GULABRAO MANYABA BHOITE Vs. VINAYAK BAPUSAHEB KADAM

JUDGEMENT

(1.) THIS is an application by a successful party in the Court below that this Court should demand from the appellant security for the costs of the appeal and of the original suit. The applicant proved that an attempt was made to execute the decree in his favour for costs, but without success. Undoubtedly under Order XLI, Rule 10, the appellate Court may in its discretion demand from the appellant security for the costs of the appeal or of the original suit, or of both. We were referred to the decision in Maneckji Limji Mancherji V/s. Goolbai (1878) I.L.R. 3 Bom. 241 in which a similar application was made, under the corresponding Section 549 of the then Civil Procedure Code (Act X of 1877). The Court declined to make the order, the Chief Justice saying "The poverty of the defendant is no ground for depriving him of his right to appeal." That was a decision on the facts of the case. It wan reported, because, I presume, it was considered that a rule of guidance for the exercise of the Court's discretion was thereby laid down. But where the Court has been given absolute discretion to make an order for security for costs, then in my opinion no Bench of Judges can lay down rules which purport to fetter the discretion of other Judges in any similar application which may be made thereafter. It is quite true that as a general rule a Court is loath to prevent an appellant from pursuing the remedy allowed to him by law merely on the ground of poverty. But each case must stand on its own facts, and there may be cases in which a party should be directed to give security, at any rate for the costs of the appeal, before he is allowed to go further. In this case the appellant is a minor who filed a suit through his next friend, his natural father, asking for a declaration that he had been validly adopted. He has lost in the trial Court, and we think that, as the costs in the Court below of the successful party could not be recovered, security should be given for the costs of the appeal. To that extent, therefore, we make the rule absolute. One month is allowed to give the security. What the nature of that security should be is for the lower Court to decide. It does not matter where the security comes from so long as it is sufficient. Costs costs in the appeal.