- Bookmark
- Share
- CaseIQ
Babu Lachmeshwar Prasad Shukul And Others v. Babu Girdhari Lal Chaudhuri And Others
Factual and Procedural Background
This Full Bench considered three separate applications by appellants in three Federal Court appeals seeking acceptance of deposits for printing costs and, where necessary, extension of time to make those deposits. Each appeal arose after the High Courts had delivered judgments and, in each case, the High Court certified that the matter involved a substantial question of law under Section 205(1) of the Government of India Act, 1935 — the sole ground of appeal in each matter. There was considerable delay in all three matters in making the required deposits; the deposits in all three were tendered after the expiry of 150 days from the date of the decree (i.e., long beyond the 90 days and the additional 60 days permitted by Order 45, Rule 7(1) of the Code of Civil Procedure as applied).
The principal procedural issue referred to the Full Bench was whether the Court possessed power to extend the time prescribed by the applicable rules for depositing printing costs in appeals to the Federal Court — and, if so, whether that power should be exercised in the specific circumstances of each of the three appeals (Federal Court Appeals Nos. 10, 14 and 17 of 1939). The Court also had to interpret the interaction between: (a) Order 45, Rule 7(1) of the Code of Civil Procedure (CPC); (b) the Federal Court Rules (in particular O. 9 of those Rules); and (c) the Order-in-Council of 9 February 1920 (para. 9), which governed procedure for appeals to His Majesty in Council (Privy Council).
Legal Issues Presented
- Whether this Court has power to extend the statutory time-limits fixed by O. 45, R. 7(1) of the Code of Civil Procedure for depositing printing costs in appeals to the Federal Court.
- If such power exists, whether the Court should exercise it in each of the three applications now before it (Federal Court Appeals Nos. 10, 14 and 17 of 1939) given the specific facts of those cases.
- How O. 45, R. 7(1) of the CPC, O. 9 of the Federal Court Rules and para. 9 of the Order-in-Council of 9 February 1920 (Privy Council Rules) interact — in particular, whether para. 9 of the Order-in-Council (which, for Privy Council appeals, permits cancellation of certificates or making other orders where deposits/security are not furnished) applies so as to allow extension of time in Federal Court appeals.
- Whether deposits tendered during or immediately after the Court's vacation should be treated as within time by operation of Section 4 of the Limitation Act, 1908 or Section 10 of the General Clauses Act, 1897.
Arguments of the Parties
Appellants' Arguments
- The appellants argued that the phrase “date of the decree” in O. 45, R. 7(1) (as applied) should be read differently when applied to Federal Court appeals — relying on the wording of O. 9, R. 2 of the Federal Court Rules which refers to “the date of the signing of the decree or order appealed from.”
- They contended that the time periods in O. 45, R. 7(1) are directory rather than mandatory and that, even if the rule prescribed 90 days with a further discretionary period of up to 60 days, the Court retains an inherent or equitable discretion to grant further time in proper cases.
- They relied on the Order-in-Council dated 9 February 1920 (para. 9), which, in the Privy Council context, permits a Court to cancel a certificate or “make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires” — arguing that the breadth of that wording contemplates power to extend time beyond the limits of O. 45, R. 7(1) and that, through O. 9 of the Federal Court Rules and the definition of “Code,” this power should apply to Federal Court appeals.
- In the factual applications: appellants in No. 14 alleged that serious illness (smallpox) and subsequent incapacity of the family head, and the inexperience and minority transition of his son, prevented timely deposit; appellants in No. 17 relied on confusion about vacation practice and an honest belief that deposits on the re-opening day would be accepted.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments opposing the applications.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For (as stated in the opinion) | Application by the Court (how the Full Bench used or treated the precedent) |
|---|---|---|
| 14 CWN 420 | Authority for the proposition that “the date of the decree” means the date when judgment was actually pronounced (the date which the decree bears). | Used to support the interpretation that the starting point for the 90-day period is the date the decree bears (judgment date), not the date of signing. |
| 7 Cal 547 (Privy Council decision) | Earlier Privy Council authority on the meaning of “date of the decree” (cited in connection with 14 CWN 420). | Referenced to corroborate the view that the decree's date is the judgment pronouncement date. |
| 10 Cal 557 | Held that the former wording “within six months” was directory (not mandatory) and that the Court could allow further time in exceptional cases. | Relied on when discussing the pre-1920 law and the change effected by the 1920 amendment (and in assessing how cautiously extensions should be granted). |
| 9 PLT 305 | Reported decision of a Bench of this Court (or High Court) that the Court had no power to extend time beyond the limits fixed by O. 45, R. 7. | Noted as one of the authorities that had held no power to extend beyond 60 days; the Full Bench considered these authorities in forming its view about the effect of para. 9 of the Order-in-Council. |
| AIR 1929 Pat 431 | Decision cited among those holding the Court has no power to extend time beyond the limits fixed by O. 45, R. 7. | Referred to as precedent reflecting the view that no extension beyond 60 days was permissible; distinguished in parts of the analysis concerning the Order-in-Council. |
| 39 CWN 651 | Calcutta High Court (Rankin, C.J. and Ghose, J.) held that O. 45, R. 7 and R. 9 of the Privy Council Rules did not give power to extend time beyond the limits in O. 45, R. 7. | Noted as part of the divergent judicial authority on whether Courts may extend time; contrasted with Full Bench decisions that gave a contrary view. |
| AIR 1935 Lah 733 | Lahore High Court decision supporting the view that no power exists to extend beyond the limits in O. 45, R. 7. | Noted as part of the cluster of authorities taking the negative view regarding extension beyond 60 days. |
| 51 Bom 430 | Bombay Full Bench held that the effect of para. 9 of the Order-in-Council, 1920 was to give Courts power, in proper cases, to extend the time beyond the limits fixed by the Code. | Adopted and endorsed by the Chief Justice in reasoning that para. 9 confers power to extend in Privy Council appeals and, via O. 9 R.1, to Federal Court appeals. |
| ILR (1938) Mad 1007 | Madras Full Bench decision that para. 9 of the Order-in-Council gave the power to extend time beyond O. 45, R. 7 limits. | Cited as supportive of the view that para. 9 allows extension in proper (exceptional) cases. |
| AIR 1939 All 299 | Allahabad Full Bench view that para. 9 permitted Courts to extend time beyond the Code limits; this decision overruled an earlier contrary Full Bench in that Court. | Relied upon as further support (together with Bombay and Madras Full Benches) for the proposition that para. 9 confers the power to extend time in Privy Council appeals and, by extension (per one judgment), in Federal Court appeals. |
| 55 All 432 | Earlier Allahabad Full Bench decision holding that R. 9 did not give discretion to extend time beyond O. 45, R. 7 (with one judge dissenting). | Mentioned to show the history of conflicting authority in the Allahabad High Court before it adopted the contrary view in AIR 1939 All 299. |
| 8 PLT 779 | A Division Bench decision holding that a deposit for printing costs may be made when the Court is not sitting but the office is open (i.e., deposit cannot be deemed to expire only when Court sits). | Referred to by the Court in discussion of deposits during vacation; used by one judge (Agarwala, J.) in analyzing whether deposits tendered during vacation were in time. |
| 2 Pat 264 | Taxing Judge decision addressing presentation during vacation; held that presentation to proper officer during vacation is valid and that a presentation on re-opening day is within time where limitation expired during vacation. | Used by Agarwala, J. to support the conclusion that, as regards deposits presented at reopening after vacation, Section 10 of the General Clauses Act may operate to make the deposit timely. |
| AIR 1927 Pat 332 | Cited among decisions representing the view that the Court has no power to extend time beyond the 60 days prescribed after the 1920 amendment. | Referred to as part of the body of authorities which had previously held the Court lacked power to extend beyond the statutory limit. |
| 44 All 216 | Listed among authorities taking the view that the Court could not extend time beyond O. 45, R. 7 limits. | Referred to for the existence of contrary judicial precedent on the issue. |
| 55 Mad 835 | Referenced as among earlier decisions aligning with the view that extension beyond 60 days was not permissible. | Referred to in summarizing the conflicting state of authority. |
| 4 Rang 265 | Listed among earlier cases indicating a view that time could not be extended beyond the fixed limit. | Referred to as part of the body of precedent showing divergent opinions on the Court's power to extend time. |
Court's Reasoning and Analysis
The Court's analysis proceeded along two principal strands: (A) legal interpretation of the relevant rules and orders and whether they confer power to extend the time for deposit beyond the statutory limits; and (B) application of any such power (or relevant principles of limitation/vacation) to the facts of each of the three appeals.
