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1926 DIGILAW 403 (CAL)

Raj Kumar Govind Narain Singh v. Shamlal Singh

1926-12-06

body1926
JUDGMENT Rankin, C.J. - This is an application that the certificate for the admission of the appeal to England may be cancelled by reason that the maximum time which it is in the power of the Court to give to the Appellant to furnish security for costs of the appeal had elapsed before the security was deposited. The decree under appeal was dated the 15th May, 1925. The certificate of fitness to appeal to His Majesty in Council was granted on the 2nd August, 1926. By the terms of r. 7, Or. 45, as they now stand, the security must be deposited 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. Now 90 days plus 60 days--roughly speaking five months from May, 1925--have long ago elapsed. The Rule goes on to say, "or within six weeks from the date of the grant of the certificate, whichever is the later date." Now, the certificate was on the 2nd August, 1926. The Court closed for the vacation on the 26th of that month and the Court resumed after vacation on the 8th November, 1926. The applicants, therefore, would have been in time if on the reopening day, i.e., on the 8th November, they had deposited the security. Instead of that, they filed an application on the 10th which was dealt with by the Registrar on the 12th November. The Registrar purported to give them a week's time and on the 17th November, I understand, the deposit was made. 2. I do not think it necessary to give directions now or to formulate a final opinion as to whether extension of time under r. 7 ought to be dealt with by the Registrar at all, though I am a little inclined to the view that it might be better if that jurisdiction were exercised only by a Division Bench. It is however quite clear that what the Court is prohibited from doing the Registrar cannot do and the object of r. 7 was to put a limit definitely, finally and completely upon the amount of extension that the High Court could grant in the matter of these appeals to the Privy Council. 3. It is however quite clear that what the Court is prohibited from doing the Registrar cannot do and the object of r. 7 was to put a limit definitely, finally and completely upon the amount of extension that the High Court could grant in the matter of these appeals to the Privy Council. 3. The present case, in my opinion, seems somewhat hard, but at the same-time it must be admitted to be a reasonable view that if a man from the 15th May, 1925, had it in his contemplation to prosecute an appeal to the Privy Council, it was possible for him to take such steps in time that, at all events, if the granting of the certificate was very late, the security could be furnished within six weeks thereof. This is a question of jurisdiction. It does not seem to me possible to maintain that the Court, in its discretion under r. 9 of the Order, i.e., Order of His Majesty in Council.--Reporter made on the 9th day of February, 1920, could refuse the application made by the Respondent. 4. In my judgment the only order which it is open to us to make is that the certificate for the admission of the appeal dated the 2nd August, 1926, should be cancelled. 5. The Appellants' security will be treated as though it had not been deposited for the purpose; that is to say, the Appellants can have it back. The Respondents are entitled to their costs of this application from the Appellants which we fix at 5 gold mohurs. Ghose, J. I agree.