Patna High Court
Ramdeo Singh And Ors. vs Mukhan Singh And Ors. on 8 December, 1921
Equivalent citations: 74IND. CAS.330, AIR 1921 PATNA 509
ORDER
1. This second appeal was originally filed on the 25th November 1901 within time. The Memorandum of Appeal was accompanied by copies of the decree and the judgment of the lower Appellate Court The copy of the judgment of the rial(sic) Court was not filed as is required by Rule 6 of Chapter VII of the High Court Rules Accordingly the Memorandum of Appeal was returned It was filed on the oth(sic) November after the time for filing it had espired(sic) It was suggested that in accordance with the order passed m a Similar case in M.J.C. No.176 of 1981 on the 29th November 1921 by the learned Chief Justice and Mr. Justice Coutts he appeal is out of time and should be ejected.
2. The learned Vakil on behalf of the appellant says that the appeal filed on the 25th November 1921 was competent under Order XLI, Rule 1 which requires that only copy of the judgment on which the decree of the lower Appellate Court sought to be set aside is founded to be filed, and does not require the filing of the judgment of the Trial Court He further contends that the rule of this Court referred to above, No. 6, Chap. VII, cannot affect the rule of limitation and the non-compliance with that rule will not necessarily subject the appellant's appeal to be dismissed.
3. Reference was made to a Full Bench decision in the case of Narsingh Sahai v. Sheo Prasad 42 Ind. Cas. 855 : 40 A. 1 : 15 A.L.J. 835 (F.B.). but the question in the present case did not arise in that case except that the observation made at page 7* of the report might throw some light as to the power of the High Court to make rules so as to alter the Rules of Limitation prescribed by the Limitation Act
4. However the decision of the Full Bench of the Bombay High Court in the case of Chunilal Jethabhii v Barot Dahya-bhm Amulakh 32 B. 14 : 9 Bom. L.R. 1138. is on all fours with the present one a*id fully supports the contention of the learned Vakil for the appellant.
5. Rule 6, Chapter VII of this Court's Rules was based upon the old Code of Civil Procedure, Section 652 of that Code was held not to give power to the High Court to frame a rule modifiying any rule or mode as to computation of limitation prescribed expressly or by necessary implication in the Limitation Act and that the rules framed by the High Court must be consistent with the Code in other words the rule was held not to annul modify or add to Section 541 of the old Code requiring the appellant to file a copy of the judgment of the Trial Court failing which the presentation of the appeal would be deemed to be incompetent. The present Rule 1 of Order XLI has not made any change in regard to Section 652 of the old Code and, therefore will be governed by the above cited Bombay case No doubt under the present Code, Section 122 gives power to the High Court to make rules regulating their own procedure and the procedure of the Civil Courts subordinate to their superintendence and by such rules "to annul, alter or add to all or any of the rules of the First Schedule". Accordingly, this High Court has power to make rules under Section 122 so as to annul, alter or add to r. 1 of 0. XU of the First Schedule to the Code. Rule 6 of Chapter VII of this Court has not, however, been made under Section 122 for which a special provision has been made in rules 123 to 128. In fact, the rules under Section 122 in order to have the effect of varying the rules in the First Schedule to the Code must first have been considered and submitted by a Rule Committee appointed under Section 123. Section 154 says that before making an} rules under Section 122 the High Court shall take such report into consideration There fore there is a good deal of force in the contention of the learned vakil that Rule 6 of Chapter VII cannot apply to the present case.
6. An exactly similar rule in the Bombay High Court was construed in the said Full Bench case empowering the Registrar to refuse to admit an appeal unless it was accompanied by the judgment of the Trial Court but not to throw out the appeal as being time-barred.
7. The High Court Rule referred to was apparently framed under Section 130 of the Code and the Court Rules framed under that section relate to matters "other than procedure".
8. We do not think that the order in M.J.C. No. 176 of 1981 was intended to decide any quest on of limitation. We therefore, hold that the appeal is not out of time.