A. Interpretation of the rules and the effect of the Order-in-Council (majority view — Harries, C.J.)
- O. 45, R. 7(1) of the CPC prescribes that, where a certificate is granted, the applicant must deposit printing costs within 90 days from the date of the decree (or within a further period not exceeding 60 days that the Court may, upon cause shown, allow) or within six weeks from the date of the grant of certificate, whichever is later. The Chief Justice held that these words are mandatory in limiting the Court's discretionary power under that Rule: the Court can extend at most 60 days beyond the initial 90 days, and no power exists under the Rule itself to grant further time once the 60-day extension has elapsed.
- The Order-in-Council (9 February 1920), para. 9, applicable to appeals to His Majesty in Council, contains broad language that allows a Court, where an appellant fails to furnish security or make deposit, to cancel the certificate or to “make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires.” The Chief Justice read that wording as wide enough to permit Courts in Privy Council appeals to extend time beyond the limits fixed by O. 45, R. 7(1), because those Rules of the Judicial Committee would prevail over any inconsistent provisions of the CPC (Section 112 CPC principle).
- The Chief Justice further concluded that O. 9, R. 1 of the Federal Court Rules applies O. 45 of the CPC “as modified and adapted by the Government of India (Adaptation of Indian Laws) Order, 1937” and that the definition of “Code” contemplates the Code “as amended or modified by any Order-in-Council.” Because the 1920 Order-in-Council (para. 9) is a modification that affects the operation of O. 45 in the Privy Council context, it should similarly be treated as modifying O. 45 for Federal Court appeals under O. 9, R. 1 — thus conferring upon the Federal Court power, in proper cases, to extend time beyond the 60-day outer limit fixed by O. 45, R. 7(1).
- The Chief Justice acknowledged conflicting authority but expressly sided with Full Benches of Bombay, Madras and Allahabad that para. 9 of the Order-in-Council confers such power in proper and exceptional cases where “the justice of the case” requires it.
B. Alternative analysis and the vacation / limitation point (Agarwala, J.)
- Agarwala, J. agreed with the ultimate order but for distinct reasons. He concluded that the Order-in-Council of 1920 (including para. 9) does not apply to appeals to the Federal Court: in his view the Federal Court Rules purposely limited the adaptation (by specifically referring to the Government of India (Adaptation of Indian Laws) Order, 1937) and O. 9, R. 2's explicit wording (e.g., “ninety days from the date of the signing of the decree or order appealed from”) showed that the wider Order-in-Council should not be treated as incorporated by O. 9 R.1.
- Because Agarwala, J. held the Court had no general power to extend beyond 60 days under para. 9 in Federal Court appeals, he considered whether statutory rules about vacancies / vacations might operate to make the deposits in two of the appeals timely. He examined Section 4 of the Limitation Act, 1908 (which applies where the period expires on a day when the Court is closed) and Section 10 of the General Clauses Act, 1897 (which preserves validity for acts done on the next open day where the period expires when the court or office is closed).
- Agarwala, J. concluded that (i) Section 4 of the Limitation Act does not apply to the mere act of depositing printing costs because such furnishing of security or deposit is not an “application” within Section 4's meaning; but (ii) Section 10 of the General Clauses Act could apply to deposits where the Court is, for ordinary business, closed during vacation so that a deposit on the first day of re-opening may be treated as done in due time. He accepted authorities (including 2 Pat 264) supporting this approach and found that the office's conduct (serving estimates during vacation) and the real-world confusion about vacation practice justified treating the deposits in Appeals 14 and 17 as timely (or at least as entitling acceptance on reopening).
C. Application to the three appeals (common factual conclusions)
- All three deposits were ultimately tendered well beyond 150 days from the date of the decrees — i.e., after expiry of the 90-day period and the further 60-day period allowed under O. 45, R. 7(1).
- Chief Justice Harries (majority on the legal point about para. 9 applying) held that power exists (via the Order-in-Council) to extend time in Federal Court appeals in proper cases, but that such power is to be sparingly used and only where “justice of the case” (cogent reasons) requires it.
- Applying that discretionary standard: Harries, C.J. found no cogent reason in Federal Court Appeal No. 10 of 1939 (where delay was unexplained beyond a vague statement of difficulty raising the money for a modest sum of Rs. 253-3-0) and refused to extend time; by contrast, he found cogent reasons in Appeals Nos. 14 and 17 (serious illness of the family head, incapacity, inexperience of son, and real confusion about vacation practice) and ordered the deposits already tendered be accepted.
- Agarwala, J., although taking the opposite view on the legal question whether para. 9 applies to Federal Court appeals, reached the same practical outcome, concluding that appeals Nos. 14 and 17 were within time or should be treated as within time under Section 10 of the General Clauses Act because of vacation-related closure and the office/Court practice; he held No. 10 out of time and not entitled to deposit acceptance.
