 December, no one appearing on behalf of the appellant, who was directed to give the required security within one month from that date. On the last clay of that period, the 19 January, 1931, an application was filed on behalf of the appellant (C.M.P. No. 548 of 1931) to rescind this order. That also was dismissed for default on the 10 February, again, no appearance being put in for the appellant. On the 13 February the appeal itself was dismissed under the provisions of Sub-rule (2) of Rule 10 of Order 41, Civil Procedure Code. It is this last order which the appellant primarily attacks, and in order to do so he pleads that the order of the 10 February cannot be sustained because on the previous day, the 9th, he was adjudicated insolvent and, further, that he had sufficient cause for not appearing before the Court when the original order to give security was passed on the 19 December.

(2.) It is indisputable that before the Court can set aside the orders of the 10th February and 19 December, it must restore the appeal itself, as unless the appeal is pending there can be no revival of the interlocutory applications, which depend for their existence upon the pendency of the appeal. As regards the restoration of the appeal the appellant has been met by the defence of limitation. There has been some difference of judicial opinion as to whether an appeal dismissed under Rule 10 (2) of Order 41 can be restored. It was held in Srinivasam Pillai V/s. Rukmani Ammal (1927) 55 M.L.J. 330, to which one of us was a party, that this could be done and for the purpose of this case we propose to assume the power. It seems clear, however, and indeed has not been seriously disputed before us that such an application must be governed by Art. 168 of the Limitation Act, which provides for the re-admission of an appeal dismissed for want of prosecution. This article for appeals corresponds, we think, to Art. 163 for suits and the latter article expressly refers to dismissal for failure to furnish security for costs. It is reasonable to hold that such a failure comes under the general description of "want of prosecution". If this is correct the appellant had thirty days within which to apply and it is not disputed that his application was forty-one days out of time. It has been vaguely suggested that the adjudication of the appellant affected this question, but in what manner has not been explained. Insolvency is not a disability under the Limitation Act and there is no reason to hold that the Official Assignee would have had a longer time within which to apply than the insolvent himself. We think accordingly that this objection is fatal.

(3.) The insolvency of the appellant is also the ground upon which we are invited to set aside or review the order of the 10 February, which dismissed for default an application to set aside the ex parte order directing the appellant to furnish security for costs. The point taken is, in brief, that the appellant was disqualified by his adjudication from conducting the application and that the Court before dismissing it ought to have given the Official Assignee an opportunity to carry it on. The cases relied on by Mr. V. V. Srinivasa Aiyangar for this position, Lekhraj Chuni Lal V/s. Sham Lal Narrondas (1892) I.L.R. 16 B. 404, Kissen Gopal Karnani v. Suklal Karnani (1926) I.L.R. 53 C. 844 Khunni Lal V/s. Rameshar (1921) I.L.R. 43 A. 621, and The Official Assignee of Rangoon V/s. Chidambaram Chetty (1920) W.M.N. 704, may be distinguished by the circumstance that in all of them the Court when it passed its order had been apprised of the insolvency. It had, therefore, an opportunity to apply the provisions of Order 22, Rule 8, Civil Procedure Code. In the present case this was not so. As has been stated, no appearance was put in and the Court was wholly unaware that the applicant had been adjudicated. On the materials before it, therefore, it had no alternative but to dismiss the application. It may be that in the peculiar circumstances of the case the Official Assignee could not reasonably have been expected to carry on the proceeding, but we have no information about that, and can only proceed upon the general principle that some one representing the applicant must have appeared to save the application from dismissal for default. We think, therefore, that no grounds have been shown for restoring this application, though we prefer to rest our decision upon other and perhaps more conclusive reasons. Even had the application been restored it is highly doubtful whether, the time within which to furnish security having expired, the Court was competent to take any action other than to dismiss the appeal. The mandatory character of Order 41, Rule 10(2) has been stressed by the Privy Council in Sabitri Thakurain V/s. Savi (1921) L.R. 48 I.A. 76 : I.L.R. 48 C. 481 : 40 M.L.J. 308 (P.C.), which was a closely analogous case. If security is not furnished within the time allowed, the Court is bound to reject the appeal. The petitioner might, of course, have applied for an extension of the time, or in some other way averted the operation of the order for security.