- (1.) It appears to me that the Court cannot, on the application of the plaintiff, continue the attachment pending the decision of the appeal to Her Majesty in Council, or call upon the respondent to give security before being allowed to remove it. Section 81 of the Code of Civil Procedure authorises the Court, in cases where the defendant is about to dispose of his property, for the purpose of delaying the execution of any decree which may be passed against him, or with that object to remove the property out of the jurisdiction of the Court when the suit is pending, to call upon the defendant to furnish sufficient security to fulfill any decree which may be passed against him in the suit: and it is only upon the defendant's failing to give that security that the Court can order his property to be attached. Now the security to be given is that he will fulfill the decree which may be passed in the suit. The words "in the suit" must mean in the suit to which Act VIII of 1859 relates, that is to say a suit within the meaning of section 1 of that Act, or in other words a suit over which the Civil Courts in this country have cognizance. The Court is not authorised to call upon a defendant, who has got a decree in his favour in this country, to give security to fulfill any decree which may be passed against him by Her Majesty in Council.
(2.) When an attachment issues against a defendant's property, the Court is bound, under section 87, to remove that attachment on the defendant's furnishing security as "above required" (that is to fulfill the decree of the Court), together with security for the costs of the attachment. After the plaintiff's suit has been dismissed finally by the Court of the highest jurisdiction in this country, he cannot require the defendant to give security to fulfill the decree which has been given in his favor, or any decree which may be given against him on appeal to Her Majesty in Council.
(3.) It would be unjust to call on the defendant to give security when the decree has been passed in his favour, and the plaintiff's suit has been dismissed.;