PANDHARINATH KIKALAL Vs. THAKOREDAS SHANKARDAS VANI

JUDGEMENT

(1.) This is an appeal against the order of the Joint First Class Subordinate Judge of Dhulia ragcting an Application to restore the suit to the file. The plaintiffs filed suit No. 197 of 1918 to recover possession of the properties in suit. It is alleged that their pleader, Mr. Dev, compromised the suit without their consent and a decree was passed in terms of the compromise. The plaintiffs filed suit No. 25 of 1922 to set aside the compromise decree on the ground the authority to compromise the suit, and, the therefore, the decree was not binding on thim. This suit was not binding on them. This suit was dismissed on January 15, 1923, as their pleader Mr. Shidore was absent, and on the advice of their pleader they filed an appeal agai missal. The appeal was dismissed on June 3C that the order was not appealable. The made an application on June 15, 1925, to vt file, under Order IX, Rule 9, of the Civil P: learned Subordinate Judge held that the a time under Art. 164 of the Indian Limitati 8. 5 of the Indian Limitation Act the dela An appeal is filed against the order rejeci restore the suit to the file.

(2.) The provisions of Section 5 of the Indian were made applicable to applications unde [VOL. XXXI. e order of the Joint rejecting an appli- t the pleader had no efore, the decree was ist the order of dis-1925, on the ground plaintiffs, therefore, store the suit to the ocedure Code. The a rule made by this High Court under Section 122 of the Civil Procedure Code and published in the Bombay, (iovernment Gazette on December 21, 1927.

(3.) It is urged, on behalf of the respondents the High Court under Section 122 of the Civil ultra vires, that the High Court had no power to frame a rule modifying expressly or by necessary impl: tion prescribed by the Indian Limitation 1 "rule" in "by any enactment or rule" Limitation Act has been dropped by the amending Act X of 1922. The present rule does not alter expressly period of limitation. The rule frarnec applies a section of the Indian Limitation vides for such an application. The exist of Order XXII shows that the provision Indian Limitation Act was deliberatel schedule of the Civil Procedure Code, The under Section 122 of the Civil Procedure Code dure of the civil Courts subject to their's power by such rules to annul, alter or a plication was beyond n Act, and that under could not be excused. ng the application to limitation Act, 1908, Order IX, Rule 9, by that the rule made by Procedure Code was cation a rule of limita-3t, and that the word in Section 5 of the Indian or by implication the by the High Court Act which itself pro-nee of Clause (8) in Rule 9 f extending Section 5 of the placed in the first High Court has power ;o regulate the proce-perintendence, and has Id to all or any of the rules in the first schedule. "Enactment", under Section 3, Clause (17), of the General Clauses Act, would include any provision contained in any Act. The words "by any enactment or rule" have been changed into "by or under any enactment," The words "by or under" are more extensive than the mere word "by". The words "under any enactment would mean under any provision contain-ed in any Act; and would not be covered by the words "by any enactment," and would cover the rule making power under any provisions of the Act, e. g., Section 122 of the Civil Procedure Code : see Manibhai V/s. Nadiad City Municipality . Such rules are to be as effectual as if they were part of the statute itself. See Institute of Patent Agents V/s. Loekwood [1894] A.C. 347, 365, and Shankarlal V/s. Dakor Temple Committee (1925) 28 Bom. L.R. 309, 313, Similar contentions were considered and overruled by the Madras High Court in the Full Bench decision in the case of Krishnamachariar V/s. Srirangammal (1924) I.L.R. 47 Mad. 824, F.B, where it was held that the rule framed by the High Court applying Section 5 of the Indian Limitation Act to applications under Order IX, Rule 13, of the Civil Procedure Code, is intra vires.