Decided on October 11,1944

Pazhaveettil Chekkara Kunhi Kannan Appellant
Elamankandi Kinattumkara Chappan Respondents


Leach, C.J. - (1.) THIS is an appeal from an order of Happell J. directing that the appellant should furnish security for the costs of the respondent in Appeal No. 119 of 1943 of this Court. The appellant's complaint is that the application for security for costs was made at a very late stage and on the accepted principle that promptness is the essence of such an application, the learned Judge should have refused it. We consider that this argument is well founded. The appeal was filed on 22nd February 1943, and was admitted on 18th March 1943. The respondent was served in due course. The application for an order for security for costs was filed on 25th July 1944, by which time the record had been printed and the case had appeared in the rough list, which meant that all costs in connexion with the printing of the record had been incurred. The learned Judge, in passing the order for security for costs had regard to what had happened in an application made by the respondent for the execution of the costs awarded to him in the trial Court. This application was filed in the month of October 1943. The judgment -debtor contended that he was possessed of no means. This statement was disbelieved and the Subordinate Judge who heard the application for execution held that he had sufficient money to pay off the amount due to the decree -holder. Accordingly he directed a warrant to be issued for the arrest of the judgment -debtor. It was not executed because he could not be found and on 10th January 1944, the Subordinate Judge dismissed the application for execution. If the decree -holder had then applied to this Court for an order for security for costs he would undoubtedly have got it and rightly so, but he did not apply until six months later. The Court closed for the long vacation at the end of April 1944, and the decree -holder had ample time in which to make the application before the vacation commenced. He took no steps until, the case was ready for hearing. In these circumstances we consider that he is precluded from getting an order for security far costs. He has only himself to blame for the present situation. The appeal must be allowed with costs here and before Happell J.;

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