# SHEW BUX MOHATA AND ANOTHER v. SM. TULSIMANJARI DASI AND ANOTHER

- **Citation:** [1962] 1 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 34 of 1958
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shew-bux-mohata-and-another-v-sm-tulsimanjari-dasi-and-another-2156
- **Pages:** 10

## Headnote

Practice-Security
for costs-Appeal to Supreme CourtCertificate granted by High Court-Power of High Court to extend
time-Code of Civil Procedure, r908 (Act 5 of r908), 0. 45, rr. 7,
IO, II-Supreme Court Rules, r950, 0. XII, r. 3.
On an application made by the appellant, the Calcutta High
Court granted a certificate on May r8, 1956, enabling him to
appeal to the Supreme Court against the judgment and decree
of the High Court.
Under 0. 45, r. 7(r)(a), of the Code of
Civil Procedure, i908, the appellant had to deposit the security
amount for costs of the respondent 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 was the later date. Being unable to deposit
Hidayatullah ].
Marek 29.
644
SUPREME COURT REPORTS
[1962]
z96z
the amount on the due date, the appellant filed an application
on July 4, 1956, before-the High Court praying that the amount
Shew Bux Mohata tendered by him be accepted after condoning the delay, but the
v.
High Court rejected it on the ground that according to the
Tulsimanja.ti Dasi uniform current of decisions of that Court it had' no jurisdiction
to extend the time for depositing the amount.
Held, that reading O. 45, r. 7, of the Code of Civil Procedure,
1908, along with the other relevant provisions of the said Order,
a High Court has jurisdiction to extend time for furnishing
security under the rule, and that the decisions of the Calcutta
High Court to the contrary are erroneous.
Order XII, r. 3, of the Supreme Court Rules, 1950, expressly
recognises and gives jurisdiction to the High Courts to extend
the time for furnishing the security in a proper case.
Raja Kumar Govind Narayan Singh and others v. Shamlal
Singh and others, (1934) 39 C.W.N. 65r and Akimuddin Chowdhury
v. Fateh Chand Mahesri & others, (1939) 44 C. W. N. 920, disapproved.
Roy Jyotindranath Chowdhury & Ors. v. Rai Prasanna Kumar
Banerjee Bahadur, (r906) II C.W.N. lI04, Harendra Lal Chaudhry
v. Sm. Hari Dasi Debei, (1909) l4C.W.N. 420, Nilkanth Balwant
Natu & Ors. v. Shri Satchidanand Vidya Narsinha Bharati & Ors.,
(r927) I.L.R. 5I Born. 4'JO, Bishnath Singh & Ors. v. Batwant Rao
Naik Kalia & Ors., I.L.R. [r939] All 549, Ismail Piperdi v.
Momin Bi Bi & Ors., (1939] Rangoon L.R. 668, Lachmeshwar
Prasad Shukul v. Girdhari Lal Chaudhuri, (r940) I.L.R. 19 Pat.
123, Ghulam Rasul v. Ghulam Qutabud-din, (1942) I.L.R. 23 Lah.
447, Gulam Hussain v. Mansurbeg & Ors., I.L.R. [1952] Nag. 406
and Thota Pitchaiah & Ors. v. M. Vedanta N arasimhacharyulu &
Ors., I.L.R. [1956] Andhra 55, approved.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 34 of 1958.
Appeal by special leave from the order dated July
6, 1956, of the Calcutta High Court in appeal to the
S. C. No. 32 of 1955.
N. 0. Chatterjee and D. N. Mukherjee, for the appellants.
Syarrulas Bhattacharya and S. N. Mukherjee, for
the respondents.
1961. March 29.
The Judgment of the Court was
delivered by
Gajendragadka. J.
GAJENDRAGADKAR, J.-The short question of law
which arises in this appeal is whether the Calcutta
High Court had jurisdiction to extend the time for
•
•
l
I
1 S.C.R. SUPREME COURT REPORTS
645
furnishing security for costs of the respondents under
'96'
O. 45, r. 7, of the Code of Civil. Procedur~ .. T~e Shew 8--:; Mahala
Calcutta High Court has held that it had no JUr1sd10v.
tion to extend time as prayed for by the appellants, Tulsimanjari Dasi
and so the certificate already granted by it to the
-
appellants to appeal to this Court against its own Gajendragadkar J.
decree has been cancelled. The order cancelling the
said certificate has given rise to this appeal by special
leave; and so the only question which we are called
upon to consider is one of construing O. 45, r. 7, of the
Code as well as 0. XII, r. 3, of the Supreme Court
Rules.