Holding and Implications
Holding (case-specific outcomes):
- Federal Court Appeal No. 10 of 1939: The application to extend time to deposit printing costs is refused; the deposit tendered late is not accepted. (Order dismissing the application.)
- Federal Court Appeal No. 14 of 1939: The Court extended time (or treated the tender as timely for the reasons given) and directed the office to accept the deposit tendered on 24 July 1939.
- Federal Court Appeal No. 17 of 1939: The Court directed the office to accept the deposit tendered on 24 July 1939 (on the grounds stated in the opinion).
Consequences and broader implications:
- The Full Bench addressed an important procedural issue: whether para. 9 of the Order-in-Council of 9 February 1920 (Privy Council Rules) effectively confers a Court power to extend the time for payment of printing costs beyond the rigid limits of O. 45, R. 7(1) of the CPC, and whether that power is available in Federal Court appeals through O. 9 of the Federal Court Rules. The Chief Justice concluded that such power exists and may be exercised in exceptional cases where justice requires; another learned Judge (Agarwala, J.) disagreed on that point but found alternative statutory grounds to reach the same disposition for two appeals.
- The practical effect as to the three present appeals is limited and specific: two late tenders were accepted and one was refused. The opinion therefore resolves the applications before the Court but contains divergent statutory and interpretive reasoning among the Judges as to whether the para. 9 Order-in-Council applies to Federal Court appeals.
- Because the judges differed on the underlying legal question (one holding that para. 9 does apply to Federal Court appeals via the adaptation and definition of “Code,” another holding it does not), the decision on the broader proposition is not wholly uniform. The Court’s actions in these appeals therefore have a direct operative effect on the applicants but reflect continuing judicial division on the wider legal issue of the Order-in-Council’s applicability to Federal Court procedure.
- No order as to costs of these applications was made.
Summary of concurrence: Fazl Ali, J. agreed with the proposed order; Agarwala, J. agreed with the result but provided separate reasoning which diverges on whether the Privy Council Order-in-Council (para. 9) applies to Federal Court appeals.
Harries, C.J:— These are three applications filed by the appellants in the three appeals praying that the amounts of printing costs in connexion with these three appeals to the Federal Court be accepted and, if necessary, time for depositing the same be extended. The facts of the three cases differ materially and will be considered later. There was however considerable delay in all three cases in making the necessary deposits, and the first point which has to be determined is whether this Court can extend the time fixed by law for depositing these printing costs. If the Court has no such power, then it matters little what the facts of any particular case may be if the deposit has not been made within the period stipulated. The three applications first came before a Bench of this Court, and having regard to the general importance of the question that Bench referred the matter to a larger Bench. These applications accordingly have been heard by this Full Bench. A right of appeal to the Federal Court is given by Section 205 of the Government of India Act, 1935. That Section is in these terms:
(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly.
(2) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, within the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave.
2. In all these cases certificates were given by this Court that the cases involved a substantial question of law as to the interpretation of the Government of India Act, and such is the sole ground of appeal in each case. The Federal Court have drafted rules governing the procedure to be followed in appeals to that Court. O. 9 of these rules makes O. 45 of the CPC, applicable to appeals to the Federal Court with certain modifications. O. 9 is in these terms:
1. Where a certificate has been given under Sec. 205(1) of the Act, the provisions of O. 45 of the Code, as modified and adapted by the Government of India (Adaptation of Indian Laws) Order, 1937, shall apply in relation to appeals to the Federal Court.
2. Subject to the provisions of Sections 4 and 12 of the Limitation Act, 1908, applications under R. 2 of the said Order 45 shall be presented within ninety days from the date of the signing of the decree or order appealed from.
3. The Government of India (Adaptation of Indian Laws) Order, 1937, adds a rule No. 17 to O. 45 of the CPC, and makes some other slight amendments to that order. This rule No. 17, which is added to O. 45 of the CPC, is in these terms:
Where a certificate has been given under Section 205(1) of the Government of India Act, 1935, the provisions of this Order shall apply in relation to appeals to the Federal Court as they apply in relation to appeals to His Majesty in Council and references in this Order to His Majesty in Council and to any Order of His Majesty in Council shall be construed as references to the Federal Court and the rules of the Federal Court:
Provided that (a) R. 3 of this Order shall have effect as if at the end of sub-r. (1) thereof there were inserted the words “apart from any question of law as to the Interpretation of the Government of India Act, 1935, or any Order in Council made thereunder; (b) where the only ground of appeal stated in the petition is that any question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder has been wrongly decided, the petition need not pray for such a certificate as is mentioned in R. 3, and the like proceedings shall be had thereon as if such a certificate had been given except that no security shall be required for the costs of the respondent.
4. The Government of India (Adaptation of Indian Laws) Order, 1937, makes only formal amendments to the wording of O. 45 R. 7 of the CPC, which deals with time for making deposits of printing costs. The material portion of that Rule reads as follows:
(1) Where the certificate is granted, the applicant shall, within ninety days or such farther period, not exceeding sixty days, as the Court may, upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date…. (b) deposit the amount required to defray the expense of translating, transcribing, indexing, and transmitting to His Majesty in Council a correct copy of the whole record of the salt….
5. The words “His Majesty in Council” must be read as Federal Court. In cases where the only ground of appeal taken is that a question of law on the interpretation of the Government of India Act has been wrongly decided the word “certificate” in relation to Federal Court appeals must mean the certificate granted under Section 205(1) of the Government of India Act. In such cases no certificate such as that contemplated by O. 45, R. 3 is necessary by reason of proviso (b) of R. 17 which has been added to O. 45 of the CPC by the Government of India (Adaptation of Indian Laws) Order, 1937. It will be seen from the terms of O. 45, R. 7 that printing costs in Privy Council appeals had to be deposited within 90 days of the date of the decree or within a farther period of 60 days if so allowed by the Court or within six weeks from the date of the certificate whichever was the later date. In all three cases now before the Court the money was tendered after the expiration of 150 days from the date of the decree and long after the expiration of six weeks from the date of certificate. It has been held repeatedly that “the date of the decree” in this Bale means the date when judgment was actually pronounced, because that latter date is the date which the decree bears: see, 14 CWN 4201 following a decision of their Lordships of the Privy Council in 7 Cal 547.2
6. It was contended by the applicants however that a different meaning should be given to the phrase “date of the decree” in this Rule as applicable to Federal Court appeals. O. 9, R. 2 of the Federal Court Rules deals with applications to this Court in Federal Court matters under O. 45, R. 2, that is applications similar to applications for leave to appeal to His Majesty in Council. In this Rule of the Federal Court Rules it is stated that such applications are to be made within 90 days from the date of the signing of the decree or order appealed from. It was therefore contended that the starting point from which time ran in such applications was the date when the decree was actually signed and not the date upon which the judgment was pronounced. There is a clear difference in the wording of O. 45, R. 7(1) of the CPC, and O. 9, R. 2 of the Federal Court Rules. The words in O. 45, R. 7 of the CPC, are however clear and it is not open to this Court to place any other construction upon them than that which has been placed by all the Courts in India in the past. The phrase “date of the decree” in O. 45, R. 7(1) of the CPC, means the date which the decree bears or the date upon which judgment was pronounced. Whether the words “date of signing of the decree” appearing in O. 9, R. 2 of the Federal Court Rules mean something different from the date of the decree is a difficult question; but the point does not arise in this case, and it is therefore unnecessary for me to offer any opinion upon the question. It is sufficient to say that the starting point of time in O. 45, R. 7 of the CPC, is undoubtedly the date which the decree bears and not the date when the decree was actually signed. As I have previously stated, in all these cases no money was tendered for printing costs within 90 days of the date of the decree, and no application was made in any of the cases to extend the time after the expiration of the 90 days. In fact, more than 60 days had elapsed after the expiration of the period of 90 days from the date of the judgments before any of these applications were made. In these circumstances, has the Court any power further to extend the time for the deposit of such printing costs?
