SRINIVASAM PILLAI Vs. RUKMANI AMMAL

JUDGEMENT

(1.) The plaintiff (now respondent) sued on a promissory note and in the appeal from the dismissal of her suit the defendant applied for and obtained an order directing her to furnish security for costs. The property which was tendered for this purpose was found insufficient and the Court gave her further time to supply the deficiency up to 13 February, 1926. This was not done and on that date neither she nor her pleader was present. The Subordinate Judge, therefore, passed an order. Appellant and her Vakil are absent, security not given. The appeal stands dismissed with costs.

(2.) That order was actually passed on the application (IA. No. 2202 of 1925) for security filed by the defendant, but it of course involved also the dismissal of the appeal. On 16 March, 1926, the plaintiff applied for a review of the order passed on I.A. No. 2202 and the learned Subordinate Judge granted it, at the same time restoring the appeal and allowing another petition by the plaintiff for further time within which to furnish security. We have now before us a Civil Revision Petition against the order in I.A. No. 969 of 1926, which was the order restoring the appeal, and a Civil Miscellaneous Appeal against the order in I.A. No. 970, which was, if we look to its terms, an order reviewing the order passed in I.A. No. 2202.

(3.) It is clear that the primary question which we have to decide is whether the Subordinate Judge was competent to restore the appeal; because until it was restored no further action upon the security petitions could have been taken. Security is demanded from an appellant under Order 41, Rule 10 and Sub-rule (2) of that rule requires that if there is default in furnishing security the Court shall reject the appeal. Having rejected it, is the Court competent to restore it if sufficient cause for the failure to furnish security within the time allowed is shown? It has been suggested that this power may be derived in two ways : (a) by reviewing the order of rejection under Order 47, Rule 1 and (b) by applying the corresponding provision contained in Order 25, Rule 2 for the restoration of a suit by force of Section 107(2) of the Code. As regards the power to review it has been held by this Court in Vemareddi Ramamaraghava Reddi V/s. Rajah of Venkatagiri (1926) 52 M.L.J. 123 that the words "other sufficient cause" in Rule 1 of Order 47 would not include such a ground as an explanation of default of appearance and this is in accordance with the judgment of the Privy Council in Chhajju Ram V/s. Neki (1922) I.L.R. 3 Lah. 127 : 49 I.A. 144 : 43 M.L.J. 332 (P.C.) which lays down that these words must mean something ejusdem generis with what precedes them. Even the learned Judges who decided Sundar V/s. Habib Chik (1920) I.L.R. 42 All. 626 which it may be noted was prior to the Privy Council judgment, leave the question open whether in such circumstances the order could be reviewed. It is unnecessary further to discuss this point as I Have come to the conclusion, though not without sortie hesitation, that the order restoring the appeal may be justified upon the second ground. At first sight I was inclined to accept the appellant's argument that since there is no provision in Order 41, Rule 10 corresponding to that in Order 25, Rule 2(2), enabling a suit to be restored, it must be concluded that the intention was not to confer a power of this kind upon an Appellate Court. Where a power might have been, but has not been expressly conferred, it must be deemed, it is said, to have been withheld. If all the provisions relating to appellate procedure were self- contained, this argument, I think, might be conclusive. But that is not Secs.107 of the Code invests an Appellate Court with the same powers and duties as are conferred and imposed upon a Court of Original Jurisdiction subject to such conditions and limitations as may be prescribed by rules under the Code. Subject, therefore, to anything which the rules may have to say, it follows that since a Trial Court may restore a suit dismissed for failure to furnish security, so also may an Appellate Court restore an appeal rejected for the same reason. We have thus to consider whether the rules deprive an Appellate Court of a power which, but for them it would possess under the Code. This aspect of the matter does not seem to have been brought to the attention of the learned Judges who decided Sankaralinga Chetti V/s. Annamalai Chetti (1908) 19 M.L.J. 304. It was suggested by my learned brother during the course of the argument, and to him also is due an elucidation, which I think may be accepted, of the existence of an express provision in the rules for the taking of security in appeals, while no such provision occurs empowering restoration of an appeal rejected for failure to furnish it. It is a sufficient reason for the presence of Sub-rule (1) of Rule 10 of Order 41 that the circumstances in which security may be taken in an appeal differ widely from those in which it may be taken in a suit. The desired object could not, therefore, have been achieved by leaving Section 107 to operate upon Order 25, Rule 2(1). But it may be so left to operate, so far as Sub-rules (2) and (3) of that rule are concerned, because the terms of those sub-rules are appropriate to the case of appeals. Nor does any reason occur to me on principle, why an Appellate Court should not possess this power of restoration. The circumstances of the present case appear to me to afford an illustration of the necessity for it.