The relevant facts leading to the present controversy are not in dispute. The a

## Text

..
1 S.C.R. SUPREME COURT REPORTS
643
passed in 1941, can be read only as affecting a period
r96r
for which there was no limit. If"the sub-section saidM 1-d 8 , ..
h
h II
b
bl ,
f R 50 . h
st.
a ao
aou;•
t at tax s a not e paya e m excess o
s.
wit -
v.
out indicating the period or date, the argument would Municipal Comhave some support, but it puts in a date, and the mittee, Khandwa
operation of the prohibition is confined to a period
& Another
after that date.
The Validating Act, being thus completely within
the powers of the Governor, could remove retrospectively the defect in the earlier Act.
Though it reimposed the tax from the date of the earlier Act, it
took care to impose the tax for a period ending with
March 31, 1938. The impugned Act did not need the
support of the proviso, because it did not fall within
the ban of the second sub-section. In our opinion,
the Validating Act of 1941 was within the powers of
the Governor, and was a valid piece of legislation.
The appeal fails, and is dismissed with costs.
Appeal dismissed.
SHEW BUX MOHATA AND ANOTHER
v.
SM. TULSIMANJARI DASI AND ANOTHER
(P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)
Practice-Security
for costs-Appeal to Supreme CourtCertificate granted by High Court-Power of High Court to extend
time-Code of Civil Procedure, r908 (Act 5 of r908), 0. 45, rr. 7,
IO, II-Supreme Court Rules, r950, 0. XII, r. 3.
On an application made by the appellant, the Calcutta High
Court granted a certificate on May r8, 1956, enabling him to
appeal to the Supreme Court against the judgment and decree
of the High Court.
Under 0. 45, r. 7(r)(a), of the Code of
Civil Procedure, i908, the appellant had to deposit the security
amount for costs of the respondent 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 was the later date. Being unable to deposit
Hidayatullah ].
Marek 29.
644
SUPREME COURT REPORTS
[1962]
z96z
the amount on the due date, the appellant filed an application
on July 4, 1956, before-the High Court praying that the amount
Shew Bux Mohata tendered by him be accepted after condoning the delay, but the
v.
High Court rejected it on the ground that according to the
Tulsimanja.ti Dasi uniform current of decisions of that Court it had' no jurisdiction
to extend the time for depositing the amount.
Held, that reading O. 45, r. 7, of the Code of Civil Procedure,
1908, along with the other relevant provisions of the said Order,
a High Court has jurisdiction to extend time for furnishing
security under the rule, and that the decisions of the Calcutta
High Court to the contrary are erroneous.
Order XII, r. 3, of the Supreme Court Rules, 1950, expressly
recognises and gives jurisdiction to the High Courts to extend
the time for furnishing the security in a proper case.
Raja Kumar Govind Narayan Singh and others v. Shamlal
Singh and others, (1934) 39 C.W.N. 65r and Akimuddin Chowdhury
v. Fateh Chand Mahesri & others, (1939) 44 C. W. N. 920, disapproved.
Roy Jyotindranath Chowdhury & Ors. v. Rai Prasanna Kumar
Banerjee Bahadur, (r906) II C.W.N. lI04, Harendra Lal Chaudhry
v. Sm. Hari Dasi Debei, (1909) l4C.W.N. 420, Nilkanth Balwant
Natu & Ors. v. Shri Satchidanand Vidya Narsinha Bharati & Ors.,
(r927) I.L.R. 5I Born. 4'JO, Bishnath Singh & Ors. v. Batwant Rao
Naik Kalia & Ors., I.L.R. [r939] All 549, Ismail Piperdi v.
Momin Bi Bi & Ors., (1939] Rangoon L.R. 668, Lachmeshwar
Prasad Shukul v. Girdhari Lal Chaudhuri, (r940) I.L.R. 19 Pat.
