Shew Bux Mohata & ANR V. Sm.
Tulsimanjari Dasi & ANR  INSC 126 (29 March 1961)
CITATION: 1961 AIR 1453 1962 SCR (1) 643
Practice-Security for costs-Appeal to Supreme
Court- Certificate granted by High Court -Power of High Court to extend
time-Code of Civil Procedure, 1908 (Act 5 of 1908), O. 45, rr. 7, 10,
11-Supreme Court Rules, 1950, O. XII, r. 3.
On an application made by the appellant, the
Calcutta High Court granted a certificate on May 18, 1956, enabling him to appeal to the Supreme Court against the judgment and decree of the High Court.
Under 0. 45, r. 7(1)(a), of the Code of Civil Procedure, 1908, the appellant
had to deposit the security amount for costs of the respondent 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 was the later
Being unable to deposit 644 the amount on the
due date, the appellant filed an application on July 4, 1956, before the High
Court praying that the amount tendered by him be accepted after condoning the
delay, but the High Court rejected it on the ground that according to the
uniform current of decisions of that Court it had no jurisdiction to extend the
time for depositing the amount.
Held, that reading 0. 45" r. 7, of the
Code of Civil Procedure, 1908, along with the other relevant provisions Of the
said Order, a High Court has jurisdiction to extend time for furnishing
security under the rule, and that the decisions of the Calcutta High Court to
the contrary are erroneous.
Order XII, r. 3, of the Supreme Court Rules,
1950, expressly recognises and gives jurisdiction to the High Courts to extend
the time for furnishing the security in a proper case.
Raja Kumar Govind Narayan Singh and others v.
Shamlal Singh and others, (1934) 39 C.W.N. 65 1 and Akimuddin Chowdhury v. Fateh
Chand Mahesri & others, (1939) 44 C. W. N. 920, disap- proved.
Roy Jyotindranath Chowdhury & Ors. v. Rai
Prasanna Kumar Banerjee Bahadur, (1906) 11 C.W.N. I 104, Harendra Lal Choudhry
v. Sm. Hari Dasi Debei, (1909) 14 C.W.N. 420, Nilkanth Balwant Natu & Ors.
v. Shri Satchidanand Vidya Narsinha Bharati & Ors., (1927) I.L.R. 51 Bom.
430, Bishnath Singh & Ors. v. Balwant Rao Naik Kalia & Ors., I.L.R.
 All 549, Ismail Piperdi v. Momin BiBi & Ors,  Rangoon L.R.
668, Lachmeshway Prasad Shukul v. Girdhari Lal Choudhuri, (1940) I.L.R. 19 Pat.
123, Ghulam Rasul v. Ghulam Qutabud-din, (1942) I.L.R.23 Lah.447, Gulam Hussain
v. Mansurbeg & Ors., I.L.R.  Nag. 406 and Thota Pitchaiah
Andhra 55, approved.
& CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 34 of 1958.
Appeal by special leave from the order dated
July 6, 1956, of the Calcutta High Court in appeal to the S. C. No. 32 of 1955.
N. C. Chatterjee and D. N. Mukherjee, for the
Syamdas Bhattacharya and S. N. Mukherjee, for
1961. March 29. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J.-The short question of law which arises in this
appeal is whether the Calcutta High Court had jurisdiction to extend the time
for 645 furnishing security for costs of the respondents under 0. 45, r. 7, of
the Code of Civil Procedure. The Calcutta High Court has held that it had no
jurisdiction to extend time as prayed for by the appellants, and so the
certificate already granted by it to the appellants to appeal to this Court
against its own decree has been cancelled. The order canceling the said
certificate has given rise to this appeal by special leave; and so the only
question which we are called upon to consider is one of construing 0. 45, r. 7,
of the Code as well as 0. XII, r. 3, of the Supreme Court Rules.
The relevant facts leading to the present
controversy are not in dispute. The appellants had instituted a suit (No. 73 of
1944) in the First Additional Court of the Subordinate Judge of 24 Parganas
against the six respondents. In this suit they claimed a declaration of title
to the immovable property in question and prayed for recovery of possession of
the said property together with mesne profits. The learned trial judge decreed
the suit on March 20, 1948. Two appeals were then filed against the said decree
by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948).
