ORDER
1. This is an application for condonation of the delay in filing this application for restoration of First Appeal No. 370 of 1960. The appeal was dismissed on account of failure of the petitioner appellant Gulabrhand Jain to furnish the security required under Order 41, Rule 10, Code of Civil Procedure. The appeal stood dismissed on the 16th October, 1963. The present application for restoration was filed on the 2nd of March 1964, it is accompanied by a petition under Section 5 of the Limitation Act for condonation of the delay in filing the application for restoration of the appeal. Certain facts have been stated in the application making out sufficient cause for not filing the application for restoration within a period of 30 days from the date of dismissal of the appeal.
2. In course of argument, however, our attention has been attracted to the provision of Section 30 of the new Limitation Act of 1963 which came into force on the 1st of January, 1964. If Clause (b) of Section 30 of the new Limitation Act is held to be applicable in the context of the present case, then it will foe wholly unnecessary for us to consider whether there is any substance in the allegations contained in the petition for condonation of the delay which is opposed by the learned Counsel for the opposite party as being without any merit. Clause (b) of Section 30. so far as it is relevant runs thus:–
“30. Notwithstanding anything contained in this Act:–
x x x x x
(b) any appeal or application …… .may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908 whichever period expires earlier.”
Learned counsel for the opposite party has contended that the present application for restoration is governed by Article 122 of the new Limitation Act which provides for a period of 30 days to restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. The corresponding provision in the Limitation Act of 1908 was Article 168. A comparison of the two provisions makes it clear that Article 168 was in general terms referring to an application for restoration of an appeal dismissed for want of prosecution, but no mention was made therein as to the effect of failure to comply with an order under Order 41, Rule 10 Code of Civil Procedure, which relates to the requirements of furnishing security Cor costs in advance from the respondents. There was some argument as to whether rejection of an appeal for non-compliance with the order of the requirement of Order 41 Rule 10, Code of Civil Procedure, was subject to an order for readmission of the appeal, and further as to whether it was subject to any period of limitation for an application to restore such an appeal. The judicial opinion which came to be crystallised, however, was that an application for restoration of an appeal rejected on account of default on the part of the appellant to furnish security for costs was ascertainable and that such an appeal in a suitable case might be restored. As to the application of Article 168 of the old Limitation Act, however, the position was not clear. The decision of the Calcutta High Court in the case of Goljan Bibi v. Nafar Ali, 40 Ind Cas 234: (AIR 1918 Cal 812) refers to this question but no definite opinion was pronounced upon it and it was held that even if Article 168 did not apply to an application for restoration of an appeal dismissed under Order 41, Rule 10, all the same, the application tor restoration must be made within a reasonable time. It is, no doubt, true that in the ease of G. Sirur v. Mythili Ammal, 61 Mad LJ 688 : (AIR 1932 Mad 170) the opinion expressed by the learned Judges was that an application for restoration was competent but that it was subject to Article 168 of the Limitation Acl, 1908. The view of the Bombay High Court, laying down a contrary opinion with regard to the power of the Court to restore any appeal after it stood dismissed in the exercise of inherent jurisdiction of the court, came to be considered by the Division Bench of this Court in Mrs. Minne Lal v. Mahadeo Lall, AIR 1949 Pat 112. There also following the decision in Sonubai Baburao v. Shivaji Rao, AIR 1921 Bom 20, il was held that where the court is called on to exercise its inherent powers under Section 151 Code of Civil Procedure, that power is not affected by the law of limitation The mere fact that one of the parties had made an application asking the court to exercise the inherent power will not render the action of the court subject to the rule of limitation Reference was made to some other decision as well. It was held that where an application was made for restoration of an appeal dismissed for default to pay the printing cost. Article 168 of the Limitation Act would not apply. Their Lordships distinguished the decision of the Rangoon High Court Abdul Ganny v. I. M. Russel, AIR 1930 Rang 228 (FB) which appeared to lay down a contrary view.