123, Ghulam Rasul v. Ghulam Qutabud-din, (1942) I.L.R. 23 Lah.
447, Gulam Hussain v. Mansurbeg & Ors., I.L.R. [1952] Nag. 406
and Thota Pitchaiah & Ors. v. M. Vedanta N arasimhacharyulu &
Ors., I.L.R. [1956] Andhra 55, approved.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 34 of 1958.
Appeal by special leave from the order dated July
6, 1956, of the Calcutta High Court in appeal to the
S. C. No. 32 of 1955.
N. 0. Chatterjee and D. N. Mukherjee, for the appellants.
Syarrulas Bhattacharya and S. N. Mukherjee, for
the respondents.
1961. March 29.
The Judgment of the Court was
delivered by
Gajendragadka. J.
GAJENDRAGADKAR, J.-The short question of law
which arises in this appeal is whether the Calcutta
High Court had jurisdiction to extend the time for
•
•
l
I
1 S.C.R. SUPREME COURT REPORTS
645
furnishing security for costs of the respondents under
'96'
O. 45, r. 7, of the Code of Civil. Procedur~ .. T~e Shew 8--:; Mahala
Calcutta High Court has held that it had no JUr1sd10v.
tion to extend time as prayed for by the appellants, Tulsimanjari Dasi
and so the certificate already granted by it to the
-
appellants to appeal to this Court against its own Gajendragadkar J.
decree has been cancelled. The order cancelling the
said certificate has given rise to this appeal by special
leave; and so the only question which we are called
upon to consider is one of construing O. 45, r. 7, of the
Code as well as 0. XII, r. 3, of the Supreme Court
Rules.
The relevant facts leading to the present controversy are not in dispute. The appellants had instituted :a suit (No. 73 of 1944) in the First Additional
Court of the Subordinate Judge of 24 Parganas against
the six respondents. In this suit they claimed a
declaration of title to the immovable property in question and prayed for recovery of possession of the said
property together with mesne profits. The learned
trial judge decreed the suit on l\tiarch 20, 1948. Two
appeals were then filed against the said decree by two
sets of respondents (Appeals Nos. 111 of 1948 and 135
of 1948). Of these two appeals Appeal No. 135 of 1948
was dismissed but Appeal No. 111 of 1948 was partly
allowed and the decree passed in favour of the appellants granting possession and mesne profits to the
appellants against respondent 3 was set aside. Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to
appeal to this Court. The decree under appeal was
one of reversal and the valuation of the subject-matter of the dispute both in the trial court and in the
intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants "were in fact entitled to a certificate under Art.
133 (l)(a) of the Constitution. Accordingly a certificate was issued on l\tiay 18, 1956. The last date for
the deposit of the security amount of Rs. 2,500 and
the printing cost of Rs. 1,184 was June 29, 1956.
According to the appellants owing to circumstances
over which they had no control they could not deposit
646
SUPREME COURT REPORTS
[1962]
i96i
the said two amounts on the due date. Consequently
Sh•w Bux Mohata on. July 4, 1956, ~hey filed an application before the
v.
High Court praymg that the requisite amounts tenderTulsimanj"'i Dasi ed by them be accepted after condoning the delay made
--
by them in the payment of the said amounts. This
Gajendragadhar J. application was rejected on the ground that according
to the uniform current of decisions in the said Court
it had no jurisdiction to extend the time for depositing the amount of security. It is against this order
that the appellants have come to this Court by special
leave.
0. 45, r. 7, of the Code occurs in the Chapter
dealing with appeals to the Supreme Court, and it
deals with the security and deposit which are required
to be furnished and made on grant of certificate to a
party intending to prefer an appeal to this Court.
0. 45, r. 7{l)(a), provides that 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, furnish security in cash or in Government Securities for the costs of the respondent.
