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1921 Supreme(SC) 4
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT CAVE, LORD MOULTON, LORD SUMNER, AND SIR JOHN EDGE.
SABITRI THAKURAIN - Appellant
Versus
SAVI - Respondents
On Appeal from the High Court at Calcutta.
Decided On : Jan. 20. 1921.
Solicitor for appellant :J. Tucker. Solicitor for respondent: G. C. Farr.
Procedural rules of the Code of Civil Procedure, 1908, apply to Letters Patent appeals. The mandatory requirement to reject an appeal for failure to provide security for costs (Order xli, r. 10) precludes the court from subsequently allowing the appeal to proceed in forma pauperis.
Headnote:(A) Code of Civil Procedure, 1908 - Order xli, r. 10; Sections 104(1), 117, 120, 121, 151 - Letters Patent, 1865 - Section 15 - Application of procedural rules to appeals - A requirement for security for costs is a rule of procedure and not a restriction on the express right of appeal - Procedural regulations under the Code are applicable to the jurisdiction exercisable under the Letters Patent, provided they do not restrict the express right to appeal.
(B) Code of Civil Procedure, 1908 - Order xli, r. 10(2) - Failure to furnish security for costs - The provision stating that the Court "shall reject the appeal" if security is not complied with during the fixed period is mandatory and not permissive - A court is precluded from granting permission to continue an appeal in forma pauperis if such a grant would contradict the mandatory terms of the rule requiring rejection for default in security.
(C) Code of Civil Procedure, 1908 - Section 151 - Inherent powers of the Court - General saving clauses regarding inherent powers to secure the ends of justice do not empower a court to refuse the application of a specific statutory rule of procedure having statutory force, unless there are compelling circumstances to justify such a departure.
Facts of the case:
An appellant filed a petition for the administration of a deceased's estate. Following the dismissal of the petition, an appeal was lodged. The court ordered the appellant to furnish security for costs within a specified period. The appellant failed to comply with the order. After the deadline had passed, the appellant filed a petition seeking leave to continue the appeal in forma pauperis. The court rejected the application and dismissed the appeal, holding that it was bound by the mandatory provisions of the Code to reject the appeal for failure to provide security.
Findings of Court:
The court found that the provisions of the Code of Civil Procedure, 1908, including the rules regarding security for costs, apply to appeals brought under the Letters Patent. It was determined that the requirement to reject an appeal for non-compliance with a security order is mandatory, and the court's inherent powers cannot be used to override this statutory obligation in the absence of exceptional circumstances.
Issues: Whether the rules of the Code of Civil Procedure, 1908, specifically Order xli, r. 10, apply to appeals brought under the Letters Patent, and whether a court can allow an appellant to proceed in forma pauperis after the time for furnishing security for costs has expired.
Ratio Decidendi: The court reasoned that there is a marked difference between the right to appeal and the procedural terms under which that right is exercised. While the right to appeal under the Letters Patent is saved by Section 104(1) of the Code, the procedural rules regulating the conduct of such appeals remain applicable. Since Order xli, r. 10(2) uses mandatory language ("shall reject"), the court has no discretion to keep alive an appeal once the appellant has defaulted on the security for costs, regardless of a subsequent application to proceed as a pauper.
Result: The appeal fails.
Legal Category Hierarchy
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practice and procedure
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appellate procedure
- security for costs
- in forma pauperis
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civil procedure code
- application to high courts
- inherent powers
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appellate procedure
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family law
- probate and administration
Judgement
Appeal by special leave from an order of the High Court (March 23, 1915).
The appellant petitioned the High Court in its original civil jurisdiction under the Probate and Administration Act (V. of 1881) for administration of her deceased husbands estate with his will annexed. The petition was dismissed and the appellant appealed to the appellate jurisdiction of the Court under s. 15 of the Letters Patent of 1865. An order was made on December 18, 1914, that she should give security for costs within two months. She failed to comply with that order, and on March 23, 1915, she petitioned for leave to continue her appeal in forma pauperis. The application was rejected, and by a separate order the appeal was dismissed.
The appellant obtained special leave to appeal to His Majesty in Council from the order refusing to grant her leave to continue the appeal in forma pauperis.
1920. Nov. 9, 10. Sir Erle Richards K.C. and Abdul Majid for the appellant.
Kenworthy Brown and E. B. Raikes for the respondent.
The arguments sufficiently appear from the judgment of the Judicial Committee.
1921. Jan. 20. The judgment of their Lordships was delivered by
LORD SUMNER. The appellant in the present case presented a petition to the High Court at Calcutta on its original civil side in the exercise of its testamentary and intestate jurisdiction under the Probate and Administration Act, 1881, praying for administration to the property of her late husband with a copy of his last will annexed. The grant was opposed by the present respondent, the manager of the deceaseds property, who had applied to the Court of the District Judge of Bhagulpore for a grant of probate under an earlier will and entered a caveat to the widows petition. Under the will which she propounded she would be entitled to a life interest in all the property of the deceased ; under the earlier will her interest was limited to a mere pittance.
The late husband of the appellant was a Brahman by caste and a man of considerable means. He is described as having been a man of progressive ideas but intemperate habits. For the first he was excommunicated by the members of his caste, and owing to the second he died an untimely death at his house at Garganibas, after a bout of conviviality which lasted about a week, leaving, as his widow alleges, the will which she relied upon, bearing date about a fortnight before he died. On account of the excommunication of the deceased from his community serious questions arose as to his cre mation and sradh ceremonies and, during the widows absence at Gaya for this purpose, the respondent, as she alleges, broke open the boxes belonging to the deceased and made away with this will. Fortunately a fair copy of it was forthcoming, and she put it forward, relying upon the evidence of the attesting witnesses, two members of the Bhagulpore Bar.
The petition was heard by Choudhuri J., who, after taking the evidence of the attesting witnesses and of the witnesses for the present respondent (two of whom are said to have been her late husbands boon companions and " inimically disposed to her because she stood in the way of her husbands leading a bad life and giving such pleasure parties "), rejected the evidence of the attesting witnesses and dismissed the petition.
From this decision Srimati Sabitri Thakurain appealed to the High Court in its appellate jurisdiction under s. 15 of the Letters Patent of 1865. It was evident that, on the one hand, her own interest in the matter was very considerable and that, on the other, further litigation might involve the respondent in great expense with small prospect of being recouped if he won. The respondent accordingly petitioned the High Court on its appellate side for an order that the appellant should give security for costs under Order xli., r. 10 (1.), of the Code of Civil Procedure, 1908, and on December 18, 1914, an order was made, that the plaintiff-appellant should within two months from that date furnish sec