7. It was contended on behalf of the applicants that the words “within 90 days or such further period not exceeding 60 days as the Court may upon cause shown allow from the date of the decree complained of” are directory and not mandatory. It is said that normally the deposit should be made within such period but the discretion of the Court is not limited, and the period could be extended in proper cases. O. 45, R. 7(1) of the CPC, was amended by Act 26 of 1920. Previous to the amendment the deposit for printing costs had to be made within six months from the date of the decree or within six weeks from the date of the grant of certificate whichever was the later date. By the amending Act of 1920 the words “within 90 days or such further period not exceeding 60 days as the Court may upon cause shown allow” were substituted for the words “within six months.” Their Lordships of the Privy Council in 10 Cal 5573 held that the words “within six months” were directory and not mandatory, and the Court could allow further time to deposit printing costs in exceptional cases where there were cogent reasons for so doing. It is argued that the amendment merely amounts to substituting words which are directory only for words which had been previously held to be only directory. In my view the meaning of O. 45, R. 7(1) of the CPC, as it now stands, is plain. An extension of time may be granted for deposit of printing charges after the expiry of 90 days upon cause being shown, but such extension of time cannot exceed 60 days, and if this further period of 60 days has elapsed, the Court has no power under the rule as it stands to grant further time. The words are, in my view, mandatory and limit the discretion of the Court. If the period of 90 days from the date of the decree has expired, the Court can at most grant a further extension of 60 days. Once that period has elapsed, the Court has no power as the rule stands to grant any further time.
8. The matter however does not rest there as far as appeals to His Majesty in Council are concerned. On 9th February 1920 the date upon which the amendment of O. 45, Rule 7(1), to which I have referred, took effect, His Majesty in Council issued an order rescinding previous rules, orders and regulations relating to appeals to His Majesty in Council and substituting for them other rules regulating the mode, form and time of such appeals. By the terms of this Order in Council of 9th February 1920 all Courts in India are bound to observe the rules therein contained. R. 9 of this Order in Council of 9th February 1920 reads as follows:
Where an appellant, having obtained a certificate for the admission of appeal, fails to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on an application in that behalf made by the respondent, cancel the certificate for the admission of the appeal, and may give such directions as to the costs of the appeal and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires.
9. In appeals to His Majesty in Council this Rule empowers Courts in India to cancel certificates already given in certain cases. It is to be observed that no such power was given to the Courts under O. 45 of the CPC. This rule does not compel Courts to cancel certificates in case of failure to make deposits of printing costs. The words used are “may cancel” and not “shall cancel.” In such cases if the Court does not cancel the certificate it may make such other order, as, in the opinion of the Court, the justice of the case requires. It was strongly urged on behalf of the applicants that this Rule gives the Court in Privy Council matters a power in proper cases to extend time before making a deposit of printing costs beyond the limits fixed by O. 45, R. 7(1) and in my view this contention is well-founded. R. 9 of the Privy Council Rules allows the Court either for cancel the certificate or make such other order as the justice of the case demands. It appears to me that the framers of this Rule contemplated that the justice of the case might require a further extension of time, and that being so the Court was expressly granted the power to grant such extension in spite of the mandatory words contained in O. 45, R. 7 of the CPC. The words used in R. 9 are sufficiently wide to give the Court power to extend time for making deposits of printing costs in proper cases beyond the limits fixed by O. 45, R. 7 of the CPC. It must be remembered that Section 112 of the CPC, contemplates a possible conflict between the rules contained in the Code and the rules framed by His Majesty in Council. That Section expressly enacts that nothing contained in the Code shall be deemed to Interfere with any rules made by the Judicial Committee of the Privy Council, and for the time being in force, for the presentation of appeals to His Majesty in Council, or their conduct before the said Judicial Committee. In other words, if there is a conflict between the rules contained in the Code and the rules issued by His Majesty in Council, the latter will prevail. In my view there, fore the Court has power in proper cases in appeals to His Majesty in Council to extend time for making deposits of printing costs beyond the limits fixed by the Code. There has been considerable conflict of judicial opinion upon this point. Benches of this Court in 9 PLT 3054 and AIR 1929 Pat 4315 have held that the Court has no power to extend time for the deposit of printing costs beyond the limits fixed by O. 45, R. 7 of the CPC. It would appear however that the Benches did not consider the effect of Rule 9 of the Order in Council dated 9th February 1920, and dealt with the matter as if it was entirely governed by the provisions of O. 45, R. 7 of the CPC. In 39 CWN 6516 Rankin, C.J and Ghose, J. of the Calcutta High Court held that O. 45, R. 7 of the CPC, and R. 9 of the Privy Council Rules, 1920, did not give the Court power to extend time beyond the limits defined in O. 45, R. 7 of the CPC, and a similar view was expressed by the Lahore High Court in AIR 1935 Lah 733.7 On the other hand, the High Courts of Bombay, Madras and Allahabad have taken a different view. In 51 Bom 4308 a Full Bench held that the effect of R. 9 of the Order in Council, 1920, was to give power to the Court in proper cases be extend the time beyond the limits fixed by the Code. A similar view was expressed by a Madras Full Bench in ILR (1938) Mad 10079 and by a Full Bench of five Judges of the Allahabad High Court in AIR 1939 All 299.10 This latter case overruled the earlier Full Bench case in 55 All 43211 in which it was held, Niamatullah, J. dissenting, that R. 9 of the Order in Council of 1920 gave the Court no discretion be extend time beyond the limits fixed by O. 45, R. 7 of the CPC. I respectfully agree with the views expressed by the learned Judges in the Bombay, Madras and Allahabad Full Bench cases, and I am of opinion that in Privy Council appeals this Court has power in proper cases to extend time for making deposit of printing costs beyond the limits fixed by O. 45 R. 7 of the CPC.
