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Abdul Latif Khan And Anr. vs Firozi Begam

High Court Of Judicature at Allahabad|29 January, 1908


JUDGMENT Aikman and Karamat Husein, JJ.
1. The appellant is a lady residing in the Rampur State, that is, oat of British India. She brought a suit in the Court of Subordinate Judge of Moradabad to recover a sum of money on account of her dower. The suit was based on a judgment which she had obtained from a Court in Rampur against her husband, the respondent Abdul Latif Khan. Her suit was dismissed. She appealed. On the application, of the respondent, she was on the 3rd of November 1906 ordered by the appellate Court to furnish security for he appeal under costs under the provisions of Section 549 of the Code of Civil Procedure. The 15th of December 1906 was the time fixed within which the security had to be furnished. The appellant did not furnish the security within that time. On the 19th of December 1906, she asked for an extension of time within which to file the security. Although the time had expired, the learned Judge had authority to extend the time, vide decision of the Privy Council in Budri Narain v. Mussummat Sheo Koer (1889) L.R. 17 I.A. 1. Unfortunately for the appellants the learned Judge to extend the time. He sets out in his order of the 19th December 1906 that the appellant had been allowed six weeks within which to furnish the security. This he considered ample time, and he remarks that no attempt was made to have that time extended, meaning clearly, no attempt within the time allowed. He adds: "I see no sufficient reason for allowing this application or for extending the time allowed and consequently refuse the application." On the following day he rejected the appeal under the provisions of Section 549 of the Code of Civil Procedure. On the 15th February the appellants presented another petition asking to be allowed to deposit security and that the appeal might be restored to its original number. In support of her application she relied on a decision of the Privy Council in Kaur Balwant Singh v. Kaur Doulut Singh (1886) L.R. 13 I.A. 57. The learned Judge held that the case was very different from the one with which he had to deal and refused to restore the appeal. It is against that order that the present appeal has been preferred. For the respondents a preliminary objection is raised that no appeal lies. It is noticeable that there is no provision in the Code similar to that contained in the second paragraph of Section 381 which allows a plaintiff, whose suit has been dismissed for failure to furnish security for costs, to apply for an order to set the dismissal aside. Nor can we find in the Code any right of appeal given from an order refusing to readmit an appeal under the circumstances set forth above. In reply to the preliminary objection the learned vakil for the appellant relies on the Privy Council decision cited above. The facts of that case were of a peculiar nature and in our opinion the learned Judge is right in holding that it is distinguishable from the present case. We are compelled therefore to sustain the preliminary objection. At the same time we take the opportunity of expressing our opinion that, considering the serious consequences entailed by an order under Section 549, it would be well if the Legislature should consider whether it is not advisable to embody in the new Code of Civil Procedure some provision analogus to that contained in the second paragraph of Section 381 and to give a right of appeal from orders passed under Section 549. But as the law at present stands we can find no provision in it under which this appeal can be brought. We may mention that a Full Bench of this Court has held in Lekha v. Bhauna (1895) I.L.R. 18 All. 101 that an order rejecting an appeal under Section 549 is not appealable either as an order or as a decree. The case may be a hard one, but under the circumstances we have no alternative but to sustain the respondent's preliminary objection and dismiss the appeal, which we hereby do. Under the circumstances of the case we make no order as to costs.
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Abdul Latif Khan And Anr. vs Firozi Begam


High Court Of Judicature at Allahabad

29 January, 1908
  • Aikman
  • K Husein