PITAMHARI DIBYA Vs. CHANDRASEKHAR PRAHARAJ
HIGH COURT OF ORISSA
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Panigrahi, C.J. -
(1.) In this appeal the petitioner has filed an application under Rule 7 of Order 45, Civil P. C. and prays for permission to give property security in lieu of cash or Government securities. In order fully to appreciate the nature of this application a statement of the facts is necessary. The judgment of this Court in -' Chandrasekhar Praharaj v. Pitambari Dibya', A. I. R. 1953 Orissa 315 (A); against which leave to appeal was sought was delivered on 28-1-53, decreeing the suit filed by the opposite parties. On 10-3-53, the petitioner applied for a certificate that the value and nature of the suit fulfilled the requirements of Section 110, Civil P. C. On 21-4-53 a Bench of this Court ordered the issue of a certificate as the requirements of Section 110 had been satisfied and two days later the certificate was signed by the learned Judges who ordered the issue of the same. The petitioner thereafter moved the Court for stay of execution of the decree and we directed that half the costs incurred by the opposite parties in the lower court as well as In the appeal should be deposited as a condition precedent to the execution of the decree being stayed. On 20-7-53, the petitioner again applied for permission to give property security for the other half of the costs of the opposite party, and was granted one month's time to furnish property security for the unpaid half of the costs. On 6-8-53 the petitioner again applied for extension of time, fixed for depositing the costs of the opposite parties incurred in the lower court and we granted time accordingly till 10-8-53. On that date the petitioner filed the present application under Order 45 Rule 7, Civil P. C., praying that she be permitted to furnish property security for the costs of the respondent in lieu of cash or government securities. This was, obviously a prayer to substitute property security for the costs of the respondent in the Supreme Court appeal, as contemplated in Order 45, Rule 7; and not the costs of the plaintiff already incurred in this court and in the trial court. The petitioner also tendered a draft security bond executed by one Jagabandhu Misra for Rs. 4000/-to meet the costs of the respondent that may toe awarded by the Supreme Court. There is no separate prayer for extension of time for depositing, or for acceptance of security for depositing to printing costs. Paragraph 11 of the petition states that
"the petitioner is an old lady and has already deposited more than Rs. 3000/- in pursuance of this Honourable Court's orders and that she has to deposit another Rs. 1750/- as estimated printing costs. She is not in a position to raise the necessary funds for furnishing security." It is difficult to guess what the petitioner meant by alleging that she was not in a position to raise money for furnishing security. It would appear however, from the order passed by the Court on 18-5-53 that the petitioner made an oral application for extending the time for depositing printing costs. The Court's order No. 15 dated 18-8-53 says: The appellant prays for one month's time for depositing the printing costs." The petition for substituting property security in lieu of cash or Government security came up on 24-8-53 and was argued on 26-8-53.
(2.) The questions for consideration are:
(i) Whether the Court has the option to extend the time beyond the period fixed by Order 45 Rule 7 of Civil P. C.: and
(ii) Whether the application filed on 10-8-53 for substitution of property security in place of cash security is competent.
(3.) Order 45, Rule 7 lays down that
"Where the certificate is granted, the applicant shall, within 90 days or such further period, not exceeding 60 days, as the Court may upon cause shown allow from the date of the decree complained of, or within 6 weeks from the date off grant of certificate, whichever is the later date (a) furnish security in cash or in government securities for the costs of the respondent, and (b) deposit the amount required to defray the expenses of translating, transcribing, indexing and printing and transmitting to the Supreme Court a correct copy of the whole record of the suit...... provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the grouse of special hardship that some other form of security may be furnished. Provided further that no adjournment shall be granted to the opposite party to contest the nature of such security." The rule clearly lays down that the applicant shall furnish security in cash or in Government securities for the costs of the respondent within 90 days or within such period thereafter not exceeding 60 days from the date of the decree complained of, or within 6 weeks from the date of grant of certificate whichever is the later date. The certificate was granted on 21-4-53 and the last date for furnishing the security expired on 6-6-53. It is apparent that 90 days expired on 28-4-53 and the period of 150 days after the decree also expired on 28-5-53. The petitioner is undoubtedly entitled to the later date of the two, and should have furnished security on or before 29-6-53.;
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