Krishnan, J. — The chief question argued in this case is whether the rule framed by this High Court, as an addition to R. 13, O. 9, of the Civil Procedure Code, by which the provisions of section 5 of the Limitation Act were made applicable to applications to set aside ex parte decrees is ultra vires or not. The petitioner contends that it is and that the Lower Court had no jurisdiction to excuse the delay in this case and should have dismissed the application, as barred by limitation. The defendants who applied to set aside the ex parte decree against them had all of them been duly served and under Art. 164 of the Limitation Act, the period of limitation for setting aside the decree is 30 days. from the date of the decree. The application in this case was made beyond time and if delay cannot be excused, the petition should have been dismissed. The Limitation Act does not by itself make Sect. 5 thereof applicable to applications of this sort and but for the rule framed by the High Court, the Court would have no power to set aside the decree. The question whether the rule is ultra vires or not, thus necessarily arises. If the rule is intra vires, there is no ground for interfering with the Lower Court's order on the merits under this Court's revisional jurisdiction. I am not prepared to say that the Lower Court exercised its discretion in excusing delay and setting aside the ex parte decree in any illegal or improper manner, if it had jurisdiction to do so.
The question of the validity of the rule has, therefore, to be considered in this case. It was framed by this Court under the power given to it by Sects. 122 and 128, Civil Procedure Code. The rule necessarily alters the period of limitation for applications under O. 9, R. 13, Civil procedure Code, fixed by the Limitation Act. Do our rule making powers extend far enough to enable us to frame a rule which has that effect? I am inclined to think they do not. Sect. 122 gives us power to frame rules “regulating our own procedure and the procedure of the Civil Courts, subject to our superintendence” and no more. If the rule framed falls within that category we can no doubt annul, alter, or add to any rule in the first schedule of the Civil Procedure Code. Sect. 128 reiterates that the rule should refer to procedure of Civil Courts and adds one further restriction that the rule framed should not be inconsistent with the provisions in the body of the code. It then gives examples of the sort of rules that may be framed. But there is no indication here that we could frame a rule to alter the limitation fixed for any application by the Limitation Act.
The question whether the rule in dispute is ultra vires or not was once raised before Coutts-Trotter., J., sitting as a single Judge and he held that it was not: (see Sennimalai Goundan v. Palani Goundan(1) He held the view that:—
“the articles in the Limitation Act limiting applications of this nature which are almost entirely interlocutory deal clearly with matters of procedure,”
With all respect to the learned Judge, I feel considerable difficulty in accepting his view. I do not see how we can distinguish between the limitation for suits and the limitation for applications. If one is procedure, the other must equally be procedure. I think neither of them can properly be brought under the term ‘procedure.’ The first schedule of the Civil Procedure Code deals with numerous kinds of applications. If we can alter the limitation for one, it will follow that we have the power to alter the limitation with regard to every one of them. Can we then for example pass a rule to alter the limitation for execution applications? It seems going too far, to answer the question in the affirmative.
A full Bench of the Allahabad High Court unanimously held the view that limitation could not be so affected: the learned Judges say in Narsingh Sahai…(Defendant); v. Sheo Prasad…(Plaintiff).*:
“We are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the Indian Limitation Act.”
This view has been followed in the Lahore High Court by Mr. Justice Raoof in the case, Madan Gopal v. Malawa Ram(2). He observes:
“the Court has power to alter, amend and add to rules of procedure laid down in the Code of Civil Procedure, according to Sect. 122 of the Code; but it has no power to alter the period of limitation provided by the Limitation Act”: see page 778.
It was held by the Bombay High Court under the corresponding Sect. 652 of the old, Civil Procedure Code which gave power to the High Court, like the present Sect. 122, to make rules to regulate matters connected with its own procedure and the procedure of Civil Courts subject to its superintendence, that the High Court had no power to frame a rule modifying expressly, or by necessary implication any rule of limitation prescribed by the Limitation Act: (see Chunilal Jethabhai v. Dahyabhai Amulakh(3).
Our attention was drawn by the respondents' vakil to O. 22, R. 9, Cl. (3) of the Civil Procedure Code, where there is an express provision, made by the legislature itself that Sect. 5 of the Limitation Act shall apply to applications under sub-rule (2) of that rule and it was argued that this was an indication that the legislature considered the application of Sect. 5 to any of the applications dealt with in the first schedule, as merely a matter of procedure and that the High Court has therefore power to frame similar rules under Sect. 122, Civil Procedure Code. On the other hand, it was urged that the legislature itself added the provision, as it could not be done by any rule framed by the High Court. Neither argument seems to me to be sound and I think no inference can be drawn from it one way or the other.
Our attention was also drawn to the words of Sect. 5 of the Limitation Act, as they stood at the time the rule, in question here was framed. It contemplated the section being made applicable “by any enactment or rule for the time being in force.” But in my opinion this has no bearing on the question whether the rule, making it so applicable, is a valid rule or not. That has to be decided with reference to the scope of the rule-making power. It may be observed that Sect. 5 has been recently amended by Act X of 1922, whereby the words “by any enactment or rule” have been changed into “by or under any enactment”, the word rule being taken away. There was some discussion about the effect of this alteration and the reason for it; but I think it has no bearing on the present case.