The
word "within ninety days or such further period not
exceeding sixty days" which occur in the first part of
the rule have been added by Act 26 of 1920 in substitution for the words "six months" which were originally enacted in the said rule. It is common ground,
and indeed it is not disputed, that prior to the amendment made in 1920 High Courts had jurisdiction to
extend time for furnishing security for cogent and
satisfactory reasons. In Burjore and Bhawani Pershad
v. Mussumat Bhagana (')the Privy Council had held,
agreeing with the view taken by the Full Bench of
the Calcutta High Court that the words in s. 602 of
the Code of 1877 (Act X of 1877), in regard to extending time for giving security in appeal were directive
only and there was jurisdiction in the High Court to
grant extension of time for cogent reason. In other
words, the time of six months prescribed by the
(I) [1883] L.R. II I.A. 7 •
'·
'
'
J
•
1 S.C.R. SUPREME COURT REPORTS
647
statute could not be departed from without cogent
196'
reason. As a result of this decision under the provi- Sh
B-M h 1
d
.1 h
d"
IW
UX
0 • •
sions of 0. 45, r. 7, as they stoo
unt1 t e amen mg
v.
Act 26 of 1920 was passed, all the High Courts con- T"lsimanjari Dasi
sistently exercised their jurisdiction in the matter of
--
furnishing securities and extended time where they Gaj,ndrncadkar J.
were satisfied that there was a proper and valid reason
to do so.
The question which arises for our decision
is whether by the amendment made in ·1920 this position has been altered.
There can be no doubt that the object of the amendment was to expedite the final decision of the appeals
which were taken before the Privy Council, and so the
restrictive words have now been introduced whereby
the period prescribed by the first part of the rule cannot be extended beyond 150 days; but, does the use of
these restrictive words indicate that there is no jurisdiction in the High Courts to extend the period for a
sufficient cause? Having regard to the fact that even
before the amendment the period of six months had
been indicated it seems somewhat difficult to hold that
by restricting the period to 150 days by the use of the
restrictive words the Legislature had intended to take
away the pre-existing jurisdiction of the High Courts
to extend the period for a reasonable cause. The
jurisdiction to enlarge the period for a good cause
shown could not have been intended to be taken
away by implication merely by the use of the restrictive clause introduced in the amendment.
Besides, it is significant that even after the amendment there is no specific provision which provides for
the effect of failure to comply with 0. 45, r. 7. Rule 8
deals with oases where security has been furnished
and deposit made, and it provides that on the security
being furnished aud deposit made the Court shall
declare the appeal admitted, give notice thereof to the
respondent, transmit to the Supreme Court the record
as therein provided, and give to either party one or
more authenticated copies as specified.
There is no
rule which prescribes the consequence of non-compliance with the order made under r. 7.
Failure to make ,
this provision is not without significance because r. 11
648
SUPREME COURT REPORTS
[1962]
r96z
expressly provides for the effect of failure to comply
Sh
B--,, h 1 with the order made under r. 10. In other words
ew
uX.ir.toaa
'
v.
where the Court makes an order calling upon the
Tulsimanjari Dasi appellant to furnish within a time to be fixed by it
other and sufficient security, or to make within like
Gajendragadhar ]. time the required payment, and the appellant fails to
comply with the said order, r. 11 expressly provides
that on such failure of the appellant the proceeding
shall be stayed a.nd the appeal shall not proceed
without an order in that behalf of the Supreme Court
and in the meantime execution of the decree appealed
from shall not be stayed. It would thus be seen
that where the Legislature intended that failure to
comply with a specific order should lead to the consequence of a specific result it has made an appropriate provision in that behalf, and so failure to make
any such provision in regard to the consequence of
non-compliance with the order made under r. 7 may
suggest that the jurisdiction of the Court to extend
time was not intended to be taken away. Since it
is open to the Court to extend time the Legislature
may have thought that it should be left to the discretion of the Court to decide whether the failure to comply with its order under r. 7 should be condoned and
the period extended for furnishing security, or whether
the default should not be condoned and the certificate
should therefore be cancelled. In our opinion, therefore, reading 0. 45, r. 7, as amended along with the
other relevant provisions of the said Order it would be
difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the
said rule. High Courts had jurisdiction to extend time
prior to the amendment of 1920 and the amendment
of 1920 has made no difference in that behalf.
There is another statutory provision which leads to
the same conclusion, and that is 0. XII, r. 3, of the
Supreme Court Rules framed by this Court in exercise
of its rule-making powers under Art. 145 of the Constitution. Rule 3 reads thus:
"Where an appellant, having obtained a certificate from the High Court, fails to furnish the
security or make the deposit required,, that Court
•
·-
•-lf>-
I
I S.C.R.
