KUAR BALWANT SINGH Vs. KUAR DOULUT SINGH

JUDGEMENT

(1.) THIS comes before their Lordships in rather a peculiar way, and there is some difficulty in saying what in substance is the proper course to be taken. It appears that the Appellant is seeking to recover property in the possession of the Respondent, and that being defeated before the Commissioner of Jhansi, he appealed to the High Court. The Respondent applied that the Appellant might give security for costs, and on the 3rd of June, 1882, the High Court made an order directing the Appellant to shew cause why the Respondent's petition should not be granted. That order to shew cause was not properly served upon the Appellant, and on the 26th of June the Appellant then, as it would seem, knowing nothing about the order, a further order was made by the High Court in these terms: "Appellant has not appeared, and he is hereby required to deposit security to the extent of Rs. 2500 within six weeks from this date," viz., by the 8th of August. On the 5th of August the Appellant presented a petition shewing cause why he should not be ordered to give security, and on the 14th of August another order was made by the High Court. It is simply in these terms: "Security has not been filed within the time prescribed by the Court. The appeal is, therefore, of necessity struck off the file with costs." Whether the Court considered the merits of the cause then for the first time shewn by the Appellant, does not appear; but if they did, ho was not allowed any time at all to tender his security. On the 9th of September the Appellant presented a petition in which he stated the non-service of the original order to shew cause of the 3rd of June, and his ignorance of it until he got information in time to file his petition on the 5th of August; and he prayed for the restoration of the appeal. It would seem that, on that petition, an order was made dated the 13th of September, 1882; but their Lordships cannot tell certainly upon what proceedings that order was made, nor can they do more than guess at the terms of it, for by some omission which is entirely unexplained that order has not been transmitted to this country. The direction given by Her Majesty on the petition for leave to appeal was that the High Court should transmit the prior orders and also all subsequent orders relating to the refusal to restore the appeal, but for some reason or other this order has not been transmitted. The nature of it can only be gathered from a subsequent order which was made in this way. On the 27th of November, 1882, the Appellant again petitioned the High Court, and in that petition he states that "in obedience to the order of the Court, dated the 13th of September, 1882, the Petitioner submits herewith two security bonds for Rs. 2500, as detailed below, and prays that proper order may be made for the restoration of the appeal to its original number of file." Therefore it would seem that by the order of the 13th of September the Court had held that the Appellant must give security, and had allowed time for the purpose. On the 27th of November he tenders the security, and asks that the proper order may be made for the restoration of the appeal. Upon that there comes an order of the 29th of November, which their Lordships have great difficulty in understanding. It is a very short one. It does not say on what petition or proceedings it was made except that it was on a petition of the Appellant. It does not state who appeared upon it. The whole of the order is this: "The Petitioner's appeal was not dismissed under Sections 556 or 557 of the Civil Procedure Code. This petition, therefore, is not entertainable under Section 558 of that Code, and it is inapplicable to an order made, as ours was made, under Section 549 of the Code." It is extremely difficult to apply the terms of this order to the petition of the 27th of November, and it is a matter now of uncertainty and dispute what petition the order speaks of and what order it speaks of. The effect of it is apparently to maintain in full force the order of the 14th of August, by which the appeal was struck off the file.

(2.) IT appears to their Lordships that the case has never been fully considered by the High Court.