P L D 1977 Karachi 308 (PLP)

Abdul Karim Siddiqui for Respondent. Dates of hearing : 29th November and 6th December 1976. This Revision Application is directed against the orders of the Additional District Judge, Karachi, dated 13‑3‑1976 and 22‑5‑1976 dismissing the respondent's first appeal for failure to furnish security in the decretal amount including costs within the time per milted by the Court and by the second order declining to re‑admit the dismissed appeal.

2. Briefly, the facts are that the respondent Muhammad Yasin Khan, obtained a decree in Suit No. 2277 of 1969 against the applicant, Alim Khan, for declaration, possession and mesne profits. The applicant/judgment debtor filed a first appeal under section 96, C. P. C. against the said decree and also an application for stay of execution of the decree under Order XLI, rule 5, C. P. C. on which the learned Additional District Judge ordered notice with interim stay in the meanwhile. While the stay application was pending, the respondent moved an independent application praying for an order requiring the applicant judgment‑debtor to furnish security in the sum of Rs. 6467.50 being the decretal amount with costs awarded by the lower Court. This application was granted on 3‑12‑1975 and the applicant was ordered to furnish security in the said amount within 15 days from the date of the order. However, on the applicant's request, time was extended more than once until 24‑21976. But as the applicant failed to furnish the security within the extended time, the learned Judge passed the first mentioned impugned older dated 13‑3‑1976 rejecting the appeal under Order XLI, rule 10(2), C. P. C. The applicant then submitted an application for re‑admission of the appeal under Order XLI, rule 19, C. P. C. but it was dismissed by the second impugned order dated 22‑5‑1976. Being aggrieved thereby, the applicant has filed this Revision.

3. I have heard Mr. Mumtazuddin and Mr. Abdul Karim Siddiqui learned counsel for the parties. It seems to me that the rejection of the Appeal under Order XLI, rule 10(2), C. P. C. for failure to furnish the security for the decretal amount including costs, was misconceived. The object of rule 10 of Order XLI (as also of Order XXV, C. P. C. which applies to suits), is to provide protection to a successful decree‑holder (or to a defendant in a suit), as the case may be, from the difficulty in realising the costs which he might incur in defending the appeal of the suit. from an impecunious or poor appellant or plaintiff. The Court is, therefore, given a discretion under sub‑rule (1), rule 10 of Order XLI, C. P. C. to order the appellant to furnish security for costs of the appeal ; and the ordering of such security for costs is mandatory in two cases mentioned In the proviso to sub‑rule (1), namely, in case the appellant is not possessed of any sufficient immovable property within Pakistan other than the property (if any) to which the appeal relates, or in case be is resident out of Pakistan. By sub‑rule (2) thereof where the security is not furnished within such time as the Court has ordered, the Court shall reject the appeal. It will thus be observed that Order XLI, rule 10, C. P. C. deals with security for costs and not with the making of an order for furnishing security for payment of the decree amount. It is only when an application for stay of execution of the decree is made, that the Court may order the judgment‑debtor to furnish security for the decretal amount as a condition for the grant of the stay, under Order XLI, rule 5, C. P. C.

4. In this connection. Mr. Mumtazuddin referred to the following observations of the Full Bench of the Allahabad High Court in Mst. Afzali Begum v. Laid Kanhaya Lal (A I R 1932 All. 511). "There is no doubt that after the memorandum of appeal is admitted under Order XLI, rule 9 and even before the issue of notice to the respondent under rule 11, the appellate Court has discretion under Rule 10(1) to demand from the appellant security for the costs of the appeal or of the original suit or both. The rule goes on to provide that in certain cases such an order must of necessity be passed. But that discretion is confined to demanding security for the costs only and not for an order to deposit the whole of the decretal amount. It is only when an application for stay of proceedings of execution is made under rule 5 that the Court is given power to demand security for the due performance of such decree or order as ultimately be binding upon the appellant" He also cited Abdul Shakoor v. Kay Khusru Bahman Ardeshediar and 6 others (P L D 1970 Kar. 599). That case, however related to an appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959, in which it was observed that in an appeal against the order of a Rent Controller under section 15(1) of the Ordinance, the appellate authority may ask for security pending appeal i but on the failure of the appellant to furnish security, the appellate authority would not be competent to strike off the defence under section 13 (6) of the Ordinance and to dismiss the appeal. It was also observed that failure to furnish the security would only lead to vacation of any stay order granted by the appellate Court, but the appeal itself would remain unaffected.

5. Mr. Abdul Karim Siddiqui learned counsel for the respondent/ decree‑holder, submitted that the order dated 3‑12‑1975 directing the applicant to furnish security for the decretal amount which included costs, should be construed as an order requiring him to furnish security for costs of the appeal under rule 10(1) of Order XLI. C. P. C. I am not impressed by this submission. The order was in substance an order to furnish security for the decretal amount and, although costs was an item included in the decretal amount. it was only a miner amount of Rs. 765.50 in the total decretal amount of Rs.6467.50. Moreover, the respondent himself was asking for an order of the Court directing the applicant to furnish security in the decretal amount on the grounds, inter alia, mentioned in paragraph 4 of his supporting affidavit,, that the applicant was only a fuel wood merchant and bad no immovable property, and that in the event the Court upholds the decree passed by the trial Court, the decretal amount cannot be recovered from the applicant. It also appears from the order of the learned appellate Court endorsed on the respondent's application, that the discretion to order furnishing of security was exercised in the mistaken belief that the Court had jurisdiction under rule 10(1) of Order XLI. C. P. C. to order security for payment of the decretal amount.

6. While admitting the Revision Application to regular hearing, the Court ordered stay of the impugned order upon the applicant's furnishing security in terms of the earlier order by the first‑ appellate Court. The applicant has since deposited the full decretal amount Rs. 6467.50 in the High Court. The stay of operation of the impugned order thus stands confirmed.

7. For the foregoing reasons. I would allow this Revision Application with costs and rot aside the impugned orders. The appeal is re‑admitted and the case is remanded to the First Appellate Court for hearing the appeal of the applicant on merits. The R 8t P to be returned immediately to the appellate Court. Above are the reasons for the order announced in Court on 6‑12‑1976. S. A. H. Application allowed.