1. I have had the advantage of reading my learned brother's judgment, but I regret that I do not see my way to agree with his conclusion, nor with his opinion that the provisions of Rule 7 are as directory after the amendment of the rule by Act XXVI of 1920, as they were before the Act was passed.
2. The insertion of the words 'or such further period' etc. show that the legislature's attention had been drawn to the question of extension of time by the Court, and they put a definite time-limit on any such extension in the first of the two alternative cases provided for by the rule, and give no corresponding power to extend time in the second of those two cases. I can hardly conceive of a case to which the maxim 'Expressio unius est exclusio alterius' should more obviously apply. The question arises regarding two consecutive sentences in an enactment, and it is not a case where there is any room for thinking that there may be a failure to make the 'expressio' complete by oversight, such as referred to in Halsbury, Vol. XXVII, Article 286, at p. 152. The Privy Council decision in Burjore and Bhawani Pershad v. Bhagana, I.L.R. (1883) 10 Cal. 557 on which the old practice rests, approves of the Full Bench ruling in In the matter of the Petition of Soorjmukhi Koer, (1877) I.L.R. 2 Cal. 272, F.B. where Garth C.J. said that the requirements of the rule were not 'absolutely imperative,' as there was no' provision requiring the petition to be dismissed in case of default. That reason cannot be said to be effective, now that the legislature has deliberately provided for the particular case in which, and the limits within which, the Court has power to extend the time specified in the rule.
3. Consequently the case must now, in my opinion, be held to fall under the general rule expressed by Grove J. in Earlier v. Palmer (1881) 8 Q.B.D. 9, 10 that 'provisions with respect to time are always obligatory unless a power of extending the time is given to the Court,' Here the power that the Court was formerly recognized to have, in a case like the one before us, has been impliedly taken away by the legislature.
4. I think that, as the amendment of 1920 was made at the instance of the Privy Council, who wanted delays in getting appeals before them reduced, they are not likely to approve of any whittling down of the provisions of the rule, as it now stands. It is to my mind a case where it is the duty of the Court to construe the rule so as to prevent evasion.
5. I do not think that Rule 9 of those in Rule 90A, Appellate Side Rules, points the other way. The words 'make such further or other order' etc. seem intended to cover merely incidental orders entailed by the cancellation of the certificate, for they follow the words 'and may give such directions as to the costs' etc., i. e., directions consequent on the cancellation of the certificate. It would have been different, if the words 'or make such further or other order' etc., had followed immediately after the words 'admission of the appeal.' In fact this rule supplies direct authority for the dismissal of a petition, the omission of which was relied on in In the matter of the Petition of Soorjmukhi Koer I.L.R. (1877) 2 Cal. 272
6. Section 148, Civil Procedure Code, does not help the petitioners as the words 'by the Court' clearly govern the word 'fixed' as well as the word 'granted,' cf. Musammat Dukhno v. Munshi Sahu. (1919) 4 P.L.J. 428
7. I agree, therefore, with the reasoning in Ram Dhan v. Prag Narain. I.L.R. (1921) 44 All. 216 I gather from the foot-note (3) at p. 2511 of Nand Lal's Code of Civil Procedure that it has been followed by the High Courts of Oudh, Madras and Burma.
8. It is, I think, only if the rule is amended by the Rule Committee with the sanction of Government, so as to give express power such as there is in the first case under the rule that the Court will' be able to exercise its old practice.
9. I do not think there need be any hardship, once litigants realize the position. They ought to be taking steps even when they intend appealing.
10. I concur in the reference to a Full Bench proposed by my learned brother.
11. The reference was heard on January 7, 1927, by a Full Bench consisting of Marten C.J. and Crump and Patkar JJ.
12. K.H. Kelkar, for the applicants. Under the law as it stood before the amendment of Order XLV, Rule 7, of the Civil Procedure Code, by Act XXVI of 1920, it was held that the Court had the power to extend time for giving security. The requirements of the law in this respect were treated as directory only. See Burjore and Bhawani Pershad v. Mussumat Bhagana ; In the matter of the Petition of Soorjmukhi Koer I.L.R. (1877) 2 Cal. 272; and Fazul-unnissa Begam v. Mulo I.L.R. (1884) 6 All. 250. The question for decision now is whether that power of extending time is taken away by implication owing to the amendment made in 1920. The power of extending time was not referable to any section under the Civil Procedure Code; it is inherent in the Court. It is only an administrative matter. The rules relating to giving of security are directory only and not mandatory. The Court, therefore, has still the power to extend time. See Maxwell on Interpretation of Statutes, 6th Edition, p. 649.
