Alfred Henry Lionel Leach, C J.

[1] The question which has been referred is whether in an appeal to His Majesty in Council the Court has power to extend the time for furnishing the security and making the deposit required by Order 45, Rule 7 of the Code of Civil Procedure beyond the periods mentioned therein. The rule provides that where the certificate permitting the appeal is granted the applicant shall furnish the security and make the deposit within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date. The words:

within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow were substituted for the words " within six months" by Act XXVI of 1920. The amendment was made in order to expedite appeals to the Privy Council by restricting the Court s discretion to extend the time. Up to then it had been the uniform practice in the Courts in India to grant extensions of time and it would appear that the impression had been created that they had been too lenient when dealing with such applications. The rule as it stood before the amendment was regarded by the Privy Council itself as being merely directory, although it had intimated that it should not be departed from without cogent reasons: Burjore and Bhawani Per shad v. Mussumat Bhagana (1883) L.R. 11 I.A. 7 : I.L.R. 10 Cal. 557 [LQ/PC/1883/28] (P.C.).

[2] Since the amendment there has been a conflict of judicial opinion on the question whether the amended rule has the effect which the legislature intended it to have. The conflict has arisen by reason of the provisions of Rule 9 of the rules framed by the Privy Council and Section 112 of the Code of Civil Procedure. Rule 9 reads as follows:

Where an appellant, having obtained a certificate for the admission of an appeal, fails to furnish the security or make the deposit required (or apply with due diligence to the Court for an order admitting the appeal), the Court may, on its own motion or on an application in that behalf made by the respondent, cancel the certificate for the admission of the appeal, and may give such directions as to the costs of the appeal, and the security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises, as in the opinion of the Court the justice of the case requires.

[3] Section 112(1)(b) of the Code of Civil Procedure states that nothing in the Code shall be deemed:

To interfere with any rules made by the Judicial Committee of the Privy Council, and for the time being in force, for the presentation of appeals to His Majesty in Council, or their conduct before the said Judicial Committee.

[4] Stated broadly the conflict is this : Some Judges have regarded the amendment of Order 45, Rule 7 of the Code of Civil Procedure as constituting an over-riding statutory prohibition of extension beyond sixty days after the initial period of ninety days, while other Judges have considered that Rule 9 of the Privy Council Rules governs the situation by reason of Section 112 of the Code and still leaves the granting of time a matter of discretion.

[5] In Nilkanth Balwant v. Vidya Narsinha Bharati (1927) I.L.R. 51 Bom. 430 (F.B.), a Full Bench of the Bombay High Court expressed itself strongly in favour of the view that Rule 9 has left the Court a discretion in the matter. The question was referred to a Full Bench as Shah, J. and Fawcett, J., had disagreed, Shah, J., being of the opinion that the Court had still power to extend the time for cogent reasons, while Fawcett, J., considered that the amendment of Order 45, Rule 7 in 1920 restricted any extension beyond sixty days after the ninety days had expired. The Full Bench consisted of Marten, C.J. and Crump and Patkar, JJ., and they were unanimous in adopting the opinion of Shah, J. After pointing out that there was no express penalty provided by Order 45, Rule 7, for failure to furnish the security and to make the required deposit, Marten, C.J., observed that as there was an inconsistency between Order 45, Rule 7 and Rule 9 of the Privy Council Rules, the Privy Council rule must prevail by virtue of the provisions of Section 1

12. On this basis the Court granted an extension beyond the additional period of sixty days. The appeal was in due course heard by the Privy Council and the judgment of their Lordships is reported in Vol. 54 of the Bombay series of the Indian Law Reports, commencing at page 49

5. The judgment, however, makes no reference to the action of the Bombay High Court in extending the time.

[6] Nilkanth Balwant v. Vidya Narsinha Bharati (1927) I.L.R. 51 Bom. 430 (F.B.) was considered by Beasley, C.J., and Curgenven, J., in Poornananthachi v. Gopalaswami Odayar , but they found themselves unable to share the opinion of the Bombay High Court. Beasley, C.J., considered that Rule 9 of the Privy Council rules gave nothing more than the right to cancel the certificate, but if it could be read as giving the Court power to extend the time, the extension could not exceed the sixty days provided by Order 45, Rule

7. The learned Chief Justice did not imagine that Rule 9 was to have a different effect from Order 45, Rule 7, as Rule 9, and the amendment to Order 45, Rule 7 came into effect on the same date (1st January, 1921). Curgenven, J., delivered a separate judgment to the same effect. In Kachi Reddi Nagi Reddi v. Saki Reddi (1922) 18 L.W. 29, Oldfield and Ramesam, JJ., also held that the Court had no power to extend the time beyond the sixty days, but this decision was before the decision in Nilkanth Balwant v. Vidya Narsinha Bharati (1927) I.L.R. 51 Bom. 430 (F.B.) and Ramesam, J., later changed his opinion. In Ramakrishna Iyer v. Parameswara Iyer C.M.P. No. 3644 of 1931, Reilly and Anantakrishna Aiyar, JJ., followed Nilkanth Balwant v. Vidya Narsinha Bharati (1927) I.L.R. 51 Bom. 430 (F.B.) and their decision was accepted by Ramesam, J., sitting with Madhavan Nair, J., in Kileru Rama Kottiah v. Dhartnabotla Subramanya C.M.P. No. 4993 of 1931.

