MUNSHI MAHTO Vs. RAMAUTAR MAHTO

JUDGEMENT

(1.) First Appeal No. 280 of 1960 was filed by the petitioners on the 20th of September, 1960. Respondents 8 to 14 and 17 were minors. On the 19th of April, 1962, the learned Registrar directed (obviously under Rule 2, Chapter VI, High Court Rules) that the pleader guardian's cost of the minor respondents should be deposited within ten days and later the Division Bench granted further time for that purpose till the 30th of June, 1962, As there was default in compliance with that order, the appeal stood dismissed against the minor respondents and the same fact was intimated to learned Counsel appearing for the appellants On the 11th of July, 1962. On the 5th of September, 1962, M. J. C. 907 of 1962 under Section 151, Civil Procedure Code, was filed in this Court with a prayer for restoration of the appeal against the minor respondents, and in the application, it was stated that petitioner No.2, Deoki Mahto, who was in charge of the case, had an attack of typhoid fever and dysentery confining him to bed in a serious condition and, therefore, he failed to take necessary steps to deposit cost of the guardian for the minor respondents. A medical certificate was attached to the application in support of his illness. The Stamp Reporter, however, pointed out on the 29th of September, 1962, that the application was barred by time as it had not been filed within 30 days from the dismissal of the first appeal against the minor respondents, as provided under Rule 25 Chapter VII of the High Court Rules. Learned Counsel contested this report and raised an objection against the validity of that rule. He urged that the High Court could not make a rule providing for limitation of time for an application invoking inherent powers of the Court under Section 151, Civil Procedure Code.

(2.) The Letters Patent constituting the High Court of Judicature at Patna provide in Clause 29

(3.) Another point of importance for consideration is whether the period of 30 days from the date of dismissal of the appeal or application could be provided in the rule by the High Court within the powers vested in it under Clause 29 of the Letters Patent. Rule 25, either as it was originally or as it stands after amendment, is not a rule made under Section 122 of the Code of Civil Procedure as it does not touch any of the rules in the First Schedule of the Code or come under any of the provisions laid under Section 128. Clause 29 of the Letters Patent gives power to the High Court 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 to all proceedings in its testamentary, intestate and matrimonial jurisdiction, respectively. Re-admission of an appeal dismissed for default has been provided for by Rule 19 of Order 41 of the Code of Civil Procedure, But the dismissal envisaged in that rule must be under Rule 11 Sub-clause (2) or Rule 17 or 18 of that Order. That is to say, such dismissal must be for the default of the appellant to appear when the appeal is called on for hearing on the date fixed, or for his default to deposit the money required to defray the cost of serving the notice on the respondent. If Rule 25 of Chapter VII of the High Court Rules is taken to refer also to restoration of an appeal dismissed for such default, it will be a rule envisaged in Section 122 of the Code, in which case the non-approval of the State Government and the non-publication of the rule in the Official Gazette will hit it. It will, therefore, be safe to take that rule as applicable to cases of dismissal of appeal not covered by Rules 11, 17 or 18 of Order 41 of the Code.