10. The next question be determined is whether this power is given to the Courts in proceedings relating be appeals be the Federal Court. As I have stated previously, O. 9, Rule 1 of the Federal Court Rules provides that the provisions of O. 46 of the Code, as modified and adapted by the Government of India (Adaptation of Indian Laws) Order, 1937, shall apply is relation to appeals to the Federal Court.
11. The word “Code” is defined in the Federal Court Rules in O. 1, R. 2. The definition is as follows:
In these rules, unless the context otherwise requires……. “Code” means the Code of Civil Procedure, 1908, as amended or modified by any Order in Council or by or under any Central Act.
12. Rule 9 of the Order in Council of 9th February 1920 does, in my view, modify O. 45, R. 7 of the CPC, because it empowers the Court in proper cases be grant further time be deposit printing costs, though such power is expressly confined within certain limits in O. 45, Rule 7. If O. 45, R. 7, as modified by R. 9 of the Order in Council of 9th February 1920 is to apply to Federal Court appeals, then this Court has power in proper cases to extend the time for depositing printing costs in Federal Court appeals. It has been contended, however, that O. 9, R. 1 of the Federal Court Rules only contemplates one modification of O. 45 of the Code, that is the modification made by the Government of India (Adaptation of Indian Laws) Order 1937, and that being so, it is urged that the context requires that the word “Code” appearing in O. 9, R. 1 of the Federal Court Rules should be read as the Code of Civil Procedure, 1908, and not as the Code of Civil Procedure, 1908, as amended or modified by any Order in Council. In short, it is urged that as one modification only is mentioned all other modifications of the Code previously made by Orders in Council must be disregarded. If other modifications of the Code were contemplated by the framers of the Federal Court Rules, it is contended that it would have been sufficient to say in O. 9, R. 1 that “the provisions of O. 45 of the Code shall apply in relation to appeals to Federal Court” as by the definition of the word “Code” means the Code of Civil Procedure, 1908, as amended or modified by any Order in Council which would include the Government of India (Adaptation of Indian Laws) Order, 1937.
13. In my view the word “Code” in O. 9 R. 1 of the Federal Court Rules must be given the meaning given to that word in the definition contained in the Rules. There is nothing in the terms of O. 9 R. 1 of the Federal Court Rules which demands that the word “Code” should be given any meaning other than the meaning given in the definition. In my judgment what O. 9 R. 1 of the Federal Court Rules means is that O. 45 of the CPC, as amended or modified by any Order in Council and in particular as modified and adapted by the Government of India (Adaptation of Indian Laws) Order, 1937, shall govern the procedure in Federal Court appeals. As O. 45, R. 7 of the CPC, has been modified by Order in Council of 9th February 1920, so as to give the Court power to extend time to make a deposit in Privy Council appeals, such power is also given to the Court in relation to Federal Court appeals by reason of O. 9 R. 1 of the Federal Court Rules. To hold other, wise would be to deprive an appellant to the Federal Court of a right which he undoubtedly has in connexion with appeals to His Majesty in Council. It is to be observed that R. 9 of Order in Council of 9th February 1920 only empowers the Court to extend time when the justice of the case requires it, and it is clear that this power should only be exercised in exceptional cases. In 10 Cal 557 a case on O. 45 R. 7 of the CPC, before the amendment of 1920, their Lordships of the Privy Council held that time should not be extended beyond six months unless there were cogent reasons for doing so, and this has been emphasized in the Full Bench cases of Bombay, Madras and Allahabad, to which I have referred. All the Courts which have held that a Court has power to extend the time to make a deposit in Privy Council appeals, have also held that such power should be exercised with great caution and only where there are cogent reasons for doing so. In short, it is only where the justice of the case demands that the Court should extend time that such extension should be given. It will be therefore necessary to consider the particular facts of each of these cases to see whether such cogent reasons exist which demand that the Court should exercise its discretion in favour of the appellants and extend time for making the deposit of printing costs.
14. Federal Court Appeal No. 10 of 1939.— The facts in the application in Federal Court Appeal No. 10 of 1939 can be shortly stated as follows: This Court delivered judgment on 19th December 1938, and granted a certificate that the case involved a substantial question of law as to the interpretation of the Government of India Act. On 13th March 1939 the decree of the High Court was actually signed and on 27th March 1939 the appellants made an application to this Court under O. 45, R. 2 of the CPC. On 12th April 1939 notice was served upon the appellants by this Court of the amount of the deposit necessary for printing costs. The appellants did not deposit the money, and on 31st July 1939 the office placed, the matter before a Bench for orders. On 1st September 1939 the appellants filed an application in this Court intimating that he was then in a position to pay the money and that time for acceptance of the same should be extended, and this is the application now before the Court. The date of the decree and certificate is 19th December 1938, and the applicants should have deposited this sum within 90 days of 19th December 1938. The 90 days expired on 28th March and no application was made to the Court to extend the time. The further period of sixty days expired on 27th May and no application of any kind was made until 1st September and no explanation has been given for the delay beyond a vague statement that there was difficulty in obtaining the money. The amount involved was Rs. 253-3-0 and in my view, there are no cogent reasons in this case why the Court should exercise its discretion and extend the time. There has been great delay and in my view, the application to extend time for making the deposit should be rejected.
15. Federal Court Appeal No. 14 of 1939.—In this case judgment of the High Court was delivered on 23rd January 1939, and a certificate given under Section 205(1) of the Government of India Act, 1935. On 13th March 1939, the decree was signed, and on 21st April 1939, the appellants filed a petition in this Court under O. 45, R. 2 of the CPC. On 11th May 1939, this appeal was consolidated with another appeal (Federal Court Appeal No. 13 of 1939) and an order was made apportioning the costs. On 11th May 1939, the office served an estimate of the printing costs upon the appellants and that estimate was for Rs. 93-3-0. On 24th July 1939, which was the opening day of the Court after the long vacation, this money was tendered but was refused by the Court as the tender was out of time. On 25th July 1939, the appellants filed this application praying for extension of time to deposit the money if such extension was necessary.
16. According to the appellants, appellant 1 contracted small-pox shortly after 11th May 1939, and was seriously ill for a considerable time. Appellant 2 who is the son of appellant 1, attained majority shortly before 11th May 1939, and it is said that he had to attend on his father and further that he was ignorant of matters connected with the limitation. Further it is said that after the attack of small, pox appellant 1 developed a scrotal tumour which incapacitated him for some time. For these reasons it is said that the appellants were unable be come to Patna and instruct lawyers to make the deposit before 24th July 1939; more than 150 (one hundred and fifty) days elapsed from the date of the decree, but, in my view, there are cogent reasons in this case why time should be extended. The facts mentioned by the appellants have been verified by affidavit, and it is be noted that these facts are not contradicted by the respondents. If appellant 1 who was the karta of the family was incapacitated by small-pox, then there was good reason why the money was not paid within the period allowed by law. There seems to be no reason to doubt that appellant 2 was too in experienced to take any steps to make the deposit or to apply for an extension of time. For these reasons I would extend the time for making the deposit and direct that the money tendered on 24th July 1939, be accepted.
