Decided on December 06,1955


Cited Judgements :-



- (1.)The Order of Reference was delivered by the Hon'ble The Chief Justice. This is an application for permitting the petitioners to furnish immoveable property security for the costs of the respondents in the place of cash security and to extend the time for complying with Order 45 Rule 7 C. P. C. The petitioners, who lost the appeal in the Madras High Court, applied for leave to appeal to the Supreme Court. This Court granted leave by order dated 17-3-1955. The petitioners did not furnish security in cash as provided for by Order 45 Rule 7 C. P. C. Having made default, they have filed the present application for permitting them to give security in immoveable property in the place of security in cash. Learned Counsel for the respondents contends that this Court has no power to permit the petitioners to do so as under the proviso to Rule 7 of Order 45, the petitioners should have asked for that relief at the time when the certificate was granted. The said proviso reads :
" Provided that the court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished"

(2.)Learned Counsel for the petitioners, on the other hand, argues that that Ru!e is subject to Order 12 Rule 3 of the Supreme Court Rules, which says:
" Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that court may, on its own motion or on application in that behalf made by the respondent, cancel the certificate and may give such directions as to the costs of the appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case reqires."

(3.)This rule corresponds to Rule 9 of the Privy Council Rules. A Division Bench of the Madras High Court, consisting of Sir Lionel Leach C. J. and Krishnaswami AiyangarJ. in Sreeramamurthy v. Rama Rao held that, by reason of the proviso to Order 45 Rule 7 C. P. C., the Court has no power after a certificate is issued, to permit the petitioner to give immoveable property security. The learned Judges followed an earlier decision of the same High Court in Arunachala Naidu v. Balakrishna & Co. The two judgments did not consider the impact of Rule 9 of the Privy Counc Rules on the proviso to Rule 7 of Order 45. A Division Bench of the Bombay High Court, on the other hand, in Revanshidaya v. Gudnaya , relying upo: Rule 9 of the Privy Council Rules, came to the conclusion that the High Court has the power in a suitable case to allow the petitioner to furnish security of immoveable property even after the certificate is issued. As the question raised relates to procedure and as the Madras judgments do not consider the scope of the Privy Council Rule corresponding to the aforesaid Supreme Court Rule, we think this question should be authoritatively decided by a Full Bench. We, therefore, refer the following question to the Full Bench :
" Whether the High Court has power to permit an applicant, who obtained leave to appeal to the Supreme Court, to furnish security in immoveable property when he did not ask for that relief at the time the certificate was issued."
Opinion The opinion of the Full Bench was delivered by the Hon'ble Mr justice Satyanarayana Raju:

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