Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Soonabai vs Tribhovandas N. Malvi on 25 February, 1908
Equivalent citations: (1908) 10 BOMLR 337
Author: L Jenkins
Bench: L Jenkins, K.C.I.E., Batchelor


Lawrence Jenkins, C.J.

1. In favour of the competence of these appeals there is the direct authority of the Madras High Court in Seshagiri Row v. Nawab Askur Jung Aftab Dowla (1902) I.L.R. 26 Mad. 502, and though much has been forcibly urged against this view, we ought, 1 think, for the sake of uniformity to accept thin case as the basis of our decision and hold that an appeal lies.

2. Then had the learned Judge power under Section 380 of the Civil Procedure Code to order the plaintiff to give security. Though the suits are not exclusively for money, each will, if the plaintiff succeeds, result in a decree for money on the relief sought, and, I. therefore,think comes within the section, and there is no ground for holding that in making the orders under appeal the learned Judge exceeded the just Lmute of his discretion.

3. This appeal must, therefore in each case be dismissed with costs.

Batchelor, J.

4. These are appeals from an order of Davar J. requiring the piaiulill” appellant under Section 380, Civil Procedure Code to deposit Rs. 3000 as security for the first defendant’s costs in the suits.

5. The first question to be decided is whether an appeal lies from the order. That depends upon the further question whether the order is a “judgment” within the moaning of Clause 15 of the Letters Patent, for it in admitted that an appeal will not lie upon any other ground. The point has frequently been before the Courts, and, as I understand the decisions, the Courts have always professed to follow the ruling laid down in The Justices of the Peace for Calcutta v. The Oriental Gas Co. (1872) 8 Beng. L.R. 433 where it was said that judgment in Clause 15 means a decision which affects the merits of the question between the parties by determining same right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.” It is unnecessary to refer to the numerous subsequent oases to which our attention has been called, for, as I have said, the test laid down above has boon uniformly accepted. Reference must however, be made to Hadjee Ismail Hadjee, Hubbeeb v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng, L.R. 91 where the operation of the rule was further explained by Sir Richard Couch C.J. That was a case where leave had been given to the plaintiff under Clause 12 of the Letters Patent to institute his suit in the High Court of Calcutta, and the question was raised whether an appeal, lay from the order. The Chief Justice held that it did, observing that it was “not a mere formal order, or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between thorn, (so, the parties), namely the right to sue in a particular Court.” I am of opinion that this reasoning covers the case of the order now under discussion, for the effect of it is, at least conditionally, to deprive the Court of the jurisdiction which it otherwise would have to try the plaintiff suit, No doubt, jurisdiction would be recovered on the plaintiff making the prescribed deposit, but for the time being and unless this further step is taken, the order ousts the jurisdiction of the Court. For these reasons I think that the appeal is competent and this finding is in conformity with the decision of the Madras High Court in Seshagiri Row v. Nawab Ashur Jung Aftab Dowla (1902) I.L.R. 26 Mad. 502.

6. There remains the question whether the suits are ” suits for money” within the meaning of the second paragraph of Section 380 The phrase is not one which lends itself to very precise definition, and the matter is somewhat complicated by the difficulty of ascertaining the exact object which the Legislature had in view in adding this clause to the section. The clause was added by the Debtors Act (VI of 1888), which also added Section 245A prohibiting the arrost or imprisonment of a woman in execution of a decree for money; and it has been held that the reason of the rule was to make provision for the costs of a successful defendant as against a woman plaintiff: see, for instance, Sale J.’s remarks in In the goods of Premchand Moonshee (1894) I.L.R. 21 Cal. 832. This explanation is not perhaps perfectly satisfactory, since it fails to account for the circumstance that the rule is restricted to suits for money. But I cannot discover that the Legislature had any other or further object than that ascribedtoit by Mr. Justice Sale, and therefore in my opinion the rule should receive a liberal interpretation. This view is in conformity with previous decisions, of which I need only notice Degumbari Debi v. Aushootosh Banerjee (1890) I.L.R. 17 Cal. 610 and Bai Porebai v. Devji Meghji (1898) I.L.R. 23 Bom. 110. Applying the rule to the case before us, I think that both suits should be regarded as suits for money. Money is involved in the prayers in the plaints, and a determination in the plaintiff’s favour would entail a decree for money. Moreover, the two suits are closely connected, and while in one of them, Suit No. 1517, there is a claim for shares of the total face value of nearly Rs. 2 lakhs, in the other suit, No. 1518, there is a claim for large amounts of cash, including sums of Rs. 30,000 & Rs. 24,000.

7. It has not been argued before us that the learned Judge, if ho had the power to make the orders under appeal, ought not to have made them; and upon the merits of the orders I entirely concur with Mr. Justice Davar.

8. I agree, therefore, that these appeals should be dismissed with costs.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

107 queries in 0.132 seconds.