Mt. Bibi Nabi Zohra v. Baijnath Goenka .

1. The applicant in this case is Mt. Bibi Nabi Zohra. Her petition of appeal to His Majesty in Council was filed on 31st October 1917. Thereafter a question arose as to the amount or value of the subject-matter in dispute, and on 5th December, 1917 the matter was referred to the trial Court to determine such amount or value and report thereon. On 16th January, 1918 the Court reported that the amount of the subject-matter in dispute was Rupees 8,898-14-0 or less. A petition in objection to that report was subsequently filed by the applicant. On 23rd July, 1918 before the objection to the report was heard, the applicant filed a petition praying that this appeal numbered 65 of 1917, and Appeal No. 75 of 1917, which arose out of the same judgment and involved substantially the same questions for determination, should be consolidated for purposes of pecuniary valuation. A similar report as to the amount or value in Appeal No. 75 had also been made, and it appearing that the total value of the two appeals amounted to over Rs. 10,000 this Court made an order, dated 30th July, 1918, consolidating the two appeals for purposes of pecuniary valuation, and granting a certificate that the consolidated appeal complied with the provisions of Section 110 of the CPC, and was a fit one for appeal to His Majesty in Council. The appellant in Appeal No. 65 in due course furnished the security required from her for the respondent's costs and deposited the amount estimated for printing and transmitting the record under O. 45, R. 7, but her oo-appellants in Appeal No. 75 failed to file the security required from them, and the appeal, so far as they were concerned, was stayed for default. The case now comes before us on the question whether, notwithstanding that a certificate has been granted to the effect that it fulfils the requirements of Section 110 of the CPC, the appeal should be allowed to proceed and be finally admitted, seeing that the subject-matter of the appeal no longer fulfils those requirements. The applicant relies upon O. 45, R. 8 which provides that

“where such security has been furnished and deposit made to the satisfaction of the Court the Court shall, inter alia, declare the appeal admitted.”

2. The learned Government Advocate, on her behalf, contends that the Court, having granted the certificate on grounds which at the time it was granted could not be impeached, all that remained to be done so far as the present appellant is concerned was to comply with the provisions of R. 7, O. 45; and, as this has been done, the Court is bound by R. 8 to admit the appeal. It is admitted that the Court has power to review, its own order, but only on grounds which would have been applicable at the time the order was made; and that, once the certificate is granted, the appellant has a sort of vested right of which no subsequent events can deprive her if the conditions imposed by R. 7 are fulfilled. Whatever merit that argument may have it is first necessary to see whether the conditions have, in fact, been complied with. It must be borne in mind that, apart from the assistance of the appellants in Appeal No. 75, this appeal never could have been launched at all, and, having invoked the appellant in Appeal No. 65 is necessarily dependent upon their co-operation to see that the rules are obeyed. The certificate relied on was to the effect that the consolidated appeal complied with the provisions of S. 110 and was a fit one for appeal to His Majesty in Council. Such an appeal no longer subsists. The certificate that a consolidated appeal complies with the section does not entitle the appellant to a final admission of an appeal which has ceased to bear that character. The applicant referred to in R. 7 is the appellant, and where there are two or more whose appeals must be consolidated before the conditions necessary for granting the application are fulfilled, I think the security required by R. 7 is the whole security in such a case and not a portion only of that which the appellants together have to furnish. In the present case that security has not been furnished within the meaning of R. 8, and the Court in such a case cannot admit the appeal. It may be unfortunate for the present appellant that through no fault of hers her partners in litigation have failed her at the eleventh hour, but this is one of the risks she bears as the price of their assistance. To decide otherwise would, I think, be contrary to the spirit and meaning of the rules. It would open the door so as to admit appeals in many cases where the provisions of S. 110 as to value were not in fact complied with, if the only requisite necessary to surmount the obstacle presented by that section were the temporary assistance of a co-appellant who could retire when no longer needed.

3. The learned Government Advocate has asked us to allow him an opportunity of proceeding with his objection to the report of the Subordinate Judge as to the value of the subject-matter of his appeal, which was not pressed after the consolidation order made that course unnecessary.

4. I think in the circumstances which have arisen the application is reasonable. The order of the Court will be that this appeal be stayed save in so far as may be necessary to determine the applicant's objection to the report of the Subordinate Judge as to the value of the subject-matter of the appeal. On the determination of that matter let the case come before the Bench for further orders. The applicant will bear the costs of the present application.

V.S/R.K

5. Appeal stayed.