Subba Rao, C.J. -
(1.)This is a Letters Patent Appeal against the judgment of our
learned brother, Satyanarayana Raju, J.
The respondents filed O.S. No. 62 of 1950 on the file of the Court of
the Subordinate Judge, Srikakulam, for partition of the plaint schedule property.
The defendants are the other members of the family. On the pleadings as many
as twelve issues were framed. The main contention of the parties centered round
the point, whether all or any of the properties were joint family properties. The
learned Subordinate Judge, on a consideration of the entire oral and documentary
evidence in the case, came to the conclusion that the family was a joint undivided
Hindu family, that some items were admittedly ancestral properties and that other
items were purchased by the 1st defendant as his self acquisitions. On those findings
he gave a preliminary decree for partition of the properties held to be joint family
properties and dismissed the suit in regard to the properties found to be the self-
acquisitions of the 1st defendant. The plaintiffs preferred A.S. No. 1086 of 1953.
(2.)In the appeal the plaintiffs raised the plea, among others, that all the properties belong
to the joint family. The question falls to be considered on the
consideration of the oral and documentary evidence adduced in the case. A perusal
of the judgment discloses that the question is an arguable one and depends upon
the view that the High Court ultimately takes on the evidence in the case.
The suit was disposed of on 24th April, 1953. The plaintiffs preferred the
appeal on 5th October, 1953 and it was duly numbered on 2nd November, 1953.
The 1st defendant died in November, 1953. The appellants appeared on and
January, 1954. After the appeal was admitted, the respondents prosecuted the
appeal diligently. They pointed out portions for printing and even paid an amount
of Rs. 360 on 6th September, 1954, towards the printing charges. On 13th December,
1954, that is, more than a year after the appeal was admitted and more than
II months after the appellants made an appearance, they took out an application
for directing the respondents to furnish security for costs. In the petition they
alleged that there were no merits in the appeal and that the respondents were
trying to alienate the properties. In the affidavit no particulars of any attempts
made by the respondents for alienating the properties were given. The affidavit
also does not disclose that the respondents are guilty of either vexatious or
contemptuous behaviour in the execution proceedings. In the circumstances
the appellants base their case only on the allegation that the appeal was frivolous
and on a vague allegation that the respondents were trying to alienate the properties.
Satyanarayana Raju, J., held that the aforesaid circumstances were not sufficient
for directing the respondents to furnish security and therefore dismissed the application.
Order 41, rule 10 (1) governs the situation.
(3.)It reads :
"The appellate Court may in its discretion, either before the respondent is called upon to
appear and answer or afterwards on the application of the respondent, demand from the appellant
security for the costs of the appeal, or of the original suit, or of both :
Provided that the Court shall demand such security in all cases in which the appellant is residing
out of India, and is not possessed of any sufficient immoveable property within India other than the
property (if any) to which the appeal relates ".
We are not here concerned with the Proviso and therefore it may be ignored
for the purpose of the present appeal :
Rule 10 (1) confers a power on an Appellate Court in exercise of its discretion
to demand security from the defeated party. It is intended to enable a successful
party to cover his risk. The discretion must be exercised in accordance with the
rules of law, justice, and reason, but otherwise, subject to the Proviso, the matter
is essentially one of practice and procedure, regarding which uniformity is desirable.
The decided cases have laid down some workable rules to guide the exercise of
discretion by Courts under this rule. The rules so evolved, while enabling the
successful party to get an order for security, also protect the unsuccessful party
from being unduly harassed or his appeal being stifled at the inception. To achieve
that object it was held that the respondent may obtain an order for security if the
appeal is frivolous and is filed only to harass him. On the other hand, if the appeal
is an arguable one, the mere fact that the appellant is poor is not in itself a ground
for directing security unless the appellant is guilty of vexatious or contemptuous
behaviour. If he alienates his properties pending appeal or otherwise resorts to
obstructive tactics, preventing the decree-holder from executing the decree, his
conduct justifies an order of security against him. So too, the respondent, who
seeks an order in his favour under the rule, shall not be guilty of laches. He shall
not be allowed to stand by and after allowing the appellant to incur avoidable
expenditure and after a long lapse of time, take out an application for security,
To put it shortly, an order under this rule will not ordinarily be made unless the
respondent is not guilty of laches and the appeal is a frivolous one. So too, an order
will not be made on the simple ground of poverty of the appellant unless he is
also guilty of vexatious conduct.