The main legal point established in the judgment is that poverty alone is not sufficient to warrant a pauper appellant to furnish security for costs, and the court's discretion should be regulated by statutory provisions and inherent powers.

Kinkhede, A J C—This is an application by respondents for calling upon the appellant to furnish security for their costs of appeal and of the original suit under Order 41, Rule 10, Civil P.C. In view of the affidavit which supports the application I was on the point of passing a conditional order demanding the security from the appellant. But as in the meantime, the appellant came and raised the point that as he was allowed to appeal as a pauper, he could not be called upon to furnish security, I stayed my hands and gave the parties a date to argue the question whether security could be demanded from a pauper appellant. The appellant relies on Nusseerooddeen Biswas v. Ujjul Biswas,1870 17 WR 68, Mt. Hafizan v. Abdul Karim,1908 12 CalWN 163, Khemraj Shrikrishnadas v. Kisanlala Surajmal, 1918 42 ILR(Bom) 5, and Nazim v. Abdul Hamid,1922 AIR(Lah) 87, in support of his contention that a security cannot be demanded. The respondents on the other hand rely on B.F. Saldanha v. Henry Hart, 1920 43 ILR(Mad) 902, in support of their application for security.

2. I have considered all the cases cited also amongst others the cases of Seshayyangnr v. Jainulavadin,1881 3 ILR(Mad) 66, and Srinivasa Sastrigal v. Subramania Aiyer,1907 17 MadLJ 583, on which the view taken in B.F. Saldanha v. Henry Hart, 1920 43 ILR(Mad) 902 is based In addition, to them I have also looked up the cases of Jogendra v. Funindro,1871 18 WR 102, Maneckji Limji Mancherji v. Goolbai,1878 3 ILR(Bom) 241, Ramsing v. Bahubai,1903 5 BLR 661, Lakhmi Chand v. Gatto Bai,1885 7 ILR(All) 542, Jiwan Ali Beg v. Basa Mal,1886 8 ILR(All) 203, Konammal v. Annadana Jadaya Goundan,1923 AIR(Mad) 204 and Ma Saw v. Maung Shwe Gon,1923 AIR(Rang) 244 and several others here-in-after learned to, with a view to satisfy myself as to the principle which underlies the provision for demanding security.

3. It appeals that the English law on the point is divergent Some English cases make it obligatory on a Court to demand security on the ground of poverty, while others treat it as purely discretionary Leaving this divergence in the English law to itself, let me turn to the Indian Statute. It appeals that in enacting the provisions of Order 41, Rule 10, and of the corresponding sections of the old Civil Procedure Codes of 1877 and 1882, the legislature did not lay down any hard and fast rule in regard to this matter. It could, therefore be reasonably stated that there is in the Indian statute no provision which goes to the length of casting on the Court in every case the obligation, as a matter of law, to make order that security shall be given for costs of an appeal. It is a matter absolutely in the judicial discretion of the Court. It, therefore, follows that in special circumstances, the Court may direct security to be given, but the Court is not bound to do so. Where highly penal consequences will be entailed upon the appellant by the order, the Court would, I think, as a general rule, not be bound to make order for security of costs.

4. It is on this principle that it has been held in Indian Courts that more proverty is no ground for requiring an appellant to give security for the costs of the appeal: Maneckji Limji Mancherji v. Goolbai, 1887 14 ILR(Cal) 533 and Lakhmi Chand v. Gatto Bai,1885 7 ILR(All) 542. But the Full Bench of the Allahabad High Court in Jiwan Ali Beg v. Basa Mal,1886 8 ILR(All) 203, has laid down the salutary rule in very guarded terms that the mere fact of poverty of the appellant standing by itself and without reference to any general facts of the case, ought not to be considered sufficient alone to warrant his being required to furnish security for costs. There are cases in which it has been held that a Court will as a general rule demand security for costs from, a poor or insolvent appellant if it is proved to the satisfaction of the Court that the appellant is not the real litigant but a mere puppet in the hands of the others who are able to furnish security Joge