MATHUKUMALLI RAMAYYA Vs. VUPPALAPATTI LAKSHMAYYA

JUDGEMENT

(1.) The question which has been referred is whether in an appeal to His Majesty in Council the Court has power to extend the time for furnishing the security and making the deposit required by Order 45, Rule 7 of the Civil P. C. beyond the periods mentioned therein. The rule provides that where the certificate permitting the appeal is granted the applicant shall furnish the security and make the deposit within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date. The words: within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow were substituted for the words " within six months" by Act XXVI of 1920. The amendment was made in order to expedite appeals to the Privy Council by restricting the Court's discretion to extend the time. Up to then it had been the uniform practice in the Courts in India to grant extensions of time and it would appear that the impression had been created that they had been too lenient when dealing with such applications. The rule as it stood before the amendment was regarded by the Privy Council itself as being merely directory, although it had intimated that it should not be departed from without cogent reasons: Burjore and Bhawani Per shad V/s. Mussumat Bhagana (1883) L.R. 11 I.A. 7 : I.L.R. 10 Cal. 557 (P.C.).

(2.) Since the amendment there has been a conflict of judicial opinion on the question whether the amended rule has the effect which the legislature intended it to have. The conflict has arisen by reason of the provisions of Rule 9 of the rules framed by the Privy Council and Section 112 of the Civil P. C.. Rule 9 reads as follows: Where an appellant, having obtained a certificate for the admission of an appeal, fails to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on an application in that behalf made by the respondent, cancel the certificate for the admission of the appeal, and may give such directions as to the costs of the appeal, and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises, as in the opinion of the Court the justice of the case requires.

(3.) Sec. 112(1)(b) of the Civil P. C. states that nothing in the Code shall be deemed: To interfere with any rules made by the Judicial Committee of the Privy Council, and for the time being in force, for the presentation of appeals to His Majesty in Council, or their conduct before the said Judicial Committee.