The Court has the power to accept security in immovable property, even though no application was made to the Court for permission to deposit such Security in accordance with the proviso to Order 45, Rule 7 (1), if the justice of the case demands it.

( 1 ) THIS is a somewhat unusual application. The petitioners were given leave to appeal to the Federal Court and the last day for depositing the security required by Order 45, Rule 7, Civil P. C was 28th February 1950. On 27th February 1950, the proposed appellants tendered security in immovable property which they value at over Rs. 20,060. This security was tendered in this Court within time and the question arises whether this Court can accept that security in lieu of cash or Government securities. Order 45, Rule 7, of the Code provides ; "where the certificate is 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 is cash or in Government securities for the costs of the respondent, and (b) deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting to His Majesty in Council a correct copy of the whole record of the suit. . . . 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: provided further that no adjournment shall be granted to an opposite party to contest the nature of such security. . . . "

( 2 ) IT is to be observed that the amount required to defray the expenses of translating and forwarding the record to Delhi has been deposited in cash and the only question is whether security in immovable property can be accepted in lieu of Rs. 4,000 in cash or in Government securities.

( 3 ) THERE can be no question that the proposed appellants could have asked for such an order when they obtained leave to appeal. The proviso to Sub-rule (1) of Rule 7, expressly permits the Court to allow such an application. However, no application was made at the time of ranting the certificate for leave to appeal and the question arises whether it can be made now.

( 4 ) I do not think that this is a case where the proposed appellants ask for an extension of time. It is true that time has elapsed, but as I have already said, this security was tendered within time and the only question that we have to decide is whether or not the Court has powar to accept security in immovable property instead of cash or Government securities. I may say that learned Advocate for the proposed appellants informed this Bench on 27th February that he had tendered security in immovable property and asked the Bench then to decide the matter. But we could not do so and adjourned the matter to today for decision. The application must therefore be treated as having been made to this Court within time.

( 5 ) WE must now consider whether the Court has power to accept security in immovable property, though no application was made to the Court for permission to deposit such Security in accordance with the proviso to Order 45, Rule 7 (1 ).

( 6 ) THE Privy Council had drafted certain rules Relating to orders which this Court could make when the provisions of Order 45, Rule 7 had not been complied with. These rules have now been adopted by the Supreme Court. The Privy Council rule was Rule 9, of the Privy Council Rules dated 9th February 1920. The rule was in these terms: "where an appellant, having obtained a certificate for the admission of an appeal falls to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on an application in that behalf made by the respondent; cancel the certificate for the admission of the appeal and may give such directions as to the cost of the appeal and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises