William Ayling, J.
1. This second appeal comes before us for orders with reference to Rule 105 of the Appellate Side Rules. The appoints admittedly failed to make the necessary deposit for printing papers as required by the rules within the time allowed: and in our order on Civil Miscellaneous Petition No. 2329 of 1915 we have declined to extend the time. Under the rule, the appeal is, therefore, liable to be dismissed.
2. It has, however, been argued that the latter part of the rule itself (Rule 105) is ultra vires. The rule runs thus:
The appeal shall be liable to be dismissed for default of prosecution, if any of the papers mentioned in this rule have not been printed owing to the appellant's failure to make the necessary deposit therefor.
3. The rule, as it stands, has been in force since 1905 and has frequently been enforced by dismissal of appeals. Even in 1905 it was in no sense a novel provision. A similar penal clause is found in the rules as far back as 1879, though it is omitted or modified in the rules as re-issued between 1900 and 1905. No authority whatever has been quoted in support of the contention that it is ultra vires, and so far as I am aware its validity has never hitherto been questioned.
4. It is, in my opinion, undoubtedly covered by Section 37 of the Letters Patent, which gives this Court power to make rules and orders for the purpose of regulating all proceedings in Civil cases which may be brought before the said High Court.'
5. Our attention was drawn to the proviso, which enacts that in making such rules and orders the High Court shall be guided as far as possible by the provisions of the Civil Procedure Code. 1 cannot accept this argument that the rule contravenes the provisions of the Code by limiting the right of appeal conferred by Section 100 of the Code of Civil Procedure: and I do not think there is much force in the contention that it is at variance with the provisions of Order XLI (reproducing Section 541 et seq. of the old Code) as to the manner of disposal of an appeal. There seems to be no reason why an order of dismissal for infringement of this rule should not be covered by either Rule 11(1) or Rule 16 of Order XLI of the Civil Procedure Code. Which of these would be applicable would depend on the procedure followed by the Appellate Court prior to the time of default. In the present case notice has issued under Rules 13 and 14, respondents have been served and appearance has been filed for two of them (respondents Nos. 3 and 4). The appeal has not been posted under, Rule 12 for disposal on its merits, appellant having made default in payment of printing charges while respondent was being served with notice. Rule 16 would, therefore, appear to be applicable. But under either rule the dismissal would appear to be legal. Each, gives appellant a right to be heard in support of the appeal, but where the appeal is liable to be dismissed on a preliminary-ground, he cannot demand a hearing on the merits of the appeal.
6. The penal proviso in the rule under consideration appears to be substantially-identical with that embodied in the rules of the Calcutta High Court, Part II, Chapter VIII, Rule 17, and Chapter IX, Rule 5. The former clause (Rule 17) was the subject of consideration in two cases Ramhari Sahu V. Madan Mohan Mitter (1628) Palm. 536 : 81 E.R. 1208 and Fatimtunissa v. Deoki Pershad 24 C. 350 . The immediate question was the nature of the remedy available to an appellant whose appeal had been dismissed for default but it is to be observed that throughout the argument in each case no doubt appears to have been felt as to the validity of the rule.
7. In my opinion Rule 105 is not ultra vires.
8. I would direct the dismissal of the appeal with costs.
9. I agree.