13. Further, the Privy Council Rules promulgated by his Majesty on February 9, 1920, provide by its Rule 9 that 'Where an Appellant, having obtained a certificate for the admission of an Appeal, fails to furnish the security or make the deposit required ... the Court may,...cancel the certificate for the admission of the Appeal ... or make such further or other Order in the premises, as in the opinion of the Court, the justice of the case requires.' Thus, apart from the Civil Procedure Code, the Court has the power to enlarge the time under the above rule.
14. The effect of the amendment in Rule 7 of Order XLV is that after the expiration of ninety days, the applicant would not get further time unless he satisfied the Court that he was reasonably diligent. The onus is on him to show that he has been diligent.
15. S.B. Bakhale, for opponent No. 1. The Allahabad case of Ram, Dhan v. Prag Narain I.L.R. (1921) 44 All. 216 is under the rule as amended and should be followed.
16. The legislature has now provided that ordinarily an applicant must furnish security within ninety days ; and that that period can be extended by the Court to sixty days. Thus, the utmost limit of time within which security can be furnished is 150 days. The Court can in no case extend the period beyond the further period of sixty days provided by the rule.
17. Rule 9 of the Privy Council Rules was passed before the amendment of the Civil Procedure Code in 1920. This fact explains the phraseology of the rule. The last portion of the rule 'make other order' refers to incidental orders as to costs etc. and not to the merits of the application.
18. A.G. Desai, for opponent No. 2, referred to Section 112 (b) of the Civil Procedure Code.
19. The referring judgments set out the rival contentions on Order XLV, Rule 7, and I need not recapitulate them.
20. If the view taken by Mr. Justice Shah is correct, then there is power to extend the time under Order XLV, Rule 7, even on the wording of that rule itself. But if the view taken by Mr. Justice Fawcett is correct as to the true construction of that rule, namely, that thereby the Indian legislature intended to fix a prescribed period which could in no event be extended, then a further question arises as to the effect of Rule 9 of the Privy Council Rules passed on February 9, 1920.
21. Now it will be observed that there is no express penalty provided by Order XLV, Rule 7, for failure to furnish security and to deposit the amount for expenses within the time therein mentioned. It is, therefore, in contrast with Order XLV, Rules 10 and 11, which provide in Rule 11 that if the further security required by Rule 10 is not given then the proceedings may be stayed, and the appeal is not to proceed without an order of His Majesty in Council. For any penalty of Order XLV, Rule 7, we must, I think, turn to Rule 9 of the Privy Council Rules, which runs 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.
22. In our opinion that rule standing by itself gives power to the Court to extend the time for furnishing security or making the requisite deposit, although default may have been made under Order XLV, Rule 7. And if that view is inconsistent with the true construction of Order XLV, Rule 7, and with the intention of the Indian legislature, as expressed by Act XXVI of 1920, then we have to refer to Section 112 of the Civil Procedure Code which provides that 'Nothing contained in this 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.' In other words, if and in so far as there is any conflict between Act XXVI of 1920 and Order XLV, Rule 7, as it now stands on the one hand, and the Privy Council Rule 9 on the other hand, then we think the Privy Council Rule must prevail. In this respect it will be noted that the Privy Council Rules were passed, as the preamble shows, in pursuance of the English Act of Parliament, 4 William IV.
23. Under these circumstances, speaking for myself it is not necessary to express my opinion on the true construction of the present Order XLV, Rule 7, apart from Rule 9 of the Privy Council Rules. The referring judgments show that the present Order XLV, Rule 7, is open to considerable doubt, for they arrive at different conclusions as to its meaning. Consequently, with all respect to the opinion expressed in Ram Dhan v. Prag Narain, I.L.R. (1921) 44 All. 216 I am unable to see that the amendment made by Act XXVI of 1920 has been very carefully drafted. However that is a minor point. And I need not, in the view I take of the question submitted to us, do more than refer to the older cases in Burjore and Bhawani Pershad v. Mussumat Bhagana ; In the matter of the Petition of Soorjmukhi Koer I.L.R. (1877) 2 Cal. 272., and Fazul-un-nissa Begam v. Mulo I.L.R. (1884) 6 All. 250 for the Court's decision on Order XLV, Rule 7, prior to the amending Act XXVI of 1920.
24. I would, accordingly, answer the question submitted to us in the affirmative.
25. I agree.
26. I agree.