1. The question which has been referred to us may be stated thus:
In an appeal to His Majesty in Council, has the Court power to extend the time for furnishing the security and making the deposit required by Order 45, Section 7, Civil P.C., beyond the period mentioned therein
2. Order 45, Rule 7 enjoins that:
Where the certificate is granted, the applicant shall, 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 Inter date,
(a) furnish security in cash or in Government securities for the costs of the respondent, and
(b) deposit the amount required to defray the expenses of translating, transcribing, indexing and transmitting to His Majesty in Council a correct copy of the whole record....
3. Order 45, Rule 7 was subject to an amendment by Act 26 of 1920. This amendment substituted the words 'within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow' for the words 'within six months.' The object of the amendment was to expedite appeals to the Privy Council by the restriction of the Court's discretion in granting extensions of time within which to comply with the provisions of the rule in regard to the furnishing of security, etc. Prior to 1920 the Courts, it appears, had boon liberal in the exercise of their discretion. The Privy Council had recognised that the Courts had such a discretion : see Burjore v. Bhagana (1884) 10 Cal. 557. The amendment of the rule came into force on 1st January 1921, at the same time as certain rules which were framed by the Privy Council. These rules, it is apparent from the Preamble, were intended to prevent delays in the making of appeals in His Majesty's Privy Council. Rule 9 of the Privy Council rules is 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 au 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.
4. Now it will be observed that this rule authorizes the High Courts in India, where the appellant has failed to furnish the security or make the deposit required, to cancel the certificate for the admission of the appeal. No such sanction was or is provided by Order 45, Rule 7. It is further to be observed that Rule 9 allows the High Courts a certain discretion. If the appellant has failed to furnish the security or make the deposit within the specified period, the Court 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.
5. This discretion conferred by the closing words of the rule is undoubtedly a very wide one. Now by Order 45, Rule 7 as amended, the discretion of the High Court to extend the time within which the security must be furnished or the deposit made has been limited. Beyond a certain period the Court has no discretion at all. That the Legislature intended to limit the discretion of the Court in the matter of extending the time is, in our judgment, abundantly plain. The argument that the restriction of the discretion refers only to the period of sixty days from the date of the decree complained of and not to the six weeks from the date of the certificate must fail. Such an interpretation would manifestly defeat the clear intention of the amendment.
6. The position therefore is that there is a provision in the Code of Civil Procedure which restricts the discretion of the Court in extending the time within which the security must be furnished and the deposit made on the one hand, and a rule of the Privy Council which confers upon the Court a very wide discretion upon the other. Now Section 112 (1)(b), Civil P.C., enacts that nothing contained 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.
7. In Bahadur Lal v. Judges of the High Court, Allahabad : AIR1933All241 it was held by Mukerji, A.C.J. and King, J., Niamat-ullah, J. dissenting, that the Court had no discretion under Rule 9, Privy Council Rules to extend the period prescribed by Order 45, Rule 7. A Full Bench of the Madras High Court in Ramayya v. V. Lakshmayya (1938) 25 A.I.R. Mad. 796 held that the High Courts in India had power under Rule 9 to extend the period allowed for furnishing the security and making the deposit required by Order 45, Rule 7, Civil P.C. Further, a Pull Bench of the Bombay High Court in Nilkanth Balwant v. Satchidanand Vidya Harsinha Bharati (1927) 14 A.I.R. Bom. 217 held that in virtue of Rule 9 the High Courts had such a discretion. In the course of his judgment in that case Marten, C.J., observed that there was no inconsistency between Order 45, Rule 7 and Rule 9, Privy Council Rules and that the Privy Council Rules must prevail by virtue of the provisions of Section 112. Benches of the Rangoon, Calcutta, Patna and Lahore High Courts and of the Oudh Court have taken the opposite view. In our judgment the provisions of Rule 9 which are wide and general in their terms do confer upon the High Courts a discretion to extend the time prescribed by Order 45, Rule 7, Civil P.C., a discretion however which is only to be used in exceptional circumstances. It will be observed that the power conferred by the rule to cancel the certificate is not mandatory. 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. It is clear, in our view, that the intention of the framers of the rule was to leave a discretion with the High Courts in regard to the order to be passed upon failure, by the appellant, to furnish the security or make the deposit within the time specified by the Civil Procedure Code. Nothing could be wider in import than the provision 'or make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires'.
8. It must be apparent that if the High Courts were left with no discretion in the matter, injustice would not infrequently result. If for example the appellant within the time prescribed in good faith furnished a security which prima facie was sufficient but which after prolonged investigation was found insufficient, a cancellation of his certificate without affording him the opportunity of furnishing additional security would be manifestly unjust. We do not doubt however that it was the intention of the framers of the rule that the discretion with which the High Courts are thereby vested should be exercised only in exceptional circumstances and where an extension of time beyond the time specified in Order 45. Rule 7 is clearly supported by considerations of justice and equity. In the result we hold that this Court has power under Rule 9, Privy Council Rules to extend the period allowed for furnishing the security and making the deposit required by Order 45, Rule 7, Civil P.C., beyond the periods mentioned therein.