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Sennimalai Goundan Vs. Palani Goundan and anr. and - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.975
AppellantSennimalai Goundan
RespondentPalani Goundan and anr. and ;palani Goundan
Excerpt:
civil procedure code (act v of 1908), section 122, order ix, rule 13 - application to set aside ex parte decree, if covered by section 5 of limitation act--power of high court to make rules extending time--limitation act (ix of 1908), section 5. - .....is that section 122 of the civil procedure code, which deals with the power of high courts to make rules, cannot possibly enable them to make rules which have the effect of altering the limitation act, on the ground that their only power is to alter the procedure, their own procedure or the procedure of subordinate courts, and that to alter the period of limitation prescribed by another statute is outside the scope of section 122, and, therefore, ultra vires. i am unable to accede to that argument. i have always thought it unfortunate that the indian limitation act deals in one statute, and apparently as matters entirely pari passu, with things so different as the limitation of the number of years within which a suit can be brought and the fixing of so many days or so many weeks as.....
Judgment:

Coutts Trotter, J.

1. This was a petition originally to set aside an ex parte decree. The learned District Munsif held that there was good cause for excusing the petitioner being out of time under the Limitation Act and set aside the ex parte decree. When this case was first argued, it was pointed out that Order IX, Rule 13 of the Civil Procedure Code, did not provide that Section 5 of the Limitation Act which gives discretion to extend time should apply. It is quite clear that Section 5 of the Limitation Act as it stands does not, and cannot, possibly extend the applications to set aside ex parte decrees. But it has since been pointed out to me that the High Court has now added to Order IX, Rule 13, a Sub-rule (2) to this effect. 'The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under Sub-rule (1).' That prima facie is an end of the case. But the argument for the petitioner is that Section 122 of the Civil Procedure Code, which deals with the power of High Courts to make rules, cannot possibly enable them to make rules which have the effect of altering the Limitation Act, on the ground that their only power is to alter the procedure, their own procedure or the procedure of Subordinate Courts, and that to alter the period of limitation prescribed by another Statute is outside the scope of Section 122, and, therefore, ultra vires. I am unable to accede to that argument. I have always thought it unfortunate that the Indian Limitation Act deals in one Statute, and apparently as matters entirely pari passu, with things so different as the limitation of the number of years within which a suit can be brought and the fixing of so many days or so many weeks as the limit within which interlocutory and other applications should be launched. But there it is certainly. Whatever may be the case of the Statute prescribing say three years for an action to be brought, I am quite clear that the Articles in the Act limiting applications of this nature which are almost entirely interlocutory deal clearly with matters of procedure; and, therefore, the High Court has jurisdiction under Section 122 to make the addition to Order IX, Rule 13. The petitions fail and must be dismissed, but in the circumstances each party will bear its own costs.


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