RATANCHAND DAYACHAND Vs. DAMJI DHARSEY

JUDGEMENT

(1.) This is an application by the respondents for An order directing the appellants to deposit such further security for the costs of the appeal as the Court may think fit, on the ground that the costs of the appeal will run into thousands of rupees beyond the 500 rupees deposited by the appellants under High Court Rule 736 when the appeal was filed.

(2.) A stay of execution of the decree of the lower Court was obtained on the appellants giving security to the extent of Rs. 35,000.

(3.) This is an appeal under Clause 15 of the Letters Patent, and it has been contended that Order XLI, Rule 10, does not apply to such appeals, and even if it did, that High Court Rule 736 is inconsistent with it and governs the case. The authority relied upon is Behram Jung (Nawab) V/s. Haji Sultan Ali Shustry (1912) I.L.R. 37 Bom. 572 : 14 Bom. L.R. 1106.It does not seem to me to matter much whether we hold that Order XLI, Rule 10, is not applicable, as the learned Chief Justice in the case just cited remarked that the appellate Court had the power to demand security if it thought fit to do so in the interests of justice. I also think that High Court Rule 736 is not inconsistent with Order XLI, Rule 10, as it merely prescribes the amount of security which an appellant shall deposit as a condition on which the appeal will be admitted. Although undoubtedly many of the rules in Order XLI cannot apply to appeals under the Letters Patent, I think it would be going too far to say that none of them are applicable. Certainly in Kessowji Issur V/s. Great Indian Peninsula Railway (1907) L.R. 34 I.A. 115 : 9 Bom. L.R. 671 it appears to have been considered in what circumstances the Appeal Court in a Letters Patent appeal may allow further evidence to be produced under Section 368 of the Code of 1882 corresponding to Order XLI, Rule 27.