Decided on November 26,1953



Rajamannar, C.J. - (1.) This is an appeal against the judgment of Panchapakesa Aiyar J. dismissing an application filed by the appellant herein for extension of the time for furnishing security for costs which he had been directed to furnish by an order of this Court passed by Ramaswami J. on 11-3-1952 in C. M. P. No. 1676 of 1952. That order was passed in an Appeal, A. S. No. 498 of 1951, which the appellant herein had filed in forma pauperis against a decree of the District Court of East Tanjore. Ramaswami J. directed the appellant to furnish security for costs of the Court below within one week of the reopening of that Court after the summer recess. The learned Judge also proceeded to say that failing such furnishing of security the appeal would stand dismissed. The appellant did not furnish the security within time, but for some reason or other, the appeal itself was never posted formally for being dismissed under Order XLI, Rule 10 (2), Civil P. C. On 18-9-1953, the appellant filed the application above referred to for excusing the delay in applying for extension of time for furnishing security. This application was supported by a verified petition in which it was stated that the advocate missed noticing the petition which had been posted for hearing on 11-3-1952 and that he was totally unaware of the order passed therein and therefore he never communicated it to his client, the appellant before us. He frankly acknowledged that he was responsible for the delay. He further stated that he came to know of the order only that day, that is, 18-9-1953, on which day he filed the verified petition, from Mr. T. s. Kuppuswami Aiyar, the learned advocate for the contesting respondents. The application was dismissed by Panchapakesa Aiyar J. An objection was taken on behalf of the respondents before him that the Court had no jurisdiction to extend the time. But the learned Judge was of the opinion that in extreme cases the Court had jurisdiction. He, however, considered that no ground was made out for exercising such jurisdiction. He was apparently inclined to believe the statement of the learned counsel that by oversight he had missed noticing the petition and so had not communicated the order to his client. But, according to him, even if that be true, "that the client should have remained passive for 15 months, without enquiring from his advocate" was enough to reject the application. He went on to say "such paupers, waiting for 15 months to elapse after the period fixed for furnishing the security has expired, deserve no consideration." With respect to the learned Judge, we fail to see how if really the client was never apprised of the order, he could be held guilty of inaction for 15 months from the period fixed under an order of which he had no knowledge.
(2.) On behalf of the respondents, Mr. Kuppuswami Aiyar, once more raised the objection that this Court had no jurisdiction to extend the time for furnishing security after the time originally fixed had expired. He put his argument on a twofold basis. His first basis was that part of the order of Ramaswami J., by which the learned Judge directed that the appeal would stand dismissed on the appellant failing to furnish security in time. In our opinion, this basis is not open to Mr. Kuppuswami Aiyar. The learned Judge, Ramaswami J. had no jurisdiction to direct a regular appeal to the valuation of over Rs. 20,000, to stand dismissed. The proper course should have been for the appeal to have been posted before a Division Bench under Order 41, Rule 10 (2), Civil P. C. This, as already mentioned, was never done.
(3.) The next basis of Mr. Kuppuswami Aiyar's argument was that even without any order of rejection, on the expiry of the period fixed for furnishing security, the appeal automatically stood rejected, and thereafter there was no power in the Court to extend the time for furnishing security. His argument was founded entirely on the decision of the Privy Council in -- 'Mt. Sabitri Thakurain v. Savi', AIR 1921 PC 80 (A). That decision, however, has no bearing on the Question which now falls for decision. In that case, there was an order under Order 41, Rule 10 (1) of the Code on 18-12-1914 directing the appellant to furnish security within two months from that date. On 17-2-1915, an application was made for extension of time, but that application was dismissed on 18-2-1915. On 22-2-1915, the respondent filed an application praying that the appeal may be dismissed with costs. Thereupon, the appellant filed a petition on 23-3-1915 praying that he might be allowed to proceed with the appeal in 'forma pauperis'. On the same day, i.e., 23-3-1915, by an order, the appeal itself was dismissed for failure to comply with the order for, security. The order refusing the appellant's application to continue her appeal in 'forma pauperis' was carried up in appeal to His Majesty in Council. The appeal was dismissed. In doing so, their Lordships observed that the High Court had rightly conceived itself precluded from entertaining the appellant's application to be allowed to continue her appeal in 'forma pauperis', since to grant her application at that stage would in effect have been to keep alive an appeal which they were, by reason of her default in the matter of security, bound to reject. We do not see how this decision helps Mr. Kuppuswami Aiyar. The application made by the appellant for extension of time had been long ago rejected and there was no similar application pending. The appeal had only to be formally rejected, and as there was no application for further extension, the Court was bound to reject the appeal. What their Lordships pointed out was that at that stage it was not open to the High Court to allow the appellant to continue her appeal in 'forma pauperis'.;

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