1. The only question which arises in this appeal is whether Order 37, Rule 4, Civil P. C. (hereinafter referred to as the Code) applies to the original side of this Ct. The resp. filed the suit (C. S. No. 280 of 1948) for the recovery of a sum of Rs. 15050 alleged to be due for principal& interest in respect of a cheque dated 9-3-1948 drawn by deft. 2 in favour of the deft. 1 & endorsed over by her in favour of the pltf. & which was dishonoured on 18-3-1948. The suit was filed under the provisions of Order 7, Original Side Rules. No application for leave to defend was made bythe defts. within the prescribed time & therefore the Master passed a decree on 22-9-1938 for the sum of Rs. 15462-8-0 with interest thereon at the rate of six per cent per annum from the date of the decree till date of payment & for the costs of the suit. On 12-1-1949 deft. 1 took out an application purporting to be under Section 151 & Order 37, Rule 4 of the Code praying that the decree drawn up by the Master on 22-9-1948 may in the special circumstances of the case be set aside & leave may be granted to the appct. to appear & to defend the suit on such terms as may be deemed reasonable & just. Yahya Ali, J. dismissed the application 'in limine' on the ground that Order 37, Rule 4 of the Code had no application to the Original Side of this Ct. Deft. 1 appeals against this decision.
2. The learned counsel who appears before us conceded that the matter was bereft of direct authority & our decision must therefore rest almostentirely on the material provisions in the Original Side Rules & of the Code. It becomes therefore necessary to examine the scope of the application of these two sets of provisions to the Original Side. Clause 37 of the Letters Patent conferred power on this H. C. to make rules & orders from time to time
'for the purpose of regulating all proceedings in civil cases which may be brought before the said H. C., including proceedings in its admiralty, vice admiralty, testamentary, intestate & matrimonial jurisdiction respectively provided always that the said H. C. should be guided in making such rules & orders as far as possible by the provisions of the Civil P. C.'
3. Part IX of the Code contains special provisions relating to the Chartered H. Cs. of which this Ct. is one. Section 117 declares that 'Save as provided in this Part or in Part X or in rules the provisions of this Code shall apply to such H. Cs.'
4. An exception is contained in Section 120 which enacts that Sections 16, 17 & 20 of the Code shall not apply to the H. C. in the exercise of its original civil jurisdiction. Under Section 122 any of the H. Cs. may, from time to time, make rules regulating its own procedure & the procedure of the civil Cts.subject to its superintendence & may by such rules annul, alter or add to all or any of the rules in Sch. 1. Section 129 specially provides for Chartered H. Cs. It runs thus:
'Notwithstanding anything in this Code, any H. C. constituted by His Majesty by Letters Patent may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, & nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'
Order 49, Rule 3 of the Code mentions the rules which shall not apply to any chartered H. Cs. in the exercise of its ordinary or extraordinary original civil jurisdiction.
5. Order 1, Rule 3 of the Original Side Rules now in force is as follows:
'The rules & forms mentioned in Appendix III hereto & all previous rules & forms, & the provisions of the Code, so far as such provisions are inconsistent with these rules & forms, are hereby repealed & superseded & the following rules, orders & forms shall stand in lieu thereof' (The Code must mean the Civil Procedure Code).
6. Order 37 of the Code relates to summary procedure, applicable to suits on negotiable instruments such as bills of exchange, hundies or promissory notes. All suits upon such documents may in case the pltf. desires to proceed under the provisions of that order be instituted by presenting a plaint in a particular prescribed form. Under Order 37, Rule 2, Sub-rule (2) in any case in which the plaint is filed under that order, the deft. shall not appear or defend the suit unless he obtains leave from a Judge as provided in that order so to appear & defend. In default of his obtaining such leave or of his appearance & defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted & the pltf. shall be entitled to a decree.
7. Rule 4 of that order runs thus,
'After decree the Ct. may, under special circumstances, set aside the decree, & if necessary, stay or set aside execution, & may give leave to the deft. to appear to the summons & to defend the suit, if it seems reasonable to the Ct. so to do, & on such terms as the Ct. thinks fit.'
Rule 7 provides that save as provided by that order, the procedure in suits filed under the provisions of that order shall be the same as the procedure in suits instituted in the ordinary manner.
8. The rules made by this Ct. which were in force immediately before the Rules now in force contained a separate order. Order VI A, dealing with procedure on negotiable instruments, corresponding to Order 37 of the Code. One rule in that order expressly laid down that the procedure prescribed by Order 37 of the Code shall be followed in all suits on negotiable instruments in the modification mentioned in that order. But in 1932, a new order, Order VII was substituted in place of Order VI-A. This order considerably enlarged the scope of the application of the summary procedure. It was made applicable not only to a suit on a negotiable instrument but also to a suit to recover a debt or liquidated demand in money payable by the deft. with or without interest arising on a contract or a bond or a guarantee. Rule 2 expressly excludes the ordinary procedure in regard to suits specified in Rule 1 of that Order. Suits falling under Rule 1 have to be instituted under that Order. There is no option to the pltf. in such suits. Rule 4 confers power on the Registrar to extend the period of ten days for applying to obtain leave to appear & defend. If leave to appear & defend is not granted, the Master shall on proof by affidavit of service of the summons on the deft. pass adecree for the amount claimed & costs. There is no provision in that order corresponding to Order 37, Rule 4 of the Code.
