Judgment 1. This miscellaneous appeal is by the plaintiff appellants against an order refusing to restore the appeal filed by them in the court of appeal below. 2. The title appeal filed by the plaintiff appellants arose out of a suit for declaration of title and confirmation of possession. The appeal was filed sometime in the year 1967. On 15-12-1969 the defendant respondents filed an application before the court of appeal below under O.41, R.10, Civil P. C. (hereinafter referred to as the Code) for a direction that the appellants may deposit the security for the cost of the appeal as well as cost allowed in the suit. The ground urged in the petition was that the appellants were removing their moveables and they are not possessed of any immovable property in India. It is further stated that in the event the appeal is dismissed with costs, they will not be able to realise the cost. A rejoinder petition was filed wherein it was taken that even though the appeal was filed in the year 1967, the respondents after the lapse of two years chose to file this petition and, therefore, they will be deemed to have waived their right to recover cost in advance. It is also stated that no instances of removing moveables have been disclosed in the petition and the said fact is a downright falsehood. It was also contended that merely they are poor men and they may lose the appeal is no ground for realising the cost in advance. 3. On 29-8-1970 the court of appeal below while directing to furnish security in cash to the extent of Rs. 200.00 on account of approximate costs of the appeal, founded the order on the reason that O.41, R.10 of the Code cast an absolute discretion on the court to decide in what classes of cases security is to be demanded. The court of appeal below made no reference in its order whether the appeal filed was frivolous. It also did not find that the appellants were removing any moveable. The only ground which persuaded it to pass that order that the appellants had made no submission as to whether they were possessing any immoveable property. The security asked for was only for approximate cost of the appeal and not of the trial Court. 4. It also did not find that the appellants were removing any moveable. The only ground which persuaded it to pass that order that the appellants had made no submission as to whether they were possessing any immoveable property. The security asked for was only for approximate cost of the appeal and not of the trial Court. 4. It appears that time was granted from time to time, but the amount was not deposited and, therefore, ultimately the appeal was dismissed in exercise of the powers conferred under O.41. R.10(2) of the Code. 5. An application for re-admission of the appeal and for depositing the sum required by the court was filed on 21-8-1972 along with a petition for condonation of delay. In the said petition it was stated that the money was handed over to the Karpardaz long before, but it appears that he did not make the deposit. The Karpardaz had also died in June, 1972. On and upon the death of the Karpardaz when the appellants intended to take the records back from him. they learnt through another Karpardaz on 22-7-1972 that the money entrusted to the old Karpardaz was not deposited and the appeal stood dismissed on 24-4-1972. 6. Learned counsel for the appellants contended that the order directing deposit of the cost itself is without jurisdiction. The discretion conferred under O.41, R.10(1) of the Code is not an absolute one and cannot be exercised arbitrarily, but very sparingly and in a very suitable case. The court has nowhere recorded a finding that the suit and/or the appeal was vexatious. It has nowhere even indicated that the appeal was frivolous. The only reason stated is that the appellants have not been able to show that they have immoveable property other than the one in the suit. 7. He further submitted that the court of appeal below ought to have restored the appeal because the appellants were able to prove by examination of a large number of witnesses that the money was entrusted to the Karpardaz and the court of appeal below scrapped the evidence of the witnesses without giving a persuasive reason more particularly in absence of any reliable evidence on behalf of the respondents. Learned counsel stated that the court of appeal below itself stated that the defendants (respondents) evidence in this regard is competent (sic). 8. Mr. Learned counsel stated that the court of appeal below itself stated that the defendants (respondents) evidence in this regard is competent (sic). 8. Mr. Samaiyar appearing for the intervener respondents, on the other hand, submitted that the order D/-29-8-1970 has gained finality and, therefore, illegality of the order cannot be challenged. He further submitted that considerable time was given to the appellants to deposit the cost and the same having not been deposited, the court of appeal below was justified in dismissing the appeal on 24-4-1972. He has also contended that the court of appeal below has given good reasons for not restoring the appeal which should not be interfered with. 9. The principle engrafted under O.41, R.10 of the Code is more on the pattern of English law and very seldom resorted to in Indian courts. Lord Esher in Hood Bam V/s. Heriot. (1896) 2 QB 375 observed : "Where the appeal raises grave issues which vitally affect the appellants position, the court may well refuse to make an order, which will have the effect of stifling the appeal, although circumstances may exist which normally would justify an order for security." The suit in the instant case relates to the hearth and home of the plaintiffs and they having lost the suit preferred the appeal and, therefore, the appeal was of considerable consequence for the appellants. This provision came to be considered in the case of P. Raminaidu V/s. P. Venkata Naidu. AIR 1956 Andh Pra 157 wherein a Division Bench of the said Court. Subba Rao. C.J. speaking for the court observed : "To put it shortly, an order under this rule will not ordinarily be made unless the respondent is not guilty of laches and the appeal is a frivolous one. So too, an order will not be made on the simple ground of poverty of the appellant unless he is also guilty of vexatious conduct." 10. Not owning sufficient property is not a ground for ordering security and the order of security shall not be made unless prima facie the appeal is frivolous. The poverty of the person is not at all material in this regard. The discretion cast under O.41, R.10 is not an absolute one but must be guided by judicial principle. The provision should not be liberally resorted to unless the court finds contumacious act on the part of the concerned party. The poverty of the person is not at all material in this regard. The discretion cast under O.41, R.10 is not an absolute one but must be guided by judicial principle. The provision should not be liberally resorted to unless the court finds contumacious act on the part of the concerned party. The provision is more akin to the principles governing attachment before judgment. 11. I am convinced that the learned Additional District Judge acted arbitrarily in asking for depositing Rs. 200.00 by way of security for cost. The reasons assigned by him did not fulfil the principles governing the exercise of power under the said Order. Be that as it may, I am also not satisfied with the manner in which the court of appeal below refused to restore the appeal. The appellants examined large number of witnesses and the court of appeal below has casually considered the evidence of the witnesses on the point that the appellants had entrusted the said sum of Rs. 200.00 to Rajeshwar Prasad Karpardaz, 12. Having gone through the records of this case and after having perused the judgment, I am satisfied with the case of the appellants that the fund was made available to the Karpardaz Rajeshwar Prasad and the finding recorded by the Court of appeal below is not sustainable on evidence. Admittedly, Rajeshwar Prasad is dead. When the record was obtained from the sirista of the Karpardaz, the appellants detected that the money was not deposited in court and thereafter the application has been filed. The court of appeal below says that since appellant 1 has examined herself in court, she is not a pardanashin lady and, therefore, she ought to have kept contact with her lawyer and not to have remained contented by handing over the money to the Karpardaz for making necessary deposit. The view expressed by the court of appeal below shows gross ignorance of the practice prevalent in the State of Bihar. It is common knowledge that in the trial courts it is the lawyers clerk who collects the expenses from the client for payment of court-fees and for doing all necessary pairvis in the case. It is very very seldom that lawyer collects the expenses for doing day to day pairvis in the case or to make deposits in court. Mr. Satchidanand Jha, the Additional District Judge ought to have been aware of this position. It is very very seldom that lawyer collects the expenses for doing day to day pairvis in the case or to make deposits in court. Mr. Satchidanand Jha, the Additional District Judge ought to have been aware of this position. The way he has refused to restore the appeal bearing in view the manner in which the deposit for security was ordered leaves an impression in my mind that the court of appeal below took these matters very casually to the detriment of the litigant public. 13. I, therefore, allow the appeal, set aside the order passed by the court of appeal below refusing to restore the title appeal. Since the principal respondents have not appeared, I refrain from awarding any cost.