17. Federal Court Appeal No. 17 of 1939.—In this case the judgment of the High Court was delivered on 17th January 1939, and a certificate given under Section 205(1) of the Government of India Act, 1935. The decree was signed on 13th February 1939, and on 11th May 1939, the appellants filed a petition under O. 45, R. 2 of the CPC. The High Court vacation was from 12th May 1939 to 23rd July 1939. On 29th May 1939, notice of the amount of printing costs, namely Rs. 210, was served upon the appellants, and on 24th July 1939, (that is, on the opening day of the Court after the vacation) the money was tendered and accepted by the learned Registrar subject to any orders passed by a Bench of the Court. One hundred and fifty days expired on 16th June 1939, that is during the vacation, and it was urged on behalf of the appellants that as the Court was closed they could not make a deposit until the opening day of the Court.
18. In my judgment this Court is not closed during the vacation, and the money can be deposited and, if tendered, will be accepted. It will be observed that the notice of the amount of printing costs was actually sent by the office on 29th May 1939, and that was during the vacation. It has been expressly decided in this Court in 8 PLT 77912 that a deposit for printing costs may be made when the Court is not sitting but when the office is open. I am satisfied however that there has been considerable misunderstanding as to what business the office of this Court transacts during the vacation. In 2 Pat 264,13 the question arose as to whether appeals could be filed during the vacation, and certain correspondence is referred to in that report from which it is clear that the position with regard be this office during the vacation was far from clear. I am satisfied that there is considerable confusion even today, as no orders have been issued as to what the Court will or will not do during the vacation. The appellants in this case state that they were under the impression that if the money was deposited on the opening day of the Court, namely 24th July 1939, it would be accepted as being within time. Such has been the view of a large number of litigants, and they are not entirely to blame for such a view. The matter has not been made clear in the past, and that being so I am quite prepared to believe that the appellants honestly believed that they could deposit this money on the opening day of the Court. This is not an ordinary case of ignorance of the law, and to a large extent the mistake committed by the applicants was due to the failure of the Court in making the position clear. That being so, I am prepared to hold that there are cogent reasons in this case for extending the time for making a deposit, and accordingly I would direct the office to accept the deposit which was tendered on 24th July 1939.
19. For the reasons which I have given, I would therefore refuse to extend the time in Federal Court Appeal No. 10 of 1939 and dismiss the application. I would however extend the time in Federal Court Appeals Nos. 14 and 17 of 1939 and direct the office to accept the money tendered. In all the circumstances, I would make no order as to costs of these applications.
Fazl Ali, J.:— I agree.
Agarwala, J.:— I agree to the order proposed. As however the reasons for my conclusion differ widely from those of my Lord the Chief Justice, I propose to state them in detail and to analyze the law bearing on the question at issue. The ordinary appellate jurisdiction of the Federal Court is described in Section 205 of the Government of India Act, 1935, and the Federal Legislature has been empowered to enlarge this jurisdiction by S. 206. S. 205(1) gives a right of appeal to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Act or any Order-in-Council made thereunder, and casts upon the High Court the duty to consider, in every case, whether or not such a question is involved, and of its own motion to give or withhold a certificate accordingly. Where a certificate is given, any party in the case may appeal to the Federal Court, (1) on the ground that any question as to the interpretation of the Government of India Act or of an Order-in-Council made thereunder has been wrongly decided; (2) on any ground on which that party could have appealed to His Majesty in Council if no such certificate has been given; and (3) with the leave of the Federal Court, on any other ground: [Sec. 205(2).]
20. By the Government of India (Adaptation of Indian Laws) Order, 1937, S. 111-A has been added to the Code and by it Ss. 109, 110 and 111 of the Code have been declared to apply to appeals to the Federal Court as they apply in relation to appeals to his Majesty in Council, provided that
(a) so much of the said Sections as delimits the cases in which an appeal will lie shall be construed as delimiting the cases in which an appeal will lie without the leave of the Federal Court otherwise than on the ground that a substantial question of law as to the interpretation of the said Act, or any Order-in-Council made thereunder, has been, wrongly decided:
(b) in determining under cl. (c) of S. 109 whether the case is a fit one for appeal, and, under S. 110, whether the appeal Involves a substantial-question of law any question as to the interpretation of the said Act, or any Order-in-Council made thereunder shall be left out of account.
21. As to the procedure in appeals to the Federal Court none of the provisions of the Code of Civil Procedure apply to any proceedings in the Federal Court unless expressly incorporated in the Rules of the Federal Court (O. 11, R. 5). The procedure in the Federal Court in relation to appeals from that Court to His Majesty in Council is prescribed by O. 32 of these Rules which applies the provisions of O. 45 of the Code, with certain modifications. So far as appeals from the High Courts to the Federal Court are concerned, O. 9, R. 1, provides:
Where a certificate has been given under S. 205(1) of the Act, the provisions of O. 45 of the Code, as modified and adopted by the Government of India (Adaptation of Indian Laws) Order, 1937, shall apply in relation to appeals to the Federal Court.
22. The only alteration in O. 45 of the Code effected by the Adaptation of Laws Order, so far as appeals to the Federal Court are concerned, is the addition of R. 17 which is in these terms:
17. Where a certificate has been given under Section 205(1) of the Government of India Act, 1935, the provisions of this Order (i.e O. 45 of the Code) shall apply in relation to appeals to the Federal Court as they apply in relation to appeals to His Majesty in Council and references in this Order to His Majesty in Council and to any Order of His Majesty in Council shall be construed as references to the Federal Court and the rules of the Federal Court.
Provided that:
(a) Rule 3 of this Order shall have effect as if at the end of sub-rule (1) thereof there were inserted the words apart from any question of law as to the interpretation of the Government of India Act, 1936, or any Order-in-Council made thereunder;
(b) where the only ground of appeal stated in the petition is that any question of law as to the interpretation of the Government of India Act, 1936, or any Order in-Council made thereunder has been wrongly decided, the petition need not pray for such a certificate as is mentioned in R. 3, and the like proceedings shall be had thereon as if such a certificate had been given except that no security shall be required for the costs of the respondent.
23. Rule 2 of O. 45 of the Code provides:
Whoever desires to appeal to His Majesty in Council shall apply by petition to the Court whose decree is complained of.
