Decided on November 27,1953



Mack, J. - (1.) This is a petition by plaintiffs in O. S. No. 243 of 1949, whose suit for partition was dismissed by the learned District Munsif, to revise an order passed under Order 41, Rule 10 by the learned Subordinate Judge in appeal directing them to deposit Rs. 153-12-0, lower court costs, and to furnish immovable property security for Rs. 150 as probable costs in the appeal. This order was passed by the lower appellate Court on 13-3-1951. Time was given till 31-3-1951 to comply with this order. As there was no compliance, the appeal was rejected under Order 41, Rule 10(2), Civil P. C., on 31-3-1951.
(2.) The petitioners describe themselves as the minor son and junior wife respectively of one Nagappa Goundar who is said to have died in 1942. Defendants 1 to 3 in the suit are the sons of Nagappa Gounder by his first wife. The fourth defendant in the suit was Nagappa Gounder's brother Rangaswami Gounder. The suit for partition was resisted by the defendants on the ground that the second plaintiff, Bom-makkal, was only a concubine of their father Nagappa Gounder who left their village in 1921 and lived with Bommakkal in another village earning his livelihood as a cart driver. They relied on a release deed Ex. B.1 executed by Nagappa Gounder dated 11-10-1920 in favour of his brother the fourth defendant, by which he purported to release his rights in a half share in about eleven acres of land and a house for a sum of Bs. 200. There is a recital in Ex. B.1 that this was done at the instance of panchayatdars after his excommunication from the caste presumably for deserting his family and living with another woman who belonged to a different caste. The District Munsif dismissed the suit holding 'inter alia' that Bomniakkal was the concubine of Nagappa Gounder and that the minor plaintiff was therefore his illegitimate son and that the release deed of 1920 was a binding document. The learned Subordinate Judge in ordering security under Order 41, Rule 10 appeared to pay principal importance to the release deed Ex. E. 1 observing that unless and until the plaintiffs proved that it was sham as alleged, they cannot get a decree at the hands of the court, superseding the lower court's decree.
(3.) It is pointed out by Mr. Viraraghavan that under Ex. B. 1 Nagappa Gounder released his entire half share and from this point of view Nagappa Gounder's sons by his first wife, i.e., defendants 1 to 3, who are the main contestants in this litigation appear to be also affected by Ex. B. 1. I do not desire to make any comment on the merits except to say that on a careful consideration of the learned Subordinate Judge's order I do not think he exercised a proper discretion in requiring costs to be deposited ana security furnished under Order 41, Rule 10 (1), C. P. C. Such an order is ordinarily entirely in the discretion of the appellate Court and this Court sitting in revision would be most reluctant to interfere with the exercise of such discretion. Order 41, B. 10 is a section which is in actual practice, both in this court and throughout the muffasal, honoured more in the breach than in the observance. Under Order 41, Rule 10(1) an appellate court even without issuing notice to the respondent and without any application by the respondent may demand from the appellant security for the costs of the appeal or of the original suit. I have always taken the view that Order 41, Rule 10, should be applied by appellate courts 'suo motu' in suitable cases; but in actual practice this has been found to be impracticable, with the result that appeals are admitted and notice ordered in the ordinary course without the appellate court ever paying any attention to the exercise of its 'suo motu' discretion contemplated by Order 41, Rule 10 at the time of the admission of the appeal. This being so, it is very unfortunate that in the only case which has so far come to my notice in revision under Order 41, Rule 10, where on being moved by the respondent an appellate court has exercised its discretion and ordered security, I feel called upon to interfere.;

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