SUPREME COURT REPORTS
649
may, on its own motion or on application in that
r96r
behalf made by the r~spoi;ident, cancel the certificate Shew u-:::Mohata
and may give such drrect10ns as to the costs of the
v.
appeal and the security entered into by the appel- Tulsimanjari Dasi
!ant as it shall think fit or make such further or
other order as the justice of the case requires."
Gajendragadkar ].
This rule corresponds exactly to r. 9 of the Privy
Council Rules. On a fair construction of this rule there
appears to be no doubt that if a party having obtained
a certificate from the High Court fails to furnish
security or to make the required deposit it is open
to the High Court to adopt either of two courses; it
may cancel the certificate and may give directions as
to the costs of the appeal and the security entered into
by the appellant or it may make such further or other
order as the justice of the case may require; and that
clearly suggests that the High Court has jurisdiction
to consider the question as to whether the justice of
the case requires that the certificate already granted
should not be cancelled and further time should be
given to the party to furnish the security or to make
the required deposit. The last clause of r. 3 refers to
such further or other order as the justice of the case
requires, and that must necessarily mean an order
other than, and different from, the order cancelling
the certificate. It is true that the intention behind
this rule might have been differently and better
expressed but the object of the rule is plain and
unambiguous and its construction presents no difficulty
whatever. Failure to furnish the security or to make
the deposit in time does not inevitably and in every
case lead to the cancellation of the certificate. Despite
the said failure some further or other order according
to the justice of the case may still be passed by the
Court in its discretion, and that, in our opinion, must
mean an order condoning the default and granting
further time to furnish the security or to make the
required deposit. If this be the true position about
the effect of O. XII, r. 3, of the Supreme Court Rules
it would follow that the High Courts would have
> jurisdiction to extend time for furnishing security even
82
650
SUPREME COURT REPORTS
[1962]
r96 r
if r. 7 of O. 45 after its amendment in 1920 had ta.ken
Sh
B-M
away the said jurisdiction. Section 112 of the Code
ew
u;
ohata expressly provides that nothing contained in the Code
Tulsimanjari Dasi shall be deemed, inter alia, to interfere with any rules
made by the Supreme Court, and for the time being in
Gajendrngadkar J. force, for the presentation of appeals to that Court or
their conduct before that Court. Therefore, if 0. XII,
r. 3, expressly recognises and gives jurisdiction to the
High Courts to extend the time for furnishing the
security or to make the deposit in a proper case that
provision would not be interfered with by r. 7 of 0. 45.
That is how, apart from the provisions of r. 7 of 0. 45,
we reach the conclusion that the Calcutta High Court
had jurisdiction to extend time for furnishing the
security in the present case. However, as we have
already held the amendment of r. 7 of 0. 45 does not
really take away the pre-existing jurisdiction of the
High Courts to extend time, and so there is complete
harmony between the said rule and 0. XII, r. 3, of
the Supreme Court Rules.
On this question there appears to be consensus of
judicial opinion in the decisions of all the High Courts
in India except the Calcutta High Court which for
some years past has struck a note of dissent. It is
unnecessary to deal with a catena of decisions on
which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them.
It appears that in some High Courts the present question was referred to a ]'ull Bench and the decisions of
the Full Bench have negatived the view which appears
to have been taken by the Division Benches in the
said High Courts on the earlier occasions that the High
Courts had no jurisdiction to extend time (Vide:
Nilkanth Balwant Natu & Ors. v. Shri Satchidanand
Vidya N arsinha Bharati & Ors. (1 ) (J<'ull Bench); Bishnath Singh & Ors. v. Balwant Rao Naik Kalia & Ors. (2)
(J<'ull Bench); Gulam Hussain v. JYiansurbeg & Ors. (
3
)
(Full Bench); Lachmeshwar Prasad Shukul v. Girdhari
Lal Chaudhuri(') (]'ull Bench); Ghulam Rasul v.
· Ghulam Qutabud-din (') (Full Bench); Thota Pilchaiah
(1) (1927) I.L.R. 51 Boru. 430.
(2) I.L.R. [1939] All. 549·
(3) I.L.R. (1952) Nag. 406.
