PAPPATHI AMMAL Vs. SIVAGANNAM PILLAI

JUDGEMENT

(1.) This revision petition was referred to a Full Bench of the following order:

(2.) The suit was filed on 7.5.1125 and it was dismissed for default on 22.10.1951. On 21.12.1951 the plaintiff applied under O.9 R.9 of the Code of Civil Procedure for setting aside the order dismissing the suit and for restoring it to file. An application to excuse the delay in filing the petition was also filed on 2.2.1952. No orders seem to have been passed on that petition. The plaintiff objected to the petition being allowed. The court below allowed the restoration petition by its order dated 1.4.1952. The revision petition is from that order.

(3.) The point urged in the revision petition is that the court below had no jurisdiction to allow the petition which was filed more than 30 days from the date of the dismissal of the suit and which was therefore barred by limitation. When this suit was filed the Travancore Code of Civil Procedure was in force. O.9 R.9 of that Code contained a provision to the effect that S.5 of the Travancore Limitation Act would apply to an application under that Rule. That section empowers the court to excuse the delay in making the application if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed time. The Travancore Code of Civil Procedure was replaced by the Indian Code on 1.4.1951 by Act II of 1951 (Central). The Indian Code does not contain a provision similar to that contained in the Travancore Code making S.5 of the Limitation Act applicable to an application under O.9 R.9. In exercise of the powers conferred on the High Court by S.122 of the Code of Civil Procedure to annul, alter or add to the Rules in the First Schedule, this High Court amended O.9 R.9, and made S.5 of the Limitation Act applicable to an application under that Rule. This amendment came into force only on 14.5.1952, i.e., after the date of the order of the Court below even though it was published in the Gazette dated 5.2.1952. The learned District Judge proceeded on the basis that the amendment was in force on the date of the order, i.e., 1.4.1952. It is argued for the revision petitioner that the law that was in force when the restoration application was filed, i.e., O.9 R.9, of the Indian Code of Civil Procedure, should apply to the case, while the counter petitioner contends that it is either the Travancore Code which was in force when the suit was filed or the Indian Code as amended by the High Court which is in force at present that should apply to the case.