Law: Civil Procedure Code (V of 1908)

Section: O.XLI,rr.10(1),(2),5,O.XXV,OrderXLI,r.10

Civil Procedure Code (V of 1908) 0. XLI, rr. 10(1), (2) & 5 & O. XXV Security for costs Order XLI, r. 10 Deals with security for costs and not with security for payment of decretal amount Order to furnish security for decretal amount Could be passed only when stay of execution of decree prayed for. The object of rule 10 of order XLI (as also of Order XXV. C. P. C. which apples to surta), 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 ) of 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 ho 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 decretal amount. It is only when an application for stay of execution of the decree is made, that the Court may order the 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. Afzali Begum v. Lala Kunhaya Lal A I R 1932 All. 511 and Abdul Shakoor v. Kay Khusru Bahman Ardeshediar and 6 others P L D 1970 Kar. 599 ref. THIS JUDGMENT DELIVERED BY: I. MAHMUD, JUSTICE:---.--- 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…

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