Of these two appeals Appeal No. 135 of 1948
was dismissed but Appeal No. III of 1948 was partly allowed and the decree
passed in favour of the appellants granting possession and mesne profits to the
appellants against respondent 3 was set aside. Thereupon the appellants applied
for and obtained a certificate from the Calcutta High Court to enable them to
appeal to this Court. The decree under appeal was one of reversal and the
valuation of the subject-matter of the dispute both in the trial court and in
the intended appeal before this Court exceeded the statutory limit prescribed
in that behalf and so the appellants 'were in fact entitled to a certificate
under Art. 133 (1)(a) of the Constitution.
Accordingly a certificate was issued on May
18, 1956. The last date for the deposit of the security amount of Rs.
2,500 and the printing cost of Rs. 1,184 was
June 29, 1956.
According to the appellants owing to
circumstances over which they had no control they could not deposit 646 he said
two amounts on the due date. Consequently in July 4, 1956, they filed an
application before the High Court praying that the requisite amounts tendered
by them be accepted after condoning the delay made by them in the payment of
the said amounts. This application was rejected on the ground that according to
the uniform current of decisions in the said Court it had no jurisdiction to
extend the time for depositing the amount of security. It is against this order
that the appellants have come to this Court by special leave.
O. 45, r. 7, of the Code occurs in the
Chapter dealing with appeals to the Supreme Court, and it deals with the
security and deposit which are required to be furnished and made on grant of
certificate to a party intending to prefer an appeal to this Court. 0. 45, r.
7(l)(a), provides that where the certificate is granted the applicant shall,
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, furnish security in cash or in Government Securities for the
costs of the respondent. The word "within ninety days or such further
period not exceeding sixty days" which occur in the first part of the rule
have been added by Act 26 of 1920 in substitution for the words "six
months" which were originally enacted in the said rule. It is common
ground, and indeed it is not disputed, that prior to the amendment made in 1920
High Courts had jurisdiction to extend time for furnishing security for cogent
and satisfactory reasons. In Burjore and Bhawani Pershad v. Mussumat Bhagana
(1) the Privy Council had held, agreeing with the view taken by the Full Bench
of the Calcutta High Court that the words in s. 602 of the Code of 1877 (Act X
of 1877), in regard to extending time for giving security in appeal were
directive only and there was jurisdiction in the High Court to grant extension
of time for cogent reason. In other words, the time of six months prescribed by
the (1)  L.R. 11 I.A. 7.
647 statute could not be departed from
without cogent reason.
As a result of this decision under the
provisions of 0. 45, r. 7, as they stood until the amending' Act 26 of 1920 was
passed, all the High Courts consistently exercised their jurisdiction in the
matter of furnishing securities and extended time where they were satisfied
that there was a proper and valid reason to do so. The question which arises
for our decision is whether by the amendment made in 1920 this position has
There can be no doubt that the object of the
amendment was to expedite the final decision of the appeals which were taken
before the Privy Council, and so the restrictive words have now been introduced
whereby the period prescribed by the first part of the rule can. not be
extended beyond 150 days; but, does the use of these restrictive words indicate
that there is no jurisdiction in the High Courts to extend the period for a
sufficient cause ? Having regard to the fact that even before the amendment the
period of six months had been indicated it seems somewhat difficult to hold
that by restricting the period to 150 days by the use of the restrictive words
the Legislature had intended to take away the preexisting jurisdiction of the
High Courts to extend the period for a reasonable cause. The jurisdiction to
enlarge the period for a good cause shown could not have been intended to be
taken away by implication merely by the use of the restrictive clause
introduced in the amendment.
Besides, it is significant that even after
the amendment there is no specific provision which provides for the effect of
failure to comply with 0. 45, r. 7. Rule 8 deals with cases where security has
been furnished and deposit made, and it provides that on the security being
furnished and deposit made the Court shall declare the appeal admitted, give
notice thereof to the respondent, transmit to the Supreme Court the record, as
therein provided, and give to either party one or more authenticated copies as
There is no rule which prescribes the
consequence of non- compliance with the order made under r. 7. Failure to make
this provision is not without significance because r. 11 648 expressly provides
for the effect of failure to comply with the order made under r. 10. In other
words, where the Court makes an order calling upon the appellant to furnish
within a time to be fixed by it other and sufficient security, or to make
within like time the required payment, and the appellant fails to comply with
the said order, r. 11 expressly provides that on such failure of the appellant
the proceeding shall be stayed and the appeal shall not proceed without an
order in that behalf of the Supreme Court and in the meantime execution of the
decree appealed from shall not be stayed. It would thus be seen that where the
Legislature intended that failure to comply with a specific order should lead
to the consequence of a specific result it has made an appropriate provision in
that behalf, and so failure to make any such provision in regard to the
consequence of non- compliance with the order made under r. 7 may suggest that
the jurisdiction of the Court to extend time was not intended to be taken away.