For the above reasons, I am inclined to think that the rule in question is ultra vires. But as my learned brother takes a different view and as the question is of some importance, as it refers to the scope of our rule-making powers and as he desires that the question should be referred to a Full Bench, I agree to that course.
We refer to the Full Bench the following question:—
“Is the rule framed by the High Court applying Sect. 5 of the Limitation Act to applications under O. 9, R. 13 of the Civil Procedure Code intra vires or not?”
Waller, J.—I regret that I cannot agree. Sect. 5 of the Limitation Act may be made applicable by rule to any application. Such a rule has been passed under Sect. 122, Civil procedure Code. I am not prepared to dissent from Coutts-Trotter, J.'s view that this is a matter of procedure and that the High Court had power to frame such a rule under Sect. 122, Civil Procedure Code. I agree with him that the articles in the Limitation Act, limiting applications of this kind deal with matters of procedure. The rulings quoted seem to me to be not precisely in point. All that they decided was that the time requisite for getting certain copies, excluded by Sect. 12 of the Limitation Act, could not be enlarged by implication, in consequence of a rule having been passed, insisting on a further copy being produced. What one Court held was that the rule was valid enough, but had no effect on Sect. 12. That is not the point here. There is no question here of altering expressly or by implication a period of limitation. It is a question of applying by rule a section of the Limitation Act, which itself provides for such application. R. 9 (3) of O. 22, Civil Procedure Code, indicates, to my mind, that the legislature regarded the matter as being one of procedure. 1 am not prepared to infer from the fact that the legislature itself inserted sub-rule (3), that the High Court has no power to insert a similar rule elsewhere in Sch. I. I would, therefore, hold that the rule in question is intra vires. In any case, it has been in force and followed for a number of years. Its validity seems to have been unchallenged since 1915: (vide Sudalaimuthu Kudumban v. Audi Reddiar; and I think that the best course, now that the question has been raised and we are differing on it, is to refer it for the decision of a Full Bench. I, therefore, agree that the question framed by my learned brother be so referred.
[This Civil Revision Petition came on for hearing on the 10th and 11th days of April, 1924 before a Full Bench constituted as above]
Mr. K. S. Ramabhadra Aiyar for the Petitioner.
Mr. A. Swaminadha Aiyar for the Respondents.
OPINION
The Chief Justice.—By a rule framed by this Court in 1914, as an addition to R. 13, O. 9, of the Civil Procedure Code, the provisions of section 5 of the Limitation Act were made applicable to applications to set aside ex parte decrees. It is suggested that that rule is ultra vires of the rule-making powers, vested in this Court. I now propose to say very little about it, because I have already expressed my opinion on this matter, in Sennimalai Goundan v. Palani Goundan; and nothing that I have heard in the course of an extended argument induces me to think that that opinion was wrong. I think the strongest ground, on which the rule can be supported is this: that Sect. 5 of the Limitation Act obviously contemplates its extension by means of rules. In its old form, it used the word “rule” and the section may be made applicable “by any enactment or rule.” The words have been changed as follows: instead of “by any enactment or rule,” the section now runs “by or under any enactment.” These words, though they mean the same thing obviously express it better In my opinion, it is prefectly clear that the High Court, had power, under the combined effect of Sect. 5 of the Limitation Act and Sect. 122 of the Civil Procedure Code, to apply the provisions of Sect. 5, which after all are a relaxation of the rigour of the law to a matter so eminently suitable to such an extension as to set aside ex parte decrees. I agree with my brother Waller, J. and the answer to the question referred to us, is, that the rule framed by the High Court is intra vires.
Ramesam, J:—I agree with the Judgment delivered by my Lord, as to the construction of the words ‘by or under any enactment,’ in Sect. 5 of the Limitation Act. So far as Sect. 5 is concerned, the section itself contains an indication that it may be so extended by any other enactment, or by any other rule made under any enactment. But even assuming that the contention of the learned vakil for the appellant as to the effect of the amendment is correct, namely, that the High Court cannot by any rule in the Civil Procedure Code extend Sect. 5 of the Limitation Act, the effect of the amendment, which was made in 1922 can be that only after 1922 the High Court cannot make such alterations or additions. It cannot be contended that an amendment of 1922 repealed the rule made in 1916. All that can be said is that no such rule can be made hereafter; but, as I have said already, I do not agree with the contention of the learned vakil, as to the effect of the words ‘by or under any enactment.’
Wallace, J.—I agree with what both my learned brothers have said; but, I would like to add one or two sentences. The appearance of a similar rule in O. 22, R. 9, would indicate that such a provision of limitation was deliberately placed by the legislature in the first schedule of the Civil Procedure Code and therefore alterable, as a matter of procedure by force of Sect. 122. Sect. 122, as I read it, gives power to annul this provision in O. 22, R. 9, and therefore would, if that provision were not found in O. 22, R. 9, give powers to insert such a provision in that O. 22, if advisable. If such a power can be legally exercised, in cage of O. 22, R. 9, I cannot see any possible reason why it should not be exercised in the case of O. 9, R. 13.
C.KReference answered in the affirmative.