Dawson-Miller, C.J:— In this case an application is made for leave to appeal to His Majesty in Council from an order dated the 4th February, 1920, Dismissing the appellant's appeal in this Court for default in furnishing his list of papers to be printed in the paper Book According to the rules of this High Court the appellant preferring the appeal is required to prepare and deliver a list of the papers to be inserted in the paper-book to the Deputy Registrar and by rule 8 of Chapter IX of the High Court Rules it is laid down that he shall, within 30 days after service of the notice required by Rule 6, deliver to the Deputy Registrar a list prepared in accordance with the previous rules. In the present case the appellant filed his memorandum of appeal on the 11th July, 1919. Subsequently he was notified under rule 6 requiring him to prepare a list of the papers. The exact date upon which that notice was issued does not appear but on the 6th January, 1920, the appellant appears to have been in default and on that day he was given time until the 20th January, for filing his list upon an application to the Registrar. On the 22nd January not having filed his list a further application to the Registrar was made and he was given further time until the 2nd February. The order then made was “If not filed then place before the Bench.” On the 4th February the appellant was still in default with the preparation of his list and on that day the case came before the Bench for orders and as there was no explanation why the list was not ready and as it appeared from the order sheet that the appellant had been in default, on a previous occasion in paying his Court-fees the Court considering that the was already a I month over-due and had not yet started to prepare his list dismissed his appeal for default) and the Court, as appears from their order, took into consideration the previous history of the case.
2. From that order dismissing the Appellant's appeal he wishes now to prefer an appeal to His Majesty in Council and has filed the present petition asking for a certificate that the appeal complies with the provisions of section 110 of the CPC. He contends in the first instance that the appeal involving a sum of over Rs. 10,000 ought to be admitted and that notwithstanding that the order or decree from which be appeals is one affirming the decision of the Court below there is a substantial question of law to be decided by their Lordships of the Privy Council. For that purpose he relies upon the questions of law which had to be determined in the Court of first instance, questions which arise upon the merits of the case. It is quite obvious that so far as the present appeal is concerned no question of the merits of the case at all can arise until the Privy Council has set aside the order which was passed on the 4th February, 1920 and so far as this appeal is concerned the only question which can go for determination to the Privy Council is the question whether or not we were justified on that occasion in passing the order which we did dismissing the appeal for default.
3. It is therefore in my opinion idle for the appellant to contend that there is some question of law arising on the merits of the case. Those merits do not become the subject of appeal to His Majesty in Council. The only question, as I have already said, which will have to be determined is the question whether or not our order was justified in the circumstances.
4. But the appellant contends that even if the view just expressed is right there is a substantial question of law which arises upon the order already made. He contends that the whole of the rules of the High Court at Patna made in 1916 when the Court was constituted are ultra vires because they contravene or at least do not comply with the provisions of the Code of Civil Procedure. He has referred to sections 122 and 123 of the CPC and contends that the High Court at Patna at the time it was established was one of the Courts established under the Indian High Courts Act of 1861 mentioned in that section. The earlier section provides that such Courts as well as the Chief Courts of the Punjab and Lower Burma may from time to time after previous publication make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the first Schedule. He then refers to section 123 which provides that “A committee, to be called the Rule Committee, shall be constituted at each of the towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon.” It then provides that each such Committee shall consist of certain persons. Then he relies upon section 124 which provides that
“Every Role Committee shall mike a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the first Schedule, or to make new rules, and be ore making any rules under section 122 the High Court shall take such report into consideration.”
5. There is no direct proof before the Court from which we could decide that the provisions referred to in sections 122 to 124 have not been complied with but I will assume for the purposes of this case that the rules made by the Patna High Court when it was constituted in the year 1916 were not submitted to any Rule Committee and that no such Rule Committee as is contemplated in section 123 was in existence. But it is perfectly clear looking both at section 122 and at section 123 that the High Courts contemplated there do not include the High Court at Patna. I doubt very much whether the section was intended to include any new Court which might be constituted even under the Act of 1861 but the High Court at Patna in the first place was not constituted under that Act and the necessity of forming Rule Committees is only enjoined under section 123 in the cases of Calcutta, Madras, Bombay. Allahabad, Lahore and Rangoon and does not include Patna. Therefore the Patna High Court cannot in any sense be said to come within the provisions of sections 122 and 123 and this quite clear that section 124 which refers to the Rule Committees refers only to the Rule Committees constituted under section 123 and to no others. Therefore in my opinion these rules which have been relied upon have no application to the rules originally framed by the High Court at Patna. The power to make rules given to the High Court at Patna when it was constituted is set out in clause 29 of the Letters Patent which provides that
“And we do further ordain that it shall be lawful for the High Court of Judicature at Patna from time to time to make rules and orders for regulating the practice of the Court and for the purpose of adapting as far as possible the provisions of the Code of Civil Procedure, being an Act, No. V. of 1908, passed by the Governor-General in Council, and the provisions of any law which has been must or may be made amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction, respectively.”
6. That is the power under which the High Court at Patna originally made the rules which it follows up to the present day and it seems pretty clear that under the Code of Civil Procedure cases such as arose when this High Court was constituted were actually in contemplation of the legislature at that time because we find in section 125 it is provided that High Courts other than the Courts specified in section 122 shall exercise the powers conferred by that section not in the manner provided in sections 123 and 124 but in such manner and subject to such conditions as the Governor General in Council may determine. Then there follows a proviso that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court. That section provides two things, I first, that High Courts other than those mentioned in the preceding sections may exercise the powers mentioned in section 122 subject to such conditions as may be imposed by the Governor-General in Council and further that they may in any event by mere publication adopt the rules already in force in any other High Court, such rules having presumably been passed with proper sanction and therefore in the opinion of the legislature requiring no further sanction. What was done in the case of the Patna High Court appears quite clearly, I think, from the note at the beginning of the volume which contains the Patna High Court rules. The note is to the following effect
“The following Rules have been made by the Court under the powers in that behalf conferred upon it by Parliament, the Letters Patent, and the Acts of the Indian Legislature and have received the sanction of the Governor-General in Council and of the local Government where necessary”
signed by the then Registrar of the High Court. Nothing has been shown nor even suggested that the note stated at the beginning of the book which I have just referred to does not accurately state the true condition of affairs and in any case we are bound to presume that these rules, which have been acted upon since the constitution of this Court in 1916, have been properly passed and regularised until the contrary is shown. In the circumstances it seems to me that there is no substantial question of law for determination by the Privy Council in the present case. The application must be rejected with costs. Hearing-fee five gold mohurs.
7. Mullick, J.:— I agree.
8. Application rejected.