Research › Browse › Judgment

Madras High Court · body

1951 DIGILAW 109 (MAD)

Chinnaswami alias Samba Goundan v. A. L. Vr. ST. Veerappa Chettiar

1951-03-20

PANCHAPAKESA AYYAR, SUBBA RAO

body1951
Order.- This is an application by the respondent in S.A.No.2195 of 1946 to cancel the certificate granted to the appellant on 5th April, 1950 under Article 132 of the Constitution of India. On a representation made by the appellant in S.A.No.2195 of 1946, we passed the following order: “In our view the judgment just delivered involves a substantial question of law within the meaning of Article 132 of the Constitution of India. Leave granted”. The respondent did not furnish security for the costs before the Supreme Court and did not deposit the necessary amount for defraying the expenses of printing etc. of the records. He took out an application in the Supreme Court of India for an order dispensing with the furnishing of the security and the printing deposit and the same was dismissed by that Court. Mr Kesava Aiyangar appearing for the appellant, contended that there is no obligation on his client to furnish security or to make the requisite deposit, as Order 45 of the Civil Procedure Code was not amended suitably by the High Court. To put in other words, his argument is that, as the rules now stand, he is entitled to prefer an appeal to the Supreme Court without furnishing the security and also without depositing the requisite charges towards printing, etc. On the same day on which the Constitution of India came into force, the President of the Republic of India made the Adaptation of Laws Order, 1950. Section 3 of the said order reads as follows: “As from the appointed day, the existing central laws mentioned in the schedules to this order shall, until repealed or amended by a competent legislature or competent authority, have effect subject to the adaptation and modification directed by those schedules, or, if it is so directed, shall stand repealed”. The following amendment was made to sections 109 and no of the Civil Procedure Code: Section 109. For ‘subject to such rules’ substitute ‘subject to the provisions in Chapter IV of Part V of the Constitution and such rules’, for ‘His Majesty in Council’ substitute ‘the Supreme Court’ and for ‘decree or final order’ substitute ‘judgment, decree or final order’. Section 110. For ‘ten thousand’ substitute ‘twenty thousand’ for His Majesty in Council’ substitute ‘the Supreme Court’ and for ‘decree or final order’ substitute ‘judgment, decree or final order’. Section 110. For ‘ten thousand’ substitute ‘twenty thousand’ for His Majesty in Council’ substitute ‘the Supreme Court’ and for ‘decree or final order’ substitute ‘judgment, decree or final order’. Order 45 of the Civil Procedure Code was also suitably amended by substituting the words “The Supreme Court” for the words “His Majesty in Council”. Article 145(1)(b) of the Constitution of India empowers the Supreme Court to make rules as to the Procedure for hearing of the appeals and other matters pertaining to the appeals including the time within which appeals to the Court are entered. Presumably under the said power the Supreme Court framed Rules. Under Order XII of the Supreme Court Rules, subject to any special direction which the Court may give in any particular case, the provisions of Order 45 of the Code, so far as may be applicable and of any rules made for the purpose by the High Court, shall apply in relation to appeals preferred under Article 132(1), 133(1) and 135 of the Constitution. Rule 3 says that where an appellant, having obtained a certificate from the High Court, fails to furnish security or makes the deposit required, that Court may, on its own motion or an application made in that behalf by the respondent, cancel the certificate and may give such directions as to costs of the appeals and the security entered into by the appellant as it shall think fit or make such further or other orders as the justice of the case requires. It will be clear from the aforesaid provisions that the Adaptation of Laws Order, 1950, made suitable amendments to section’s 109 and no and Order 45 of the Civil Procedure Code and that the Supreme Court, by virtue of the rule making power conferred upon it by the Constitution, in regard to matters pertaining to appeals, have made the rules applying the provisions of Order 45 of the Civil Procedure Code to appeals preferred under Article 132(1), 133(1) and 135, of the Constitution. We cannot, therefore, accept the argument of the learned counsel that Order 45 of the Civil Procedure Code not having been amended by the High Court of Madras has no application to appeals preferred to the Supreme Court of India. As the appellant failed to comply with the provisions of that Order, we hereby cancel the certificate granted to him. We cannot, therefore, accept the argument of the learned counsel that Order 45 of the Civil Procedure Code not having been amended by the High Court of Madras has no application to appeals preferred to the Supreme Court of India. As the appellant failed to comply with the provisions of that Order, we hereby cancel the certificate granted to him. The respondent will pay the costs of the application to the petitioner. K.C. ----- Certificate cancelled.