1. The petitioners ask for a certificate under Article 133(1) of the Constitution of India for the purpose of a proposed appeal to the Supreme Court against a judgment and decree of this Court, dated the 18th of March, 1954. Their application was made on the 12th of September, 1957. Mr. Sen Gupta, who appears for them, admits that even after credit has been given tohis clients for the time taken for obtaining certified copies of the judgment and the decree, their application is too late by three years and eleven days, if Article 179 of the Limitation Act applies. He, however, contends that the Article does not apply.
2. In support of his contention, Mr. Sea Gupta relies on the language of Article 179. That Article prescribes the period of limitation for an application for leave to appeal to the Supreme Court and the period prescribed is ninety days from the date of the decree appealed from. The first column of the Article, however, describes the appeal contemplated by it as an appeal 'by a person desiring to appeal under the Code of Civil Procedure, 1908, to the Supreme Court'. Mr. Sen Gupta's contention is that the Article, by reason of its own language, can apply only to appeals preferred under the Civil Procedure Code, but the appeal which his clients propose to prefer to the Supreme Court is not an appeal under the Code of Civil Procedure, but an appeal under Article 133 of the Constitution itself. He points out that no period of limitation has been prescribed anywhere for an appeal by a person desiring to appeal to the Supreme Court under the Constitution of India and the consequence, according to him, is that the right to prefer such appeals is timeless.
3. I find it wholly impossible to accede to Mr. Sen Gupta's contention. Although Article 133 of the Constitution provides for appeals to the Supreme Court from judgments, decrees or final orders passed in civil proceedings, the Civil Procedure Code also contains provisions relating to such appeals in Sections 109 and 110 thereof. Leaving aside the special class of appeals contemplated by Article 135 of the Constitution, and appeals by special leave, the right of appeal from all appealable judgments, decrees and orders passed in civil proceedings is conferred by Article 133. If the provisions in the Civil Procedure Code would not apply to such appeals, it is impossible to see to what appeals they would apply. The contention of Mr. Sen Gupta, if given effect to, will lead to the extraordinary result that for appeals from judgments, orders and decrees made in civil proceedings which are appealable under Article 133 of the Constitution, there is no period of limitation at all. Again, the provisions of Sections 109 & 110 of the Civil Procedure Code will be reduced to nullities, because they will not be applicable to any conceivable class of appeals, if the position is, as Mr. Sen Gupta contended, that the appeals contemplated by those sections are appeals other than those contemplated by Article 133.
4. To my mind, the true position is that while the right of appeal is given by the Constitution and given by way of defining the jurisdiction of the Supreme Court, the procedure for preferring and prosecuting such appeals is laid down in the Civil Procedure Code. In so far as the Code also contains provisions relating to the right of appeal and in so far as Sections 109 and 110 lay down in what cases an appeal shall lie, there may be as I have pointed out elsewhere, a duplication. That, however,does not involve the consequence that appeals contemplated by Article 133 of the Constitution are not governed by the Code. In my view, an appeal to the Supreme Court from a judgment, decree or order passed in a civil proceeding is an appeal under the Civil Procedure Code as well.
5. How the provisions of the Constitution and those of the Civil Procedure Code are intended to stand alongside one another will perhaps appear if one compares the language of the Constitution with that of the Code. It is true that the language of both Article 133(1) and Section 109 of the Code is that 'an appeal shall lie to the Supreme Court'. But how these appeals are to be preferred and what the subsequent procedure governing them shall be is laid down in Order 45 of the Code. Rule 2 of that Order says that 'whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.' For the present purpose I need not refer to any other rule of the Order. Turning now to Article 179 of the Limitation Act, it speaks of a person ''desiring to appeal under the Code of Civil Procedure * * * to the Supreme Court.' It will be noticed that the language of Rule 2 of Order 45 and that of Article 178 is the same, because both speak of a desire to appeal to the Supreme Court. If by reason of the provision of Rule 2 of Order 45, a person desiring to appeal to the Supreme Court must proceed in the particular manner laid down in that provision of the Code, it seems to me perfectly clear that where a person desires to exercise his right of appeal to the Supreme Court, that desire must necessarily be a desire to appeal under the Code of Civil Procedure, that is to say, to proceed in accordance with the provisions of the Civil Procedure Code for the purpose of making his appeal. It would thus seem that Article 179 applies by its language directly to appeals to the Supreme Court from judgments, orders or decrees passed in Civil Proceedings.
6. If I may explain the matter a little further, when a person forms a desire to avail himself of his right of appeal under Article 133 of the Constitution and wants to act on that desire, he must betake himself to the Code in order to bring an appeal into existence. The Constitution only gives the right of appeal but does not provide how the right is to be enforced or exercised. It is in the Code that provisions in that behalf can be found. While therefore, in law, an appeal to the Supreme Court lies under the Constitution, in fact such an appeal has to be made under the Code by taking the steps there prescribed. It follows that a person desiring to appeal to the Supreme Court under the Constitution in a Civil matter, must, if his desire is not to remain a 'mere wish, simultaneously desire to make his appeal under the Code. The two desires are inseparable; and quite logically, the Limitation Act. which is not concerned with the abstract right of appeal but only with actual proceedings for enforcing such right, takes note of only the second desire and speaks of that desire alone.
In doing so, it does not speak of appeals other than appeals under the Constitution.
7. Mr. Biswas, who appears for the respondents, drew our attention to Rule 1 of Order 12 of the Supreme Court Rules. That Rule provides that subject to any special directions which the Supreme Court may give in any particular case, the provisions of Order 45, of the Code and of any rules made for the purpose by the High Court, so far as may be applicable, shall apply in relation to appeals preferred under, inter alia, Article 133(1) of the Constitution. That Rule only repeats what Order 45 provides and although it does throw some light as to the relationship between appeals to the Supreme Court and the Code of Civil Procedure, I think the considerations to which I have referred earlier are sufficient for negativing Mr. Sen Gupta's contentions.
8. There is no prayer in the present application for condonation of delay. The application has been framed as if the petitioners were not out of time and that was consistent with, the view pressed before us by their legal adviser. The matter was placed before us because the Office noted the lapse of time between the date of the decree and the date on which this application was filed and thereupon the matter was set down for hearing on the question of limitation.
9. In my view, for the reasons I have already given, Mr. Sen Gupta's contention is not right and this application, on his own showing, is out of time by over three years. No prayer has been made for condonation of the delay and, on the facts of the case, no such prayer could be made.
10. The application must, therefore, be dismissed with costs, the hearing-fee being assessed at three gold mohurs.
11. I agree.