24. Rule 3(1) requires the petition to, (1) state the grounds of appeal, and (2) pray for a certificate either: (a) that as regards amount or value and nature, the case fulfils the requirements of S. 110, or (b) that it is otherwise a fit one for appeal to the Federal Court. R. 3(1) is to be read as if, at the end of it, there were inserted the Words “apart from any question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder:” [Proviso (a) to R. 17].
25. And where such a question is the only one to be raised in the appeal, (i) it is not necessary to pray for the certificate referred to in R. 3(1), and (ii) the appellant is not required to furnish security for the respondent's cost: [Proviso (b) to R. 17].
26. In cases in which the certificate mentioned in R. 3(1) is required, and is refused the petition for leave to appeal must be dismissed: [R. 6]. Where the certificate is granted the applicant is required to (i) furnish security and (ii) deposit the amount required for certain expenses: [R. 7(1)].
27. The security must be furnished and the deposit made within: (a) 90 days (or such further period, not exceeding 60 days, as the Court may upon cause, shewn allow) from the date of the decree complained of, (b) or within 6 weeks from the date of the grant of the certificate, whichever is the later date: [R. 7(1)].
28. A question has been raised “whether the date of the decree” referred to in R. 7(1) is the date on which the decree is actually signed or the date which the decree bears. The decrees in these present cases being decrees of the High Court to which the Code of Civil Procedure applies bear date the day on which the judgments were pronounced, as required by O. 20, R. 7 of the Code. It may be contended that if the Federal Court Rules had intended to provide that limitation should run from the date on which the decree was actually signed they would have said so, as in O. 9, R. 2 which deals with limitation for am application under O. 45, R. 2, and provides that the period shall run from the date of signing the decree or order appealed frore. In the present cases this point is not of any importance because whether the period of limitation for making the deposits required by R. 7(1) be reckoned from the date which the decrees bear or from the date on which they were signed, the deposits were beyond the period prescribed by that Rule. Nor are we concerned with the alternative period, viz. six weeks from the date of the certificate, as no certificate under R. 3(1) was required or granted. Section 205(1) of the Government of India Act, 1935, and O. 45, R. 17, proviso (b) of the Code, introduced by the Adaptation of Laws Order, having made it quite clear that when the only ground of appeal is that a question of law as to the interpretation of the Act or any Order in Council made thereunder has been wrongly decided, the aggrieved party, in such a case, has as unrestricted right of appeal which is not dependent on the grant of a certificate under O. 45, R. 3.
29. In all these three cases the only ground of appeal is that a question of law as to the interpretation of the Act has been wrongly decided, and in each case “the date of the decree” is 13th March 1938, which was the date on which judgment was delivered in each of the cases, although in the case of Appeal No. 10 the decree was actually signed on 19th December 1938, in the case of Appeal No. 14 on 23rd January 1939, and in the case of Appeal No. 17 cm 17th January 1939. In Appeal No. It the costs were not tendered until 1st September 1939; in No. 14 the deposit was tendered on 24th July 1939, but refused by the office; and in No. 17 the deposit was tendered on 24th July 1939, and accepters by the office subject to objection. In none of the cases, therefore, has the deposit been made within the 90 days prescribed by Rule 7(1), or even before the expiry of the further 60 days which the Court mighty upon cause shewn, have allowed. The Court's annual vacation was from 12th May to 22nd July 1939, and the 23rd was Sunday. During the vacation a Bench of two Judges was sitting to deal with criminal work and other work of an urgent nature. Throughout the vacation the office was open.
30. Two questions arise for decision: (1) Is this Court empowered to extend the period of limitation beyond the 60 days mentioned in R. 7(1)? and (2) In the circumstances of these cases should that power be exercised in favour of any of the present appellants? The view taken in this Court, so far as appeals to His Majesty in Council are concerned, is that this Court has no power to extend time beyond the period of sixty days prescribed by R. 7(1), AIR 1927 Pat 332, AIR 1929 Pat 431. The same view was taken in 44 All 216,14 AIR 1935 Lah 733, 55 Mad 83515 and 4 Rang 265.16 The contrary view was taken in 51 Bom 430 and in later Full Bench decisions of the Allahabad and Madras High Courts, AIR 1939 All 299 and ILR (1938) Mad 1007. Prior to 1920 the period prescribed by O. 45, R. 7, was six months. It was held by the High Courts that the Court had a discretion to extend this period. In 1920 the period was reduced to 90 days and the further period to which the Court might extend the time was expressly limited to 60 days. This Court and the Rangoon Court, and the Allahabad and Madras Courts in their earlier decisions, held in the cases referred to above, that it does not lie within the discretion of the Court to extend the time beyond 60 days. The Bombay High Court, and the High Courts of Allahabad and Madras in their later decisions, take the contrary view. This view is based on para. 9 of an Order-in-Council dated 9th February 1920, which is an Order “for regulating the mode, form and time of appeal to be made from the decisions of any Court of Judicature in India” to His Majesty in Council. It has been held that para. 9 of this Order confers upon the High Courts a discretion to extend the time prescribed by Order 45, R. 7(1) of the CPC, for the furnishing of security or deposit of costs in appeals to the Privy Council.
31. It is now contended that para. 9 also enables the High Courts to extend the time prescribed by O. 45 for the furnishing of security or deposit of costs in appeals to the Federal Court. This contention is founded on O. 9, R. 1, of the Rules of the Federal Court and the definition of “Code” in O. 1, R. 2 of those Rules. “Code” is there defined as “the Code of Civil Procedure, 1908, as amended or modified by any Order-in-Council or by or under any Central Act,” unless the context otherwise requires. O. 9, R. 1 of the Rules of the Federal Court applies to Civil appeals to that Court the provisions of “O. 45 of the Code as modified and adapted by the Government of India (Adaptation of Indian Laws) Order, 1937.” It is argued that the word “Code” in this Rule must be read in the sense assigned to it in O. 1, R. 2, and that when so read it includes para. 9 of the Order-in-Council dated 9th February 1920. The answer to that argument is that the Adaptation of Laws Order of 1937 is also an Order-in-Council and if all Orders, in Council were intended to be included in the word “Code” in O. 9, R. 1, the words “as modified and adapted by the Government of India (Adaptation of Indian Laws) Order, 1937” in that Rule are redundant. I am supported in my conclusion that the word “Code” in O. 9, R. 1 is not used in the wider sense in which it is defined in O. 1, R. 2, by the following consideration. If para. 9 of the Order-in-Council of 1920 applies to appeals to the Federal Court then the whole of that Order applies. Now para. 1 of that Order-in-Council provides:
Applications to the Court for leave to appeal to His Majesty in Council shall be made within 90 days of the decree or order to be appealed from, subject to Sections 4, 5 and 12 of the Limitation Act, 1908.