Since it is open to the Court to extend time, the Legislature may have thought
that it should be left to the discretion of the Court to decide whether the
failure to comply with its order under r. 7 should be condoned and the period
extended for furnishing security, or whether the default should not be condoned
and the certificate should therefore be cancelled. In our opinion, therefore,
reading 0. 45, r. 7, as amended along with the other relevant provisions of the
said Order it would be difficult to hold that the High Court has no
jurisdiction to extend time for furnishing security under the said rule.
High Courts had jurisdiction to extend time
prior to the amendment of 1920 and the amendment of 1920 has made no difference
in that behalf.
There is another statutory provision which
leads to the same conclusion, and that is 0. XII, r. 3, of the Supreme Court
Rules framed by this Court in exercise of its rule-making powers under Art. 145
of the Constitution. Rule 3 reads thus:
"Where an appellant, having obtained a
certificate from the High Court, fails to furnish the security or make the
deposit required, that Court 649 may, on its own motion or on application in
that behalf made by the respondent, cancel the certificate, and may give such
directions as to the costs of the' appeal and the security entered into by the
appellant as it shall think fit or make such further or other order as the
justice of the case requires." This rule corresponds exactly to r. 9 of
the Privy Council Rules. On a fair construction of this rule there appears to
be no doubt that if a party having obtained a certificate from the High Court
fails to furnish security or to make the required deposit it is open to the
High Court to adopt either of two courses; it may cancel the certificate and
may give directions as to the costs of the appeal and the security entered into
by the appellant or it may make such further or other order as the justice of
the case may require; and that clearly suggests that the High Court has
jurisdiction to consider the question as to whether the justice of the case
requires that the certificate already granted should not be cancelled and
further time should be given to the party to furnish the security or to make
the required deposit. The last clause of r. 3 refers to such further or other
order as the justice of the case requires, and that must necessarily mean an
order other than, and different from, the order canceling the certificate. It
is true that the intention behind this rule might have been differently and
better expressed but the object of the rule is plain and unambiguous and its
construction presents no difficulty whatever. Failure to furnish the security
or to make the deposit in time does not inevitably and in every case lead to
the cancellation of the certificate. Despite the said failure some further or
other order according to the justice of the case may still be passed by the
Court in its discretion, and that, in our opinion, must mean an order condoning
the default and granting further time to furnish the security or to make the
required deposit. If this be the true position about the effect of 0. XII, r.
3, of the Supreme Court Rules it would follow that the High Courts would have
jurisdiction to extend time for furnishing security even 82 650 if r. 7 of 0.
45 after its amendment in 1920 had taken away the said jurisdiction. Section
112 of the Code expressly provides that nothing contained in the Code shall be
deemed, inter alia, to interfere with any rules made by the Supreme Court, and
for the time being in force, for the presentation of appeals to that Court or
their conduct before that Court. Therefore, if 0. xII, r. 3, expressly
recognises and gives jurisdiction to the High Courts to extend the time for
furnishing the security or to make the deposit in a, proper case that provision
would not be interfered with by r. 7 of 0. 45. That is how, apart from the
provisions of r. 7 of 0. 45, we reach the conclusion that the Calcutta High
Court had jurisdiction to extend time for furnishing the security in the
present case. However, as we have already held -the amendment of r. 7 of O. 45
does not really take away the preexisting jurisdiction of the High Courts to
extend time and so there is complete harmony between the said rule and 0. XII,
r. 3, of the Supreme Court Rules.
On this question there appears to be
consensus of judicial opinion in the decisions of all the High Courts in India
except the Calcutta High Court which for some years past has struck a note of
dissent. It is unnecessary to deal with a catena of decisions on which Mr.
Chatterjee relied in support of his contentions. It would be enough merely to
mention them. It appears that in some High Courts the present question was
referred to a Full Bench and the decisions of the Full Bench have negatived the
view which appears to have been taken by the Division Benches in the said High
Courts on the earlier occasions that the High Courts had no jurisdiction to
extend time (Vide: Nilkanth Balwant Natu & Ors. V. Shri Satchidanand Vidya
Narsinha Bharati & Ors. (1) (Full Bench); Bishnath Singh & Ors. v. Balwant
Rao Naik Kalia & Ors. (Full Bench); Gulam Hussain v. Mansurbeg & Ors.
