The Judgment of the Court was as follows:—
Derbyshire, C.J:— In this matter the applicant seeks to appeal against the decision of a Division Bench of this Court consisting of Mr. Justice Mitter and Mr. Justice Akram dated July 24th, 1939, in Appeals from Original Orders Nos. 1 and 2 of 1939.
The Appellant applied to this Bench for leave to appeal to His Majesty in Council against the decision just mentioned and on April 22nd, 1940, this Bench granted that leave.
Under Or. 45, r. 7 of the Code of Civil Procedure where a certificate of fitness to appeal 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. The security to be furnished in this case was rupees four thousand. That was, under the rule, due to be furnished on June 3rd, 1940.
On June 3rd, 1940, a petition to extend the time for putting in the security deposit by a month or more was made on behalf of the applicant. The petition states that the time for deposit of the security of rupees four thousand expired on that date, that is June 3rd, and that the applicant
“has not been able to recure and deposit the said sum in Court within this date as many members of your petitioner's family have been attacked with small pox resulting in the death of your petitioner's only grandson on 1st June 1940. The members bare been suffering from the attack of small pox for a month last and your petitioner could not go out and arrange for the money due to that.”
That petition is verified not by the applicant or by his son or any member of his family but by one Jamiruddin Ahmed, who is said to be a jotedar by profession. He says
“I am a relation of the petitioner and that the facts stated are true to my knowledge.”
It is to be noted that to day is June 17th, exactly a fortnight after the deposit had to be furnished and even now the deposit, nor any part of it, has been made in Court. I have some difficulty in accepting the story told on behalf of the applicant and, for my part, I do not accept it. The applicant has not sworn the affidavit himself nor has any member of his family done so. The affidavit is sworn by someone who simply describes himself as a relation. That will not do.
A point has been taken that it is not within the competence of this Bench to extend the time for furnishing the security. We have been referred to a case decided by a Full Bench of the Bombay High Court [Nilkanth Balwant Natu v. Shri Satchidanand Vidya Norsinha Bharati] where it was held that the Court can, under Or. 45, r. 7 of the Code of Civil Procedure, 1908, read with Rule 9 of the Privy Council Rules, 1920, enlarge the time for furnishing security and making the deposit, beyond the period prescribed by Or. 45, r. 7. I have great respect for the Full Bench decision of the Bombay High Court but there is a decision [Raj Kumar Govind Narain Singh v. Shamlal Sing] of a Bench of this Court consisting of Sir George Rankin and Mr. Justice C.C Ghose where it was held that the High Court has no jurisdiction to extend the time for furnishing security by an Appellant to the Privy Council beyond the maximum provided for in Or. 45, r. 7, that is to say, ninety days from the date of the decree plus sixty days or six weeks from the date of the certificate, whichever is later.
In the particular case cited the time expired on November 8th, 1926. The Appellants filed an application on November 10th which was dealt with by the Registrar of this Court on November 12th. The Registrar purported to give them a week's time and on November 17th, the deposit was made.
The Respondents moved the Court to set aside the order receiving the deposit and Sir George Rankin stated in his judgment
“the only order which it is open to us to make id that the certificate for the admission of the appeal dated the 2nd August, 1926, should be cancelled. The Appellants' security will be treated as though it had not been deposited for the purpose; that is to say, the Appellants can have it back.”
That case goes a long way since it treats as null and void the deposit which the Registrar had allowed to be made. Sir George Rankin at page 652 of the report says:
“It is however quite dear that what the Court is prohibited from doing the Registrar cannot do and the object of r. 7 was to put a limit definitely, finally and completely upon the amount of extension that the High Court could grant in the matter of these appeals to the Privy Council.”
Later he says:
“It does not seem to me possible to maintain that the Court in its discretion under r. 9 of the Order (i.e, the Order of His Majesty in Council), made on the 9th day of February, 1920, could refuse the application made by the Respondents.”
The application in that case was made by the Respondents to cancel the certificate. That case has been followed by Sir George Rankin and Mr. Justice Manmatha Nath Mukerji in Privy Council Appeal No. 13 of 1930, decided on February 23rd, 1931, where Sir George Rankin said:
“This is an application for extension of time for furnishing paperbook costs and security within rule 7, Order 45, C.C.P It appears that the decree complained of is dated the 18th December, 1929 and the date of presentation of this application is more than 90 days plus 60 days from that date. The certificate that the case is a fit one to be taken on appeal is dated the 7th January, 1931 and we are now more than six weeks from that date in these circumstances, as this Court has held on more than one occasion, it is not within the power of this Court having regard to the express terms of rule 7, Order 45, C.P.C, as it now stands to give any extension of time. The application must be refused….”
For my part I feel bound to follow the decisions of Sir George Rankin in the cases I have mentioned.
The result is that this application for extension of time to furnish the security must be dismissed and for the reasons I have given.
The certificate of fitness will be cancelled and the Appellant to England will pay the costs of this application—the hearing fee being assessed at two gold mohurs.
Mukherjea, J.:— I agree.
C.C