32. This must be compared with O. 9, R. 2 of the Rules of the Federal Court:
Subject to the provisions of Sections 4 and 12 of the Limitation Act, 1908, applications under R. 2 of the said O. 45 shall be presented within 90 days from the date of the signing of the decree or order appealed from.
33. If the Order-in-Council of 1920 applies to appeals to the Federal Court it was entirely unnecessary to state in O. 9, R. 2, that Rs. 4 and 12, Limitation Act, apply to applications to prefer such appeals, for these Sections would apply by reason of para. 1 of the Order-in-Council. Furthermore, while the Order-in-Council expressly applies Section 5 of the Limitation Act, to appeals to His Majesty in Council, O. 9, R. 2 of the Rules of the Federal Court deliberately omits any reference to that Section and also prescribes that the period of limitation shall be “ninety days from the date of the signing of the decree or order appealed from” and not, as provided in the Order-in-Council, “ninety days of the decree or order to be appealed from” which, by reason of O. 20, R. 7 of the Code, means ninety days from the date on which the judgment was pronounced. I would therefore hold that neither para. 9 nor any of the other paragraphs of the Order-in-Council of 1920 applies to appeals to the Federal Court and, consequently, that this Court has no power to extend the time prescribed by O. 45 of the Code in the case of appeals to the Federal Court.
34. It remains to consider the question whether, apart altogether from judicial discretion, a litigant has a right to an extension of the prescribed time. In this connexion Section 4 of the Limitation Act, 1908, and Section 10 of the General Clauses Act, 1897, require consideration. Section 4 of the Limitation Act, 1908, provides:
4. Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.
35. The furnishing of security or the depositing of costs is not, in my view, an “application”, which means, as I understand the word in this Section, an application to the Court to take some step which the Court is empowered to take only on being requested to do so, such as execute a decree, set aside an execution sale, etc. When making a deposit of costs the appellant does not move the Court to do anything. Furthermore, it is noticeable that although the Rules of the Federal Court provide that Section 4 of the Limitation Act, shall apply to the period of 90 days prescribed for an application under O. 45, R. 2 [see Rules of the Federal Court, O. 9, R. 2] they make no such provision with respect to the action to be taken under R. 7(1). S. 148 of the Code does not apply because the periods of 90 and 60 days in O. 47, R. 7 are fixed by the Code and not by the Court. The relevant portions of Section 10 of the General Clauses Act, 1897, are as follows:
10(1). Where, by any Central Act…. made after the commencement of this Act, any act…. is directed or allowed to be done or taken in any Court or office…. within a prescribed period, then, if the Court or office is closed… on…. the last day of the prescribed period, the act…. shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:
Provided that nothing in this Section shall apply to any act….to which the Limitation Act, 1877 (now the Act of 1903) applies.
(2) This Section applies to all Central Acts………made on or after the fourteenth day of January 1887.
36. As Section 4 of the Limitation Act, does not, in my view, apply to a deposit of costs, there is nothing in the Limitation Act which applies to the making of such a deposit, and the matter is governed by Section 10 of the General Clauses Act.
37. The next question is whether the appellants are entitled to an extension of time under this Section. First, with regard to the expression “Court or office.” Here, I think, an act directed or allowed to be done or taken in an office is used in this Section in contradistinction to an act directed or allowed to be done or taken in a Court, and that “office” does not here include the office of a Court, for when a litigant is required to do a particular act to further his suit or appeal, it is really in Court that he is required to do it although for the sake of convenience and to save the time of Judges it is in fact done in the office of the Court. The office of the Court is merely the hand with which the Court performs some of its functions. If this be so, the fact that the office of a Court remains open while the Court itself is closed for judicial business will not deprive a litigant of the extended time for doing an act to which Section 10 of the General Clauses Act, applies. It has been pointed out that in Appeals Nos. 14 and 17 the office of the Court served estimates of costs on the appellants during the vacation and it was suggested that this indicates that the Court was not closed within the meaning of Sec. 10. As I have stated above, two Judges sit during the vacation to deal with criminal work and other urgent work. They do not necessarily sit every day of the vacation. Usually there is so much criminal work for them to do that no other work is dealt with unless it is really of an urgent nature. In practice the only civil work which is ordinarily entertained in the vacation consists of applications for stay of execution or sale and it cannot be overlooked that it is not only those Judges who are not on vacation duty who avail themselves of the vacation but also the majority of advocates, who are officers of the Court. In these circumstances it seems to me that the Court is closed for ordinary business during the annual vacation. This conclusion is in accordance with the decision of the Taxing Judge of this Court in 2 Pat 264. The facts of that case were as follows: A memorandum of peal properly stamped in accordance with the then current Court-fees Act was presented to the Assistant Registrar on 18th August 1922 during the vacation. On that date the Registrar, who is the officer whom this Court has appointed to receive memoranda of appeal was not in Patna. An amendment of the Court-fees Act which enhanced the fees payable on memoranda of appeal came into operation on the 24th August. The Court reopened, after the vacation, on 23rd October. The question for decision was whether the presentation to the Assistant Registrar before the amendment was a valid presentation or not. In the course of his judgment the Taxing Judge observed:
There are ample authorities to shew that a memorandum of appeal presented during the vacation to the proper officer appointed in that behalf will be a valid presentation although it is open to She appellant to present a memorandum of appeal on the first day of the opening of the Court under the law of limitation if the time fixed for the filing of the same expires during the vacation. This is for the benefit of litigants. But there is nothing to prevent the presentation of a plaint or memorandum of appeal during a vacation or even on a Sunday, provided it is presented to a proper officer.
38. This case decided (1) that although presentation to a proper officer on a dies non is a valid presentation, (2) a presentation on the re-opening day is a presentation within time even when the prescribed period of limitation has expired. This latter proposition proceeds on the view that the Court is “closed,” within the meaning of Section 4 of the Limitation Act, during the vacation, although the vacation Judges attend Court for urgent judicial business. In another case, 8 PLT 779, a Division Bench held that where the Court is not sitting but the office is open, the time for a deposit of the printing costs of a Privy Council appeal cannot be deemed to aspire on the next day when the Court actually sits. The learned Judges refer neither to the decision in 2 Pat 264 nor to Section 10 of the General Clauses Act. Their decision is apparently based on a distinction between the Court and the office of the Court, a distinction, which I have already indicated above, should, in my view, be held so to exist.
39. In this view of the matter I would hold Chat in Appeal No. 14 the deposit was tendered in time and was wrongly refused by the office; and that in Appeal No. 17 the deposit was made in time. In each of these appeals the deposit should be accepted. With regard to Appeal No. 101 would hold that as no deposit was made within the prescribed period it cannot be accepted as the Court has no power to extend the time beyond the 60 days, which have elapsed.
D.S/R.K
40. Answered accordingly.
Alert