JUDGMENT
Chagla, C.J.
1. This is a notice of motion taken out by respondent 6 requiring the appellant to deposit in Court the sum of Rs. 2,750 being the amount of the costs of the original suit as settled & paid by the Official Assignee of Bombay respondent 6, to his attorneys, & such further amount as to this Hon’ble Court may seem adequate for the costs of the Official Assignee of this appeal. It appears that the suit from which this appeal is preferred was dismissed by Shah J. on 3-8-1950. The learned Judge directed the appellant, who-was the plff. in the suit, to pay the costs of respondent 6 who is the assignee of his estate. From that judgment the appellant has come in appeal.
2. The order for costs made by the learned Judge was that the plff. should pay the taxed costs of respondent 6. The costs have not yet been taxed, & needless to say, as the costs have not been taxed, no attempt has been made or could be made by respondent 6 to execute that order against, the appellant. Therefore, it cannot be said in this case that the appellant has failed to comply with the order of costs passed against him or is in any way in contempt in not carrying out that order of costs. What is urged against the appellant is that he is an undischarged insolvent, that if this appeal is prosecuted he will not be able to pay the costs of the suit, & that even the costs of the appeal which he has deposited, viz. Rs. 500, under the High Court Rules are not adequate & therefore further security for the costs of the appeal should be ordered against the appellant.
3. Now, a very salutary rule was laid down as far back as 1888 by Chief Justice Sargent in Ahmed v. Shaik Essa Kaliffa, 13 Bom. 458 There also an application was made for further security for costs of the appeal & also the costs of the original hearing. Mr. Inverarity, who appeared for the appellants pointed out to the Court that as for security for the costs of the trial Court the application was unprecedented. We have asked Mr. Maneksha who appears for the appellant in this case & who is a very senior member of the Bar whether he has any recollection of any such application having been made to the Court of Appeal, & Mr. Maneksha very fairly concedes that he is not aware of any such application. Neither I nor my brother is aware also of any such application having been made to this Court, or, if made having resulted in an order being made for security for costs of the hearing in the lower Court. Now, the principle that the learned Chief Justice laid down was that while accepting the fact that under Order XLI, Rule 10 it is entirely in the discretion of the Court to order
the appellant to give security for the coats of the lower Court, that discretion should only be exercised provided the Court of Appeal was satisfied that there was a vexatious determination on the part of the appellant not to pay the costs of the suit already ordered. The learned Chief Justice thought that that was a very exceptional circumstance which indicated a wilful determination on the part of the appellant not to obey the order of the Court. In that particular case the learned Chief Justice came to the conclusion that the plffs.-appellants were unable to pay the costs ordered. If so, according to the learned Chief Justice, there was nothing vexatious in their not obeying the order; it was their misfortune, not their fault; & therefore he refused to order security for the costs of the Court below. In this case we have not even reached the stage of the appellant refusing or failing to pay the costs ordered. As I just pointed out, as the costs have not been taxed, no question at this stage arises of a failure on the part of the appellant to pay the costs ordered. With regard to the further costs of appeal, the learned Chief Justice held that the sum of Rs. 500 fixed by the High Court Rules as security for costs of the appeal should be the only security which should ordinarily be ordered. Only in exceptional cases that rule should be departed from & the learned Chief Justice said that as far as he was concerned he had never departed from that ordinary rule. We do not see anything exceptional in this particular appeal which would induce us to depart from that rule.
4. Mr. Maneksha has relied on a judgment of the Calcutta High Court in Birendranath, v. Sultan Muwvayyid Zada, 53 cal. 117. The head-note on which Mr. Maneksha relies does not really do justice to the judgment of Chief Justice Rankin, & the head-note is this:
“Exception may be made for special reason, but it is the settled practice, if the respondent asks for it, to require security for costs to be given by an appellant, who would be unable through poverty to pay the respondent’s costs of the appeal, if it should be unsuccessful.”
As the head-note clearly indicates, this principle applies to costs of the appeal, & the learned Chief Justice in his judgment discusses the English cases which relate to security being given for the costs of the appeal & it is from those judgments that this principle is deduced. The head-note suggests as if the learned Chief Justice applied this principle to security for coats of the original suit. But when we actually turn to the judgment at p. 121, where the learned Chief Justice gives his decision after setting out the English cases, the learned Chief Justice says:
“In these circumstances, it appears to me that this is a prima facie case in which security for costs should be ordered;”
& when we turn to the facts of the case we find that in this case costs had been directed to be paid by the appellant, the appellant had failed
to pay the costs, execution proceedings had been
taken out in respect of certain taxed costs, &
they had not been realised. Therefore, it cannot
be said that in this particular case the principle
laid down by Chief Justice Sergant was departed
from. It would certainly not be a true or a sound
principle to lay down that wherever an appellant,
through poverty or through other inability, is
unable to pay the costs of the trial Court or
might be unable to pay even the costs of the appeal, he should be ordered to give security for
the costs which he has been ordered to pay of the
Court below. The better & sounder principle
seems to be the one enunciated by Chief Justice
Sergant.
5. Mr. Maneksha has also relied on a recent decision of Beaumont C. J. in Pratapgir Narsingirji v. Official Liquidator, Prahlad Mills. 40 Bom. L. R. 470. But that decision does not help Mr. Maneksha because that was a case where the appellant was residing out of British India. The position would have been very different if in this case the appellant was also residing out of British India. We are dealing with a case where the appellant is residing within the Dominion of India, we are called upon not to enforce a mandatory provision of the Code but a provision which is purely discretionary & the question is on what judicial principle we should exercise the discretion. It seems to me that the proper principle is that if we are, satisfied that the appellant is liable to pay certain costs ordered by the Court below & the appellant has contumaciously or wilfully failed to pay those costs, then the Court of Appeal would certainly exercise its discretion against the appellant & order him to deposit the costs of the trial Court.
6. Mr. Maneksha says that the present appeal is
a vexatious appeal and the appellants should not
be allowed to get away with it. But whether the
appeal is vexatious or not can only be decided
after the appeal has been heard. The appellant
has a right to appeal from the judgment of the
lower Court. He has exercised that right, & we
see no reason why we should compel him to give
security for the costs of respondent 6 of the suit
in the Court below.
7. The result is that the motion fails & is dismissed with costs.