KRISHNAMACHARIAR Vs. SRI RENGAMMAL

JUDGEMENT

(1.) By a rule framed by this Court in 1914 as an addition to Rule 13, Order 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/s. Palani Goundan (1915) 32 IC 975, 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 Section 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 perfectly clear that the High Court had power under the combined effect of Section 5 of the Limitation Act and Section 122 of the Civil Procedure Code to apply the provisions of Section 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.

(2.) I agree with the judgment delivered by my Lord as to the construction of the words by or under any enactment in Section 5 of the Limitation Act. So far as Section 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 Section 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 It cannot be contended that an amendment of 1922 repealed the rule made in 1916.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.

(3.) 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 Order 22, Rule 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 Section 122, Section 122, as I read it, gives power to annul this provision in Order 22, Rule 9, and therefore would, if that provision were not found in Order 22, Rule 9, give powers to insert such a provision in that Order 22 if advisable. If such a power can be legally exercised in case of Order 22, Rule 9. I cannot see any possible reason why it should not be exercised in the case of Order 9, Rule 13.