Marten, C.J:—
The referring judgments set out the rival contentions on Order XLV, Rule 7, and I need not recapitulate them.
If the view taken by Mr. Justice Shah is correct, then there is power to extend the time under Order XLV, Rule 7, even on the wording of that Rule itself. But if the view taken by Mr. Justice Fawcett is correct as to the true construction of that Rule, namely, that thereby the Indian Legislature intended to fix a prescribed period which could in no event be extended, then a further question arises as to the effect of Rule 9 of the Privy Council Rules passed on February 9, 1920.
Now it will be observed that there is no express penalty provided by Order XLV, Rule 7, for failure to furnish security and to deposit the amount for expenses within the time therein mentioned. It is, therefore, in contrast with Order XLV, Rules 10 and 11 which provide in Rule 11 that if the further security required by Rule 10 is not given, then the proceedings may be stayed, and the appeal is not to proceed without an order of His Majesty in Council. For any penalty for breach of Order XLV, Rule 7, we must, I think, turn to Rule 9 of the Privy Council Rules, which runs as follows:—
“Where an appellant having obtained a certificate for the admission of an 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.”
In our opinion that Rule standing by itself gives power to the Court to extend the time for furnishing security or making the requisite deposit, although default may have been made under Order XLV, Rule 7. And if that view is inconsistent with the true construction of Order XLV, Rule 7, and with the intention of the Indian Legislature, as expressed by Act XXVI of 1920, then we have to refer to section 112 of the Civil Procedure Code which provides that “Nothing contained in this 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 and in so far as there is any conflict between Act XXVI of 1920 and Order XLV, Rule 7, as it now stands on the one hand, and the Privy Council Rule 9 on the other hand, then we think the Privy Council Rule must prevail. In this respect it will be noted that the Privy Council Rules were passed, as the preamble shows, in pursuance of the English Act of Parliament, 4 William IV.
Under these circumstances, speaking for myself it is not necessary to express my opinion on the true construction of the present Order XLV, Rule 7, apart from Rule 9 of the privy council rules. The referring judgments show that the present Order XLV, Rule 7, is open to considerable doubt, for they arrive at different conclusions as to its meaning. Consequently, with all respect to the opinion expressed in Ram Dhan v. Prag Narain, I am unable to see that the amendment made by Act XXVI of 1920 has been very carefully drafted. However that is a minor point. And I need not, in the view I take of the question submitted to us, do more than refer to the older cases in Burjore and Bhawani Pershad v. Mussumat Bhagana, In the matter of the Petition of Soorjmukhi Koer, and Fazul-un-nissa Begam v. Mulo, for the Court's decision on Order XLV, Rule 7, prior to the amending Act XXVI of 1920.
I would accordingly answer the question submitted to us in the affirmative.
Crump, J.:—I agree.
Patkar, J.:—I agree.
Answer accordingly.
R.R