Order XLI Rule 10 CPC - Appellate Court May Require Security for Costs
Order XLI Rule 10 of the Code of Civil Procedure, 1908 empowers an appellate court to require an appellant to provide security for litigation costs. In specified cases involving an appellant residing outside India without sufficient immovable property in India, the requirement is mandatory.
What does Order XLI Rule 10 provide?
Rule 10(1) - Power to demand security
The appellate court may, at its discretion, require the appellant to furnish security for the costs of the appeal, the original suit, or both. The court may do so before the respondent is called upon to appear and answer, or subsequently on the respondent's application.
Proviso - Appellant residing outside India
The court must demand security where the appellant resides outside India and does not possess sufficient immovable property within India, apart from any property that is the subject of the appeal.
Rule 10(2) - Failure to furnish security
If the appellant does not furnish the security within the period fixed by the court, the court shall reject the appeal.
The above is an explanatory restatement. Consult the official consolidated statutory text for exact wording: Code of Civil Procedure, 1908 (India Code PDF).
Meaning of important legal terms
- Appellant: The party who files an appeal against a decree or appealable order.
- Respondent: The party against whom the appeal is brought.
- Security for costs: A court-approved assurance, such as a deposit or acceptable security instrument, to meet costs that may ultimately be ordered. The form and amount depend on the court's directions and applicable rules.
- Immovable property: Generally, property such as land or buildings; whether it is sufficient for this rule is a matter for the court.
- Rejection of appeal: The statutory consequence specified by Rule 10(2) when ordered security is not provided in time.
When may the appellate court order security?
Ordinarily, the power is discretionary. The appellate court may assess the circumstances, including whether a costs order could realistically be enforced and what security is appropriate. Rule 10(1) permits an order at an early stage or later on the respondent's application. The proviso creates a mandatory requirement where both stated conditions concerning residence and sufficient immovable property are met.
Living outside India alone does not establish the entire statutory test. The court must also consider the specified immovable-property condition. The property involved in the appeal is expressly excluded when assessing whether the appellant has other sufficient immovable property in India.
Practical procedure for security for costs
- Application or court consideration: The respondent may request security after being called upon to answer, or the court may consider security before that stage.
- Relevant material: The parties may place relevant facts concerning residence, property and potential costs before the court.
- Court order: If security is required, the court fixes the amount or form and the deadline for compliance, subject to applicable procedural rules.
- Compliance: The appellant furnishes the security in the manner directed by the court.
- Non-compliance: If the ordered security is not furnished within the allowed time, Rule 10(2) requires rejection of the appeal.
Illustrative examples
Example 1: An appellant lives outside India and has no sufficient immovable property in India other than the property in dispute. The proviso requires the appellate court to demand security for costs.
Example 2: An appellant resides in India. The respondent seeks security for costs. The court considers the application under its discretionary power; security is not automatic merely because the respondent requests it.
Example 3: The appellate court directs an appellant to provide security within a fixed period. If the appellant does not comply within that period, Rule 10(2) provides for rejection of the appeal.
Related CPC provisions
Section 35 CPC: Deals with the court's discretion concerning costs, subject to applicable law and rules. Order XXV Rule 1: Addresses security for costs in suits, rather than the specific appellate procedure governed by Order XLI Rule 10. Order XLI Rule 5: Governs stay of proceedings and execution during appeal; security under that rule serves a different purpose. Order XLI Rule 9: Concerns registration of the memorandum of appeal.
Read the CPC sections, orders and rules guide, Order XLI Rule 5 on stay, and Order XLI Rule 9 on registration of appeals.
Frequently asked questions
Is security for costs mandatory in every appeal?
No. It is ordinarily discretionary, but the proviso to Rule 10(1) requires security when the appellant resides outside India and lacks the specified sufficient immovable property in India.
Can security cover costs of the original suit?
Yes. The rule permits security for the costs of the appeal, the original suit, or both.
What happens if the appellant does not furnish security?
Under Rule 10(2), the appellate court shall reject the appeal if security is not furnished within the time ordered.
Does an appeal automatically stay execution of the decree?
No. Stay of execution is separately governed by Order XLI Rule 5 and requires a court order where applicable.
Official statutory reference
The Code of Civil Procedure, 1908 - official India Code text (PDF). Court-specific amendments and procedural rules should also be checked for the jurisdiction concerned.
This article provides general legal information and does not replace advice about a particular case.