3. Mr. H.L. Agrawal appearing for the opposite party has contended that the decision of this court in Mr. Minnc Lal’s case, AIR 1949 Pat 112 (referred to above) is not applicable inasmuch as, it was & case of dismissal of an appeal on account of failure to comply with an order passed by the court in respect of the printing cost which matter is governed by the Rules of the High Court. That may be so, but the ratio of the decision seems to be somewhat wider, laying down that the mere restoration of an appeal does not stand on the same footing as an application by a party to restore the appeal. It is however, unnecessary for us at this stage to consider this matter as well more elaborately, because the decision of the Madras High Court holding that an application for restoration of an appeal dismissed for default to furnish security under Order 41, Rule 10 Code of Civil Procedure, is also subject matter of the Limitation Act. On examination, it appears not to have taken into account the difference in the language of Order 41 Rule 19 and Order 41, Rule 10. Code of Civil Procedure. The former speaks of dismissal of an appeal whereas the latter speaks of rejection of the appeal which, obviously, would imply the rejection of the memorandum of appeal, which has nol the same effect as dismissal of the appeal, as is clear from the various provisions of the Code of Civil Procedure itself to which a detailed reference again is nol necessary.
The position is well settled. It seems to us, therefore, that Article 168 which relates to the dismissal of appeal cannot be held to be applicable to the case of an application for restoration of the appeal which has been re jected under Order 41, Rule 10, Code of Civil Procedure, on account of default on the parl of the appellant.
4. This leaves us with the position which appears to have been held by this court in AIR 1949 Pat 112 that in such a case there is no period of limitation provided for. It is not necessary, again, to go into the question whether Article 181 would be applicable to such a matter. It seems to us, following the above decision of the Court, that such a situation is governed by the inherent jurisdiction of the Court which may be exercised in a suitable case in favour of the petitioner, if the circumstances will justify restoration of the appeal.
5. If, therefore, the position were as it is, it might be necessary for us to examine the merits of the allegations contained in the application as to whether the delay caused by the petitioner in making the application within a reasonable time can be condoned or not in exercise of the judicial discretion under Section 151, Code of Civil Procedure. Under the present Limitation Act, however, Clause (b) of Section 30 has altered the position, because the new Limitation Act provides for shorter period of limitation for making such an application than what was prescribed in the Limitation Act of 1908, (there being no time limit for it at all), and hence the present application may be made within a period of 90 days next after the commencement of this Act.
M. Agarwal has contended that this clause cannot be held to be applicable to the present case because, in terms, it explicitly provides for the period of limitation of 90 days after the commencement of this Act only in those cases where the period of limitation is shorter than the period of limitation prescribed by the Limitation Act of 1908. If the view which has found favour with us as a basis for the consideration of this clause, i. e. we proceed on the footing that there was no period of limitation prescribed for such a situation Article 168 not being applicable in that case Clause (b) would not apply.
The argument of Mr. Agrawal has got force in so far as the words used in Clause (b) are concerned. As it is however, it appears to us to be just and reasonable that if the period prescribed under the new Act is shorter than the period under the old Act and if in that case, the Legislature thought it proper to confer upon the litigants the privilege of preferring the appeal or making the application within a period of 90 days next after the commencement of this Act, there is no reason why the principle should not apply to such a case where there was no period of limitation provided for whatsoever. We have already stated that if Article 122 of the present Limitation Act would not have specifically made provision for a period of limitation in regard to an application for restoration of appeal rejected under Order 41, Rule 10, Code of Civil Procedure, no occasion would have arisen, whatsoever for consideration of the applicability of Section
30(b). Since, however, now rejection of an
appeal under Order 41, Rule 10, has been distinctly comprehended within the scope of Arti
cle 122, Section 30(b) is naturally attracted to
such a case. It appears to us to be reasonable
to hold that if Clause (b) applies in case of a
period shorter than the period of limitation un
der the present Act, it is all the more reason
able that when there was no period of limita
tion prior to this Act and only now such a
provision has been made for it, Clause (b) of
Section 30 is intended to be applicable to such
a case as well. The present application having
been filed within the period of 90 days from
the commencement of the present Act, it must
be held to have been filed within time. In that
view of the matter, the application under Sec
tion 5 of the Limitation Act appears to have
been superfluous. It has accordingly become
intructuous. The application for restoration
may now proceed the due course to be consider
ed on merits