(Full Bench); Lachmeshwar Prasad Shukul v. Girdhari Lal Chaudhuri (4) (Full
Bench); Ghulam Rasul V. Ghulam Qutabud-din (5) (Full Bench); Thota Pitchaiah
(1) (1927) I.L.R. 51 Bom. 430.
(3) I.L.R. (1952) Nag. 406.
(2) I.L.R.  All..549.
(4) (1040) I.L.R. 19 Pat. 123.
(5) (1942) I.L.R. 23 Lah. 447.
651 & Or8. 'V. M. Vedanta
Narasimhacharyulu & Ors. (1) (Full Bench); and Ismail Piperdi v. Momin Bi
Bi & Ors. (2) (Full Bench).
Even in Calcutta it was held by the Calcutta
High Court by a Full Bench in Roy Jotindranath Chowdhury & Ors. v. Rai
Prasanna Kumar Banerjee Bahadur & Ors. (3) that the High Court had power to
extend time as provided by s. 602 of the Code for depositing the estimated cost
of translating, transcribing, indexing and transmitting to the Privy Council
the records of the case under appeal, but it was added that the Court should
not extend time without some cogent reason.
In support of this conclusion the High Court
relied upon the decision of the Privy Council in the case of Burjore and
Bhawani Pershad (4). The same view was expressed by the said High Court in
Harendra Lal Choudhry v. Sm. Hari Dasi Debei (5) where it was held that High
Court had power to extend the time for depositing costs in Court but it ought
not to do so without some cogent reasons. In reaching this conclusion the Court
followed its earlier decision in the case of Roy Jyotindranath Chowdhury (3).
It, however, appears that in Raj Kumar Govind Narayan Singh & Ors. V.
Shamlal Singh & Ors.(6) Chief Justice
Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction
to extend time for furnishing the security under 0. 45, r.
7, as amended in 1920. With respect, the
question does not appear to have been fully argued before the Court, for the
judgment does not discuss the question of construing the relevant provisions of
0. 45, r. 7 or of r. 9, of the Privy Council Rules, and indeed the earlier
decisions of the Court on that point do not appear to have been cited either.
Even so, this decision was subsequently followed and that led to a consistent
practice in the said High Court on which the learned judges have relied in
rejecting the appellant's application for extension of time in the present
case. In this connection it may be relevant. to note that when this question
was raised before the (1) I.L.R.  Andhra 55.
(3) (1906) 11 C. W.N. 1104.
(5) (1909) 14 C.W.N. 420 (2)  Rangoon
(4) (1883) L.R. 111 I. A. 7.
(6) (1934) 39 C.W.N. 6511.
652 Calcutta High Court again in Akimuddin
Chowdhury v. Fateh Chand Mahesri & Ors. (1) Chief Justice Derbyshire was
referred to the Full Bench decision of the Bombay High Court in Nilkanth
Balwant Natu (2) in support of the argument that there was a jurisdiction to
extend time for furnishing security, but he observed that though he had great
respect for the said Full Bench decision there was a contrary decision of the
Calcutta High Court in the case of Raj Kumar Govind Narayan Singh(') and so he
was bound to follow the said decision and conform to the practice prevailing in
the Calcutta High Court. In our opinion, the practice prevailing in the
Calcutta High Court since the decision of Chief Justice Rankin in the case of
Raj Kumar Govind Narayan Singh (3) is not justified either by the provisions of
0. 45, r. 7, of the Code or 0. XII, r. 3, of the Supreme Court Rules. We must
accordingly hold that the High Court was in error in holding that it had no
jurisdiction to entertain the application made by the appellants to extend time
for furnishing the security. On the view which it took the High Court naturally
did not examine the merits of the appellants' case that there were sufficient
and cogent reasons for condoning the delay.
We would therefore allow the appeal, set
aside the order passed by the High Court and remit the matter to that Court for
disposal of the appellants' application in accordance with law. In the
circumstances of this case there would be no order as to costs.
(1) 44 C.W.N. 920.
(2)  I.L.R. 51 Bom. 430.
(3)  39 C.W.N. 651.