9. The main contention of the learned counsel for the applt. was that all the provisions in the body of the Code & in the rules in the first schedule of the Code apply to the Original Side of this Ct. unless they are excluded from application or unless they are superseded by rules made by this Ct. He conceded that if in respect of the same subject matter there were two rules, one in the Code & another in the Original Side rules, inconsistent with each other, then the rule made by this Ct. on the Original Side would apply. But he urged that where the Original Side rules were silent in respect of any matter, then the rule in the Code relating to it would apply to the Original Side. In support of this contention he relied upon the decision of Venkatasubba Rao J. in 'Yelumalai v. Kuppammal', 54 MLJ 263. The learned Judge held that Rules 10 & 11 of Order 33 of the Code were applicable to suits by paupers filed on the original side of the H. C. After a consideration of the various relevant provisions he observed:
'The result of these various provisions is that the Code of Civil Procedure is generally applicable to the H .C. in the exercise of its ordinary originalcivil jurisdiction, except where it is specificallyexcluded or unless the H. C. itself has made rules superseding any particular provisions of the Code.'
Now, the application of Order 37, Rule 4 has not been specifically excluded by the Code itself. Order 49, Rule 3 of the Code does not mention Order 37, Rule 4 among the rules declared not applicable to theOriginal Side. The argument is that it follows that it is applicable to the Original Side. For a general application of the provisions in the Code to the Original Side reliance was placed on the decisionin 'Ashutosh v. Sudhangabhushan Mukherjj', 58 Cal 510 , which held that Order 21, Rule 89 of the Code applied to a sale under a mortgage in a suit filed on the Original Side of the Calcutta H. C. (Videalso 'Virjivan Das Moolji v. Biseswar Lal Hargobind', 48 Cal 69. Applt's counsel referred us to the decision in Beheman Jung (Nawab) v. Haji Sultan All Shustry', 37 Bom 572, as dealing with a rule made by the Bombay H. C. whichwas inconsistent with the provisions of the Code & therefore prevailed over the latter. This decision was explained by Beaumont C. J. in 'Pratapgir Narsingji v. The Official Liquidator of the Prahlad Mills, Ltd.', ILR (1938) Bom 399, in which' it was held that Order 41, Rule 10 did apply to appeals on the original side.
10. There is no doubt that there is neither specific exclusion nor repeal of Order 37, Rule 4 so far as the original side is concerned to be found either in the Code or in the Original Side Rules. Yahya Ali J. was inclined to hold that the adoption of a few of the rules under Order 37 & a deliberate avoiding the adoption of the rules including Order 37, Rule 4 by compelling implication amounts to a repealof the portions not adopted. After a careful consideration, we have arrived at more or less the same conclusion. We may describe the result thus: Order 37 of the Code lays down a summary procedure for suits on negotiable instruments which may be availed of by a pltf. Order VII of the Original Side rules deals with the same topic generally, but differs in material particulars from Order 37 of the Code in its scope. As we have already mentioned, Order 37 of the Code deals only with suits on negotiable instruments, whereas Order VII Original Side rules applies to other suits also on debt & liquidated demands. While Order 37 of the Code giyes the pltf. an option, Order VII of the Original Side Rules compels the pltf. to resort to the procedure prescribed therein. While there is no provision inOrder 37 of the Code for enlargement of time over & above ten days for applying & obtaining leave to defend, there is provision in Order VII of the Original Side Rules for extension of time by the Registrar. Having regard to all these vital differences, it is clear that Order VII of the Original Side Rules supersedes & stands in lieu of Order 37 of the! Code.
11. Yahya Ali J. discovered a plausible reason for the absence of a provision like Order 37, Rule 4 of the Code in the Original Side rules. We do not think we are called upon to find any justification for the omission. We can imagine cases in which the power of the Registrar to extend time under Order VII, Rule 4 read with Order IV, Rule 6 of the Original Side Rules may not be sufficient to give adequate relief. We are however not concerned with the hardship that might occur in special cases. We do not see why, if this Ct. chooses, a provision corresponding to Order 37, Rule 4 of the Code should not be included in Order VII of the Original Side Rules. But as Order VII now stands, we think that in regard to suits coming within the scope of that order, Order 37, Rule 4 of the Code can have no application.
12. The learned counsel for the applt. pointed to the fact that Order VII of the Original Side Rules was only concerned with the procedure upto the passing of the decree but was silent as to what happened after that stage & he contended therefore that Order 37, Rule 4 of the Code could not be deemed to have been repealed or superseded. We are of opinion that though the argument appears plausible, it is not sound. Order 37, Rule 4 of the Code relates to the summary procedure laid down under that Order just as any other rule in that order. Whether before or after the decree, the peculiar features of this procedure is obtaining leave of the Ct. to appear & defend. While Order 37 of the Code permits the deft. to obtain such leave even after the decree in special circumstances, Order VII of the Original Side Rules does not so permit him.
13. The appeal fails & is dismissed with costs.