Research › Browse › Judgment

Madhya Pradesh High Court · body

1956 DIGILAW 76 (MP)

Hiralal v. Kundanmal

1956-05-11

NEWASKAR, SAMVATSAR

body1956
JUDGEMENT : SAMVATSAR, J. In this case, on the application filed by the petitioners, this Court by its order dated 7-3-1956, ordered that a certificate be issued to the petitioners that Civil First Appeal No. 24 of 1955 was a fit case for appeal to the Supreme Court. Pursuant to this order a certificate was actually issued to the petitioners on 14-3-1956. 2. Under O. 45, R. 7, Civil Procedure Code, read with R. 6 of the Rules framed by the High Court for appeals to Supreme Court, the petitioners had to (a) furnish security in cash or in Government securities for costs of the respondents, and (b) deposit the amount required to defray the expenses of translating, transcribing, indexing and transmitting to the Supreme Court a correct copy of the record. 3. Under Rule 6 it is provided that this deposit shall be made 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 or within six weeks from the date of grant of certificate, whichever is the later date. 4. A sum of Rs. 2,000 is fixed as the amount of security that would ordinarily be deposited by the appellants for costs of the respondent and the same is the amount fixed for defraying the expenses of translating, transcribing, indexing and transmitting to the Supreme Court a correct copy of the record of the case. 5. In the present case the appellants (petitioners) did not comply with the requirements of O. 45, R. 7. Civil Procedure Code or with Rr. 6, 7 and 8 of the Rules framed by the High Court for appeals to the Supreme Court. On 20-4-1956 the appellants submitted an application in which they alleged that they have made arrangements for depositing Rs. 2,000 to defray the expenses of translating, transcribing, indexing and transmitting to the Supreme Court a correct copy of the record, but have not been able to arrange to deposit the further sum required as security for costs of the respondent. In this application they prayed that they should be permitted to furnish the required security in the form of a surety bond and be excused from furnishing the security in cash or in Government securities of Rs. 2,000. 6. In this application they prayed that they should be permitted to furnish the required security in the form of a surety bond and be excused from furnishing the security in cash or in Government securities of Rs. 2,000. 6. On 21-4-1956, the appellants submitted a further application in which after repeating the prayer contained in the previous application of 20-4-1956, they stated that they had been able to make arrangements for depositing the amount required for expenses of translating, transcribing, indexing and transmitting to the Supreme Court a correct copy of the record, but they would require a months time to deposit the sum in Court. In the end they prayed for extension of time by one month to enable them to deposit the sum of Rs. 2,000 required for expenses of preparing the record. 7. I shall consider the first application first. Order 45, Rule 7 Civil Procedure Code provides that : "Where the certificate granted, the applicant shall (within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow), from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date. (a) Furnish security (in cash or in Government securities) for the costs of the respondent, and (b) deposit the amount required to defray the expenses of translating, transcribing, indexing (printing) and transmitting to the Supreme Court a correct copy of the whole record of the suit, except......" 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." 8. At the time of the passing of the order granting certificate, to the appellants, there was no prayer made by them for being permitted to furnish security in a form other than the one prescribed under the rules and therefore we have made no order under the provision to Rule 7 of Order 45 in this respect. 9. The question that now arises for consideration is, whether on the language of the proviso, which is also the language of Rule 7 of the Rules framed by the High Court for appeals to the Supreme Court, we can make any such order at this stage. 10. 9. The question that now arises for consideration is, whether on the language of the proviso, which is also the language of Rule 7 of the Rules framed by the High Court for appeals to the Supreme Court, we can make any such order at this stage. 10. The words which are material for consideration are the words "at the time of granting the certificate" which obviously mean that this Court wilt have no power to make any subsequent order as regards the form of the security to be furnished by the appellants at any later stage. 11. Mr. Pande, learned Counsel for the appellants, however, contended that the order as regards the security contemplated in the first proviso to Rule 7 of Order 45, had to be passed at the time when the certificate is actually issued by the Court under its own signature and had no reference to the date on which the order for issuing such a certificate was made by the Court. Pursuing this line of argument Mr. Pande submitted that the certificate issued in this case was not a proper certificate and this Court can therefore issue a fresh certificate and at the time of issuing it, pass the necessary order regarding the substituted form of security. 