Supreme Court Holds High Court Possesses Jurisdiction to Extend Time for Furnishing Security Under Order 45 Rule 7 CPC. Amendment by Act 26 of 1920 Did Not Take Away Pre-existing Discretionary Power and Order XII Rule 3 of Supreme Court Rules, 1950 Expressly Permits Further Orders as Justice Requires.

Civil appeal by special leave against an order of the Calcutta High Court cancelling a certificate granted for appeal to the Supreme Court on the ground that the High Court lacked jurisdiction to extend time for furnishing security.

Appellants sought to set aside the High Court order rejecting their application for extension of time and acceptance of the security deposit, and to obtain a declaration that the High Court had jurisdiction to extend time under Order 45 Rule 7 CPC.

Appellants failed to deposit the security amount and printing cost within the prescribed time due to circumstances beyond their control; their application for condonation of delay and acceptance of late tender was rejected by the High Court for want of jurisdiction.

Trial court decreed suit in favour of appellants on March 20, 1948; on appeal, Appeal No. 135 of 1948 was dismissed and Appeal No. 111 of 1948 was partly allowed, setting aside the decree for possession and mesne profits against respondent 3; High Court granted certificate of appeal on May 18, 1956, but subsequently cancelled it on July 6, 1956, holding it had no jurisdiction to extend time for security deposit.

Whether the Calcutta High Court had jurisdiction to extend time for furnishing security under Order 45 Rule 7 of the Code of Civil Procedure, 1908, after the amendment by Act 26 of 1920. Whether Order XII Rule 3 of the Supreme Court Rules, 1950, conferred jurisdiction on the High Court to extend time for furnishing security or to make any other order as justice of the case requires. Whether the pre-existing discretionary power of the High Court to extend time was taken away by implication by the restrictive words in the amended Rule 7.

Appellants argued that the High Court had jurisdiction to extend time as the pre-existing power was not taken away by the 1920 amendment; the amendment only limited the outer period but did not abolish discretion for sufficient cause. Appellants relied on Order XII Rule 3 of the Supreme Court Rules, 1950, which empowered the High Court to make such further or other order as justice of the case requires, including extension of time. Respondents relied on the uniform current of decisions of the Calcutta High Court holding that after the amendment, the court had no jurisdiction to extend time for depositing security. Respondents contended that the restrictive words in Rule 7 ('or such further period not exceeding sixty days') fixed a maximum limit beyond which no extension could be granted.

The jurisdiction of a High Court to extend time for furnishing security under Order 45 Rule 7 CPC was not taken away by the 1920 amendment; the amendment merely limited the outer period to 150 days from the date of decree but did not abrogate the discretionary power to enlarge time for sufficient cause. Order XII Rule 3 of the Supreme Court Rules, 1950, expressly empowers the High Court, on failure to furnish security, either to cancel the certificate or make such further or other order as justice of the case requires, which includes extension of time. The absence of a provision analogous to Rule 11 for consequences of non-compliance with Rule 7 indicates legislative intent to leave extension to the court's discretion. The Calcutta High Court's contrary decisions were erroneous.

The short question of law which arises in this appeal is whether the Calcutta High Court had jurisdiction to extend the time for furnishing security for costs of the respondents under Order 45, rule 7, of the Code of Civil Procedure. 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. 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. Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court may, on its own motion or on application in that behalf made by the respondent, cancel the certificate, and may give such directions as to the costs of the appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires.

The appellants instituted Suit No. 73 of 1944 in the First Additional Court of the Subordinate Judge, 24 Parganas, against six respondents for declaration of title and recovery of possession with mesne profits. The trial court decreed the suit on March 20, 1948. Two appeals were filed by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948). Appeal No. 135 of 1948 was dismissed, while Appeal No. 111 of 1948 was partly allowed, setting aside the decree for possession and mesne profits against respondent 3. The appellants applied for and obtained a certificate from the Calcutta High Court on May 18, 1956, to appeal to the Supreme Court, as the decree was one of reversal and the valuation exceeded the statutory limit under Article 133(1)(a) of the Constitution. The last date for deposit of security was June 29, 1956. The appellants failed to deposit on time and filed an application on July 4, 1956, praying for acceptance of the tendered amounts after condoning delay. The High Court rejected the application on July 6, 1956, holding it had no jurisdiction. The certificate was cancelled. The appellants then obtained special leave from the Supreme Court, resulting in Civil Appeal No. 34 of 1958.

• Code of Civil Procedure, 1908: Order 45 Rules 7, 8, 10, 11
• Supreme Court Rules, 1950: Order XII Rule 3
• Constitution of India: Article 133(1)(a), Article 145
• Code of Civil Procedure (Amendment) Act, 1920: