Decided on October 03,1955


Referred Judgements :-



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.

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