[7] The only decision of the Calcutta High Court to which we have been referred to is that of Raj Kumar Govind Narain Singh v. Shamlal Singh (1936) 39 C.W.N. 651 where Rankin, C.J. and Ghose, J., expressed the opinion that Rule 9 of the Privy Council rules did not empower the High Court to grant an extension beyond sixty days. The Bombay decision is not referred to in the judgment and presumably was not considered. The Allahabad High Court has also decided that there is no power of extension beyond the sixty days: Ram Dhan v. Prag Narain (1921) I.L.R. 44 All. 216 and Bahadur Lal v. Judges of the High Court at Allahabad (1933) I.L.R. 55 All. 432 (F.B.). The latter case was decided by a Full Bench consisting of Mukerji, A.C.J. and King and Niamatullah, JJ. Mukerji, A.C.J. and King, J., were of the opinion that there was no discretion left in the Court after the expiration of the sixty days, while Niamatullah, J., held that there was. King, J., considered that Rule 9 could be read as applying to a failure to comply with an order falling within the maximum period allowed by Order 45, Rule 7 and Mukerji, A.C.J., agreed with him. Niamatullah, J., didnot consider that Order 45, Rule 7 necessarily implied that the Court had no power to grant an extension for more than sixty days, but assuming that it did conflict with Rule 9 he agreed with the opinion of the Bombay High Court that the latter rule prevailed. The Patna and the Lahore High Courts have also held that there is no power to extend the time beyond the sixty days : Sri Kamala Kanta Singh Manki v. Bindhumukhi Dassi A.I.R. 1929 Pat. 431 [LQ/PatHC/1929/89] and In re MunnaLalv.Gajraj Singh A.I.R. 1935 Lah. 733. The Lahore High Court considers that the words "make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires" are intended to cover merely incidental orders necessitated by the cancellation of the certificate.

[8] I have already pointed out that in amending Order 45, Rule 7 the Legislature intended to limit the discretion of the Court in granting further time to a maximum period of sixty days beyond the ninety days which the applicant has of right - there would be no reason for the amendment otherwise - and I am of the opinion that the words of amendment effect their object so far as the Code is concerned. Therefore, if Order 45, Rule 7 stood alone I should have no hesitation in holding that the Court had no discretion to grant time beyond the further period of sixty days. But if there is conflict between the Code and the Privy Council rules the rules must prevail. Section 112 of the Code says so in very plain language. Consequently the question is reduced to this : Does Rule 9 of the Privy Council rules give a discretion to the Court to extend the time If it does, nothing in Order 45, Rule 7 can take away that discretion. In my opinion Rule 9 does leave a discretion in the Court and therefore must prevail over Order 45, Rule

7. I read Rule 9 in this way. On failure by the applicant for leave to appeal to the Privy Council to furnish the security or make the deposit the Court has two courses open to it. It may cancel the certificate and pass consequential orders or it may instead of cancelling the certificate make such "other" order as it considers requisite. If it does not cancel the certificate the only other order it can pass is to extend the time for furnishing security or making the deposit, or doing both, as the case may be. The furnishing of security and the making of the deposit are conditions which must be complied with before the appeal can be lodged in the Privy Council. It must be cancellation or extension.

[9] We have been asked to hold that the words "make such further or other order in the premises, as in the opinion of the Court the justice of the case requires," are to be read with the words "may give such directions as to the costs of the appeal, and the security entered into by the appellant as the Court shall think fit", but with respect to the judicial opinion which has supported this construction I consider its acceptance would mean violating the plain meaning of the rule.

[10] It is very desirable to guard against delay in the prosecution of appeals to the Privy Council and it is unfortunate that there should be this conflict between Order 45, Rule 7 and Rule 9 of the Privy Council rules, but at the same time I do not think that it is of much practical importance. With the amendment of Order 45, Rule 7, before it, the Court is not likely to grant more than sixty days beyond the initial ninety days, unless the circumstances are very exceptional.

[11] For the reasons indicated I would answer the reference in this way. The Court has power under Rule 9 of the Privy Council rules to extend the period allowed for furnishing the security and the making of the deposit required by Order 45, Rule 7 beyond the periods mentioned therein, but the power should not be exercised without cogent reason.

Madhavan Nair, J.

[12] 1 agree.

Varadachariar, J.

[13] I agree.

[14] This petition coming on for hearing before the Division Bench after the expression of the above opinion of the Full Bench, the Court made the following

ORDER



1. The Full Bench have laid down that the Court can grant an extension of time but it must be for cogent reason. A number of affidavits, counter-affidavits and reply affidavits have been filed before us. They disclose a certain amount of conflict but certain main facts are beyond dispute. The learned Counsel for the petitioners has told us that he received intimation by trunk phone from his clients in the mofussilon the 10th March, 1938, that they were in a position to make the deposit but as the time had expired by that date he was asked for advice as to what they ought to do. He replied to them to come over to Madras immediately. This they did but it was too late on the 11th when they arrived to file the petition for extension that day. This petition was accordingly filed on the 12th March, 193

8. We accept these statements made by the petitioners Counsel and according to them the real delay is only of four days. There is also the fact that the petitioners are a large number, who, in different sets, are interested in small portions of the subject-matter of the appeal. It is not unreasonable that they should come to some arrangements between themselves in the matter of the deposit. The mere fact that one or some of them could have made the deposit is not the reasonable test to be applied.

2. In view of the special circumstances of the case, we excuse the delay. As it is late today and to-morrow is a holiday, we extend time till Thursday, the 14th instant. The petitioners will however pay to the respondent the costs of this petition.