ANANDAMOYEE CHOWDHURANI Vs. GOKUL CHANDRA ROY

JUDGEMENT

(1.) The present petitioner is the plaintiff in a suit which she has brought against the defendant No. 1, who is the adopted son of her deceased husband, and certain other persons. The petitioner sued to have her title declared to, and to recover possession of, certain ornaments and other moveable properties which, she alleged, had been wrongfully removed from her custody by the defendants and belonged to her and did not belong to the defendant No. 1. She sought to recover possession of those properties or to obtain a decree for their value which she assessed at about Rs. 98,000. An application was made by the defendants in the suit under Order XXV, Rule 1, Clause (3), Civil Procedure Code, for an order from the Court directing the plaintiff to furnish security for the defendants costs in the suit. The plaintiff in the suit is a woman, and it was alleged that she did not possess any sufficient immoveable property within British India to cover the costs which might be incurred by the defendants in the suit. It seems that the plaintiff alleged that she was the owner of certain garden property in Dacca. A suit on a mortgage-bond had been brought against her by her daughter to recover the sum of Rs. 10,000. During the trial of that suit, the defendant No. 1 intervened and claimed that the garden property was, in fact, his property and that it did not belong to the present petitioner. The matter was gone into and it was, in the end, determined that the property did not belong to the petitioner but that it did belong to the defendant No. 1. In disposing of the application of the defendants in the suit brought by the plaintiff, which application was made under Order XXV, Rule 1, Code of Civil Procedure, the learned Judge of the Court below had to determine whether or not the present petitioner, the plaintiff, was possessed of sufficient immoveable property within British India to cover the probable costs of the defendants in the litigation. The only immoveable property of which she alleged she was in possession was this garden property and the learned Judge, in determining the question whether or not that property belonged to the petitioner, took into consideration the decision in the suit just referred to which had been brought by the petitioner s daughter against her. It is true that, in dealing with that matter the learned Judge remarked that the decision in that case might be treated as having decided the question of the right to the property between the defendant No. 1 and the petitioner, and that, therefore, the matter was res judicata; but the learned Judge also, in disposing of the matter, said that, on all the evidence adduced as well as on a consideration of the result of that case, he was not satisfied that the garden property belonged to the plaintiff. As the plaintiff did not allege that she had any ether immoveable property, the learned Judge granted the application and directed that the plaintiff should furnish security to the amount of Rs. 6,000. Against that order of the lower Court, the present Rule was obtained against the opposite party to show cause why that order should not be set aside on the ground that it was made without jurisdiction and that the question whether the plaintiff was possessed of sufficient immoveable property within British India had not been properly tried.

(2.) In support of the Rule, the learned Pleader who has appeared on behalf of the petitioner argued that the learned Judge had no jurisdiction to pass the order directing the petitioner to furnish security for costs as the suit was not a suit for the payment of money. We are unable to hold that there is any real substance in this contention. In several cases, the facts of which are very similar to the present case, it has been held that a suit like the present, which, though it may not be exclusively for money, will ordinarily result in a decree for money on the relief sought, comes within the purview of Section 380 of the old Code of Civil Procedure corresponding with Clause (3) of Rule 1 of Order XXV of the amended Code. These cases are Degumbari Debi v. Aushootosh Banerjee 17 C. 610 and Sonabai v. Tribhowandas Narotamdas Malvi 32 B. 602 : 10 Bom. L.R. 337. In our opinion, these two cases are sufficient authority for the view which we take that the suit brought by the petitioner is a suit for the payment of money within the terms of Clause (3) of Rule 1 of Order XXV, Civil Procedure Code. The learned Judges of the Bombay High Court in the case refer-ed to noticed that attempts were often made in that Court to avoid the applicability of the provisions of Section 380 of the old Code by introducing into the plaint either a quite unnecessary prayer for some unimportant or useless declaration or a prayer for administration of an estate. The learned Pleader who has appeared to oppose the Rule has argued that, in the present case, no declaration of the title of the plaintiff is really necessary, what she seeks in the suit is to recover the value of certain ornaments and other moveable property on the allegation that they are her property and do not belong to the defendant No. 1 and that they have been wrongly removed from her possession by the defendant No. 1. We are unable to hold that, because a prayer for declaration of her title has been introduced into the plaint, the suit is one which does not fall within the provisions of Order XXV, Rule 1, Clause (3), Civil Procedure Code.

(3.) The second point taken by the learned Pleader for the petitioner is that the lower Court erred in law in holding that the decision regarding the title to the garden property in the mortgage suit must be regarded as determining the question raised in the application made by the opposite party and that the matter was res judicata. Reading the judgment of the lower Court as a whole, we do not think that this point is of much consequence. Under the provisions of Order XXV, Rule 1, Clause (3), Civil Procedure Code, all that the lower Court had to do was to satisfy itself that the plaintiff did not possess any sufficient immoveable property within British India and the judgment of that Court shows that, on the evidence, the Judge was satisfied that the plaintiff was not in possession of the garden property which was the only property which, she alleged, belonged to her. In these circumstances, and having regard to the relationship between the parties and the facts connected with the institution of the suit and the other proceedings during the trial, we are of opinion that the lower Court was fully justified in the order which it passed requiring security from the plaintiff. The amount required is not also, in our opinion, excessive. It has been argued in opposition to the Rule that the order of the lower Court being an interlocutory order is not one with which this Court should interfere under Section 115 of the Code. We think that, so far as the present case is concerned, this is certainly not a case in which we should interfere under the provisions of that section; and we also think that, having regard to the facts stated and the conclusion at which we have arrived, it is not a case in which we should interfere under the powers of the Court under the Charter.