12. Mr. Pande frankly conceded that there is no decided case which directly supports his contention and the contrary view appears to have prevailed in the Indian High Courts. 13. In R. Arunachala Naidu v. Messrs. S.R. Balakrishna and Co., AIR 1925 Mad. 449 (A) the Madras High Court had to consider a similar case. In that case the petitioner wanted to appeal to the Privy Council and approached the High Court for a certificate under the provisions of O. 45, R. 3 (1) Civil Procedure Code. The application was granted and a certificate was granted on 29-9-1924. On 7-10-1924 the petitioner made an application under the first proviso to R. 7 of O. 45 for being permitted to offer immovable property as security in place of cash or Government Bonds. It was held that an application that, on the ground of special hardship some other form of security may be allowed to be furnished, it made subsequent to the making of an order granting the certificate under R. 7 (1), is incompetent. 14. It was held that an application that, on the ground of special hardship some other form of security may be allowed to be furnished, it made subsequent to the making of an order granting the certificate under R. 7 (1), is incompetent. 14. It was contended before the High Court on behalf of the petitioner that O. 45, R. 7, Proviso (1) refers not to an order granting certificate but to the actual issue of a document called "certificate." The contention was negatived and it was held that the granting of a certificate being a judicial act it ought more properly to refer only to the time that the decision of the Court is arrived at with regard to the grant or refusal and not to the time when the formal document is drawn up and issued. Srinivasa Aiyangar, J., observed as follows : "Further, the second proviso also newly added to R. 7 lays down that no adjournment should be granted to any opposite party, that appears for the purpose of objecting to the nature of the security. The expression any opposite party that appears would seem clearly to indicate any such party appearing on the notice to the opposite party referred to in R. 3 of the order, that is to say, in other words, it is only any party that appears on the notice to show cause why leave should not be granted to the petitioner to appeal to the Privy Council that is allowed to object at the time with regard to the form or the nature of the security. This again would seem to contemplate beyond all doubt that the whole question with regard both to the granting or refusal of the certificate and the form or the nature of the security should be determined finally by orders made at the same time without any further delay." 15. The decision of the Madras High Court has been followed recently by the High Court of Orissa in Pitamhari Dibya v. Chandrasekhar, AIR 1954 Orissa 71 (B). In that case it is held that the expression "at the time of granting the certificate" in the proviso should be read as being limited to the time when the Court orders the issue of a certificate. 16. In that case it is held that the expression "at the time of granting the certificate" in the proviso should be read as being limited to the time when the Court orders the issue of a certificate. 16. I respectfully agree with the view expressed by the High Courts of Madras and Orissa in the aforesaid cases and hold that an order under the first proviso to R. 7 of O. 45 Civil P. C. can only be made at the time of passing of the order for granting the certificate. 17. In this view of the case, I am of opinion that it is not permissible for us to allow the application of the appellants and to permit them to furnish a surety bond of a solvent party in place of cash or Government securities. The appellants prayer in this behalf must therefore be rejected. In view of the rejection of this application it is unnecessary to consider the second application filed by the appellants on 21-4-1956, 18. The appellants having obtained a certificate from this Court, failed to furnish the security and to deposit the required amount. The certificate issued cannot therefore, be allowed to stand and must be cancelled. 19. I therefore cancel the certificate issued to the appellants under the provisions of R. 11 of the Rules framed by the High Court for appeals to the Supreme Court. 20. The appellants have not furnished any security nor have they deposited anything towards the costs and expenses of preparing the record. There is therefore no question of giving any direction as to the costs of appeal and the security entered into by the appellant. 21. The result is that the applications filed by the appellants on 20th and 21st of April, 1956 stand dismissed. The certificate issued to the appellants is also hereby cancelled. 22. NEWASKAR, J. :- I agree.