(4) (1940) I.L.R. 19 Pat. 123.
(S) (1942) I.L.R. 23 Lah. 447.
_.
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I S.C.R.
SUPREME COURT REPORTS
651
& Ors. v. M. Vedanta Narasimhacharyulu & Ors. (1)
'961
(Full Bench); and Ismail Piperdi v. Momin Bi Bi & Shew B-:;Mohata
Ors. (2) (Full Bench).
v.
Even in Calcutta it was held by the Calcutta High Tulsimanja'i Dasi
Court by a Full Bench in Roy Jotindranath Chowdhury
. --
& Ors. v. Rai Prasanna Kumar Banerjee Bahadur & Ga1eudragadkar J.
Ors. (3 ) that the High Court had power to extend time
as provided by s. 602 of the Code for depositing the
estimated cost of translating, transcribing, indexing
and transmitting to the Privy Council the records of the
case under appeal, but it was added that the Court
should not extend time without some cogent reason. In
support of this conclusion the High Court relied upon
the decision of the Privy Council in the case of Burjore
and Bhawani Per shad('). The same view was expressed
by the said High Court in Harendra Lal Chaudhry v.
Sm. Hari Dasi Debei (') where it was held that High
Court had power to extend the time for depositing
costs in Court but it ought not to do so without some
cogent reasons. In reaching this conclusion the Court
followed its earlier decision in the cas.e of Roy Jyotindranath Chowdhury (3). It, however, appears that in
Raj Kumar Govind Narayan Singh & Ors. v. Sham/,al
Singh & Ors.(') Chief Justice Rankin and Ghose, J.,
took a contrary view and held that there was no
jurisdiction to extend time for furnishing the security
under 0. 45, r. 7, as amended in 1920.
With respect,
the question does not appear to have been fully
argued before the Court, for the judgment does not
discuss the question of construing the relevant provisions of 0. 45, r. 7 or of r. 9, of the Privy Council
Rules, and indeed the earlier decisions of the Court on
that point do not appear to have been cited either.
Even so, this decision was subsequently followed and
that led to a consistent practice in the said High Court
on which the learned judges have relied in rejecting
the appellant's application for extension of time in the
present case. In this connection it may be relevant
to note that when this question was raised before the
(r) I.L.R. ['956] Andhra 55.
(3) (1906) If c W.N. 1104.
(5) (r909) 14 C.W.N. 4'°
(2) [1939] Rangoon L.R. 668.
(4) (r883) LR. rt LA. 7.
(6) (1934) 39 C.W.N. 651.
652
SUPREME COURT REPORTS
(1962]
'96'
Calcutta High Court again in Akimuddin Chowdhury
Sh
B--M h
v. Fateh Chand Mahesri & Ors. (1)
Chief Justice
ew
":. '
0 ata Derbyshire was referred to the Full Bench decision of
Tulsimanja,; Dasi the Bombay High Court in Nilkanth Balwant Natu (')
in support of the argument that there was a jurisdicGaJend.agadk"' J. tion to extend time for furnishing security, but he
observed that though he had great respect for the said
:E'ull Bench decision there was a contrary decision of
the Calcutta High Court in the case of Raj K urnar
Govind Narayan Singh(') and so he was bound to
follow the said decision and conform to the practice
prevailing in the Calcutta High Court.
In our
opinion, the practice prevailing in the Calcutta High
Court since the decision of Chief Justice Rankin in the
case of Raj Kumar Govind Narayan Singh(') is not
justified either by the provisions of 0. 45, r. 7, of the
Code or 0. XII, r. 3, of the Supreme Court Rules. We
must accordingly hold that the High Court was in
error in holding that it had no jurisdiction to entertain
the application made by the appellants to extend time
for furnishing the security. On the view which it took
the High Court naturally did not examine the merits
of the appellants' case that there were sufficient and
cogent reasons for condoning the delay.
We would therefore allow the appeal, set aside the
order passed by the High Court and remit the matter
to that Court for disposal of the appellants' application in accordance with law. In the circumstances of
this case there would be no order as to costs.
Appeal allowed.
(r) [1939] 44 C.W.N. 920.
(2) [1927] I.L.R. 51 Bom. 430.
(3) [r934] 39 C.W.N. 65t.