MANICKCHAND DURGAPRASAD Vs. PRATABMULL RAMESWAR

JUDGEMENT

(1.) The facts leading up to this Reference are as follows. The respondent, Pratabmull Rameswar, filed a suit against the petitioner for the recovery of a sum of Rs. 87,000/- as damages under the circumstances stated in the plaint. The suit was dismissed by a single Judge sitting on the Original Side by a Judgment dated January 25, 1957. Against that decree the respondent tiled an appeal which was heard by a Division Bench. By a judgment dated February 19, 1960, the Division Bench reversed the judgment and decree of the Court of first instance and decreed the respondent's suit. Against the decree of the Division Bench the petitioner filed an application for a certificate under Article 133 of the Constitution, and by an order dated September 12, 1960, a certificate was granted in favour of the petitioner. Under Order XLV, Rule 7 of the Code of Civil Procedure the petitioner was required to furnish security within a period of six weeks from the date of the certificate or within a period of ninety days from the date of the decree complained of, which period could be extended by the Court for a maximum period of sixty days, whichever was the later date. As the decree complained of was passed on February 19, 1960, the later date contemplated by Order XLV, Rule 7 was the date on which the period of six weeks from the grant of the certificate expired. This period of six weeks therefore expired on October 26, 1960, on which date the Court was closed for the Annual Vacation. The Court reopened on November 15, 1960, but the petitioner could not make the deposit on the reopening day. On November 23, 1960, the petitioner took out a Notice of Motion for an order that the delay in depositing the amount of security for costs be condoned under Rules 5 and 6 of Chapter XXXIIIA of the Original Side Rules. This Notice of Motion was made returnable on November 28, 1960 and it came up for hearing on December 12, 1960. The Division Bench which had to deal with the Notice of Motion was confronted with conflicting decisions on the question as to whether the Court had jurisdiction to extend the time limited by Order XLV, Rule 7. So far as this Court is concerned it has been held in a series of decisions that the Court has no power to extend the time fixed by Order XLV, Rule 7 of the Code of Civil Procedure, hot most of the other High Courts of India have taken a different view and have held either that the Court has power under Order XLV, Rule 7 itself to extend the time fixed by Order XLV, Rule 7 or that it has such power under Order XII, Rule 3 of the Supreme Court Rules which is a substantial reproduction of Rule 9 framed by an Order of His Majesty in Council in the year 1920. The Division Bench which dealt with the Notice of Motion was inclined to think that the decisions of this Court to the effect that the Court is powerless to extend the time fixed by Order XLV, Rule 7 were wrong, and upon that view it referred the following questions to the Full Bench:

(2.) At the time of the argument before us Mr. Meyer appearing for the petitioner contended, in the first place, that apart from Order XII, Rule 3 of the Supreme Court Rules, the Court has power under Order XLV, Rule 7 of the Code of Civil Procedure itself to extend the time. In support of this proposition he relied upon a Full Bench decision of this Court in In re: Soorjmukhi Koer, ILR 2 Cal 272, which was approved by the Privy Council in the case of Burjore and Bhawani Pershad v. Bhagana, ILR 10 Cal 557. The decision of the Full Bench of this Court was given under Section 11 of Act VI of 1874 which was an Act to consolidate and amend the law relating to appeals to Privy Council from decrees and orders of Civil Courts. Section 11 of that Act was in the following terms:

(3.) It is unnecessary to set out the language of Section 602 of the Codes of 1877 or of 1882 or of Order XLV, Rule 7 as it stood prior to the amendment of 1920 because the language is the same as that of Section 11 of Act VI of 1874. Under Section 602 of the Code of 1882 it was held by a decision of three Judges of this Court in the case of Roy Jotindra Nath v. Rai Prasanna Kumar, 11 Cal WN 1104, that the Court has power to extend tune provided by that section. In this case this Court followed the decision of the Privy Council in Burjore's case, ILR 10 Cal 557 (PC). It may therefore be taken for granted that the decision of the Privy Council was good law under the Code of 1882 as well as under Order XLV, Rule 7 as it stood prior to the amendment of 1920. The question is whether the decision of the Privy Council is good law even alter the amendment of Order XLV, Rule 7 by Act XXVI of 1920. The changes effected by the amendment arc two. In the first place, the amendment has curtailed the period of six months from the date of the decree to a period of ninety days. In the second place, it has conferred upon the Court the power to extend time beyond the period of ninety days up to a maximum period of sixty days upon good cause shown. The amendment, however, has left the period of six weeks from the date of the grant of the certificate untouched. Upon this state of things Mr. Meyer contends that when the Legislature has not limited the power of extending time beyond the period of six weeks from the grant of the certificate as it has done in respect of the period of ninety days from the date of the decree, the power of the Court to extend time beyond six weeks from the grant of the certificate is unlimited upon the authority of the Privy Council decision. In other words, the argument is that the effect of the Privy Council decision is lost by legislative amendment only in respect of the period of ninety days from the date of the decree, but not in respect of the period of six weeks from the date of the grant of the certificate and that the provision of Order XLV, Rule 7 remains directory in respect of the second alternative. On behalf of the respondents Mr. Kar contends that at the time of the amendment in the year 1920 the Legislature applied its mind to the question of extension and gave the Court power to extend time up to a maximum period of sixty days under the first alternative without saving anything with regard to the second and, therefore, the Legislature has impliedly taken away power of the Court to extend time under the second alternative; and, therefore, the decision of the Privy Council in Burjore's case, ILR 10 Cal 557 (PC) stands completely superseded in respect of both the alternatives. For the reasons which I am going to state presently it is not necessary to express any opinion on the merits of these two rival contentions.