Mukherjea, J.:— This is an appeal from a judgment and order dismissing an application for setting aside an ex parte decree which was passed on 9th March, 1965. The notice of motion was taken out on 7th April, 1965, and made returnable on 20th April, 1965. On the returnable date, directions for affidavits were given. Thereafter, the application was heard and dismissed on May 10, 1965.

1. The application has been dismissed on grounds of limitation. It is not in dispute that the notice of motion and the petition were duly filed in the Registrar's office on 7th April. If the application is treated as having been made on 7th April, that is to say, on the day the notice of motion and the petition were filed in the Registrar's office, the application is not barred by limitation but if the application is treated as having been made on 20th April when the Court was moved, the application must be held to be barred having regard to article 123 of the Limitation Act, 1963 which governs the application.

2. On a consideration of section 3(2)(c) of the Limitation Act, 1963 and the relevant Rules of the High Court, Original Side, the learned Judge has held that the application was made not on 7th April but on 20th April when the Court was moved. He has accepted the contention of the respondent that by the notice of motion, notice was given that the application would be made on 20th April and, therefore, no application was made on 7th April and that Chapter XX of the Original Side Rules makes a distinction between the making of an application and the filing of notice of motion and affidavits. The learned Judge has relied on the Bench decision in (1) Sohonlal Nagarmull v. Manicklal Seal, 58 CWN 313, a decision given with reference to the Indian Limitation Act, 1908 where Chakrabarti, C.J held that to take out a notice of motion is not to make an application. The learned Judge held that filing of the notice of motion and the affidavits in support thereof, does not constitute presentation of the application to the proper officer of the Court within the meaning of section 3(2)(c) of the Limitation Act, 1963, and that the application is presented only when it is presented to the officer of the Court which actually hears the application. No application is presented to the officer of the Court because the officer of the Court with whom the petition and the notice are filed does not deal with the application which the Court alone does. section 3(2)(c) of the Limitation Act, 1963, the provisions of which are altogether new, provides as follows:

“An application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.”

3. It has to be ascertained, in the context of the section, what is to be understood by presentation of an application and who is the proper officer of this High Court to whom the application has to be presented.

4. The Act itself does not say what is presentation of an application nor does the Act contain any provision for making Rules which might have given some indication in that behalf. The Original Side Rules also do not speak of presentation of an application or of any officer to whom an application has to be presented.

5. Rule 3 of Chapter XX of the Original Side Rules provides that except in certain cases all applications shall be made on motion after notice to the parties affected thereby. Rule 7 provides that the notice of motion together with the affidavit or affidavits of service and the affidavits in support thereof shall be filed in the Registrar's office immediately after service of the notice.

6. Whether filing of the application papers in the Registrar's office in compliance with Rule 7 amounts to presentation of the application to the proper officer of this Court within the meaning of section 3(2)(c) of the Limitation Act, 1963, is the question to be answered in this appeal. The word ‘present’, no doubt, as in every case, has to be understood in the context in which it appears. The Oxford English Dictionary says that ‘to present’ is ‘to bring into the presence of or ‘to deliver’. Semantically, there is hardly any distinction between ‘filing’ and ‘presenting’ or if there is, it is a distinction without a difference. Under Rule 7, the application papers have to be filed in the Registrar's office, which means that the papers have to be delivered to the Registrar's office. The Registrar is therefore the proper officer to whom the application has to be presented.

7. In this connection, reference may be usefully made to Order II, Rule 11 of the Original Side Rules of the Madras High Court (fourth edition) which is in pari materia with Rule 7 of Chapter XX of our Rules. The Madras Rule provides or rather provided, that ‘except in the case of urgency’, all pleadings, applications, affidavits, proceedings and documents shall be ‘presented’ to the Registrar, at any time during office hours. In case of urgency, any proceeding or document may be presented to a Judge. It is clear that ‘presentation to the Registrar’ under the Madras High Court Rules and ‘filing in the office of the Registrar’ under the Calcutta High Court Rules mean the same thing. In the Madras Rules ‘presentation to the Registrar’ appears to have been used in the sense of filing with the Registrar or in the office of the Registrar. Neither here nor at Madras the Registrar hears the application. Nevertheless the application is presented to the Registrar.

8. The question of what is to be understood by presentation of a petition came up for consideration in (2) Alston v. Alston, L.R 1946 Probate 203. Under the Matrimonial Causes Act 1937 Rule 2, a petitioner, in order to succeed, has to establish a period of 3 years of desertion immediately preceding the presentation of the petition. The Matrimonial Causes Rules provide that every matrimonial cause shall be commenced by filing a petition addressed to the High Court. There is no other provision in the Act or in the Rules for presentation of a petition. In that case, it transpired that the statutory period of three years had elapsed if the Court found that filing of the petition amounted to presentation of the petition. It was held by Willmer, J. that a petition is presented when it is filed in Court.

9. It is true that in Chap. XX of the Original Side Rules, a distinction has been made, and the distinction is real, between filing the application papers in the Registrar's office and making the application in Court. Be that as it may, in order to ascertain when an application is made for the purpose of limitation, the Limitation Act alone has to be considered because the Act itself provides that the application is made when the application is presented to the proper officer of the Court. As to who is the proper officer to whom the application has to be presented, guidance is to be found in the Original Side Rules and Rule 7 of Chap. XX provides the answer. The papers have to be filed in the Registrar's office or in other words, the application has to be presented to the Registrar.

10. Therefore, for the purpose of limitation, the application is made as soon as the application papers spoken of in Rule 7 are duly filed in the Registrar's office, although for other purposes the application is not made till the Court takes up the application.

11. There is no necessary conflict inherent in these, different points of view for different purposes because the rules of limitation are after all, in the main, technical rules and the relevant section provides a technical aid to the litigant for saving the bar of limitation.

12. The term ‘proper officer of the High Court’ cannot and does not mean the High Court Judge, nor does it mean the officer of the Court which actually hears the application. Ordinarily, notice of motion, the petition and the affidavits are not filed with the officer of the Court which hears the application. They are filed in the Registrar's office and are brought to the Court which hears the application from the office or the department.

13. In that view of the matter and in view of Ch. XX, Rule 7 of the Original Side Rules, [an application by notice of motion is presented to the proper officer of our High Court within the meaning of section 3(2)(c) of the Limitation Act, 1963 when the notice of motion, the supporting affidavits and the affidavit of service are filed with the Registrar in compliance with Rule 7 of Chapter XX of the Original Side Rules. In exceptional circumstances, as for example, when an application is moved ex parte in Court and the application papers are filed with the officer of the Court which hears the application, that officer is the proper officer.]

14. In this connection, one may allude to the legislative history of the relevant provisions of the Limitation Act, 1963, and the Statement of Objects and Reasons. It is true that the Statement of Objects and Reasons is not admissible as an aid to construction of a statute, nevertheless as the Supreme Court has pointed out in (3) State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92 : 1954 SCA 65, and Commissioner of Income Tax v. Sodra Devi, AIR 1957 SC 832 reference may be made to the same for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsors of the Bill to introduce the same and the extent and urgency of the evil which they sought to remedy.

15. The Statement of Objects and Reasons declares that the Bill seeks to implement the third Report of the Law Commission on the Indian Limitation Act, 1908. In the Report, the Law Commission said:—

“There is some conflict of decisions between the High Courts as to when exactly time ceases to run in the case of applications by notice of motion. One view is that it stops when the application is filed and the other that it stops only when the notice of motion is taken up by the Court. This controversy may be set at rest, by fixing a definite time in this behalf. We think that the view more favourable to the applicant should be adopted and therefore, recommend that the time should cease to run on the date when the application is properly presented in Court. A suitable amendment on those lines may be effected.”

16. The Note on sub-clause (2) (c) of the Bill in the Statement of Objects and Reasons says:—

“Sub-clause (2) (c) sets at rest the conflict of decisions as to when exactly time ceases to run in the case of an application by notice of motion. It is now provided that the time ceases to run when notice of motion is made and not when the notice of motion is taken up by the Court— a view more favourable to the applicant.”

17. The evil which the sponsors of the Bill sought to remedy was the harsh ness of the technical rule that an application, although properly filed within the period of limitation, might, as it did hap pen so often, become barred by limitation, because the applicant did not move the Court merely for the purpose of saving limitation or because the matter was not reached in Court within the period of limitation. It was to mitigate the severity of this technical rule of limitation and to soften the rigour of procedure that the practice on the Original Side of having applications noted as made, developed. The Limitation Act, 1963, has now effectively disposed of this technical rule of limitation which has haunted the Original Side for years. In Sohonlall Nagarmull v. Manicklal Seal, (supra), Chakravartti, C.J, was cons trained to observe that the Indian Limitation Act, 1908 does not explain when an application is made. It speaks of making an application and not of filing or giving notice of one. To take out a notice of motion, is, therefore, not to make an application. Notice of motion is notice of the fact that the application will be made. section 3(2)(c) of the Limitation Act, 1963, which is now in force, does explain when an application by notice of motion is made. It is made when the application is presented to the proper officer of the High Court, or in other words, so far as this High Court is concerned, when the notice of motion, the supporting affidavits and the affidavit of service are filed in the office of the Registrar in compliance with the Rules of the Original Side. To hold otherwise, will be to make the section nugatory and defeat its object.

18. In view of section 3(2)(c) of the Limitation Act, 1963, the decision in Sohonlal Nagarmull v. Manicklal Seal, (supra), is no longer applicable to applications made by notice of motion on the Original Side.

19. It has been urged before us that the appeal is not maintainable inasmuch as no appeal has been preferred against the ex parte decree. The appeal is only against the order refusing to set aside the ex parte decree. We are of the view that there is no substance in this point. In this connection, reference, may be made to the judgment of B.B Ghose, J., sitting with Cammiade, J., in (5) Kasi Nath Ghosh v. Himat Ali Chaudhury, reported in AIR 1928 Calcutta 720, B.B Ghosh, J., observed as follows:— “An appeal is allowed against an order under Order 9, Rule 13, Civil Procedure Code, by Order 43. There is no provision in the Code which debars an appeal from such an order unless there is an appeal from the ex parte decree itself, and surely there is no basis for the argument that an appeal from the order is incompetent if there is no appeal from the final decree.”

20. These observations constitute a complete answer to the point against the maintainability of the appeal raised by learned counsel for the respondent.

21. In the result, this appeal is allowed and the order of the learned Judge is set aside. The application is now remanded to the proper Court for disposal on merits.

22. Costs of this appeal would abide by the final result of the application.

Sankar Prasad Mitra, J.:— I agree.

C.R.D