BHAGWATI, C.J. :- This reference to a Full Bench of seven Judges is necessitated because a question has arisen whether a decision given by a Full Bench of five Judges of the Bombay High Court in Bhuta v. Lakdu, 21 Bom LR 157 : (AIR 1919 Bom 1) (FB) lays down the correct law. The point which has been referred to us for our opinion is, whether the procedure applicable in case of difference of opinion amongst Judges constituting a Division Bench where they are equally divided in opinion in the decision of an appeal from a subordinate Court is governed by Section 98, sub-section (2) of the Code of Civil Procedure, 1908, or Clause 36 of the Letters Patent. The Full Bench of five Judges has taken the view in 21 Bom LR 157 : (AIR 1919 Bom 1) (FB) that in such a case Section 98, sub-section (2) applies and not Clause 36 and this view taken by five Judges of the Bombay High Court is assailed in the present reference. The reference has been made by J. M. Sheth and B. K. Mehta, JJ. on a difference of opinion arising between them in a First Appeal preferred from a decree passed by the Third Joint Civil Judge (Senior Division), Ahmedabad. The two learned Judges differed on a question of fact and arrived at contrary conclusions. Mr. Justice J. M. Sheth was of the view that the decree of the trial Court should be confirmed while Mr. Justice B. K. Mehta was inclined to hold that the decree of the trial Court should be reversed. Now, if Section 98, sub-section (2) were applicable, the result of the difference of opinion between the two learned Judges would be that the decree of the trial Court would have to be confirmed. But, if on the other hand the procedure applicable were governed by Clause 36 the point of difference between the two learned Judges would have to be heard by one or more of the other Judges of the High Court and the decision would follow according to the opinion of the majority of the Judges who have heard the case including those who have first heard it. That might conceivably produce a different result from that reached on an application of Section 98. sub-section (2). The question, therefore, assumes significance as to what is the proper procedure applicable in a case of this kind. Which of the two rival provisions applies : Section 98, sub-section (2) or Clause 36?

2. Now on this question a large multitude of authorities was cited before us. The decisions referred on behalf of the parties ranged over a period of about hundred years and represented conflicting opinions held by different High Courts from time to time. It is not possible to discover any logical consistency in these decisions which may be aptly described in the words of Lord Goddard "as a rough sea of contradictory authorities" and we do not think any useful purpose will be served by indulging in the long and rather tedious exercise of examining this welter of decisions. That would unnecessarily encumber the judgment and instead of helping to elucidate the point at issue serve to confound it by burying it in a mass of authorities. It will be sufficient, in our opinion, if we broadly indicate the categories in which the decisions are capable of being divided and refer only to some of the important decisions, particularly those delivered by the Bombay High Court. But before we proceed to do so," we may first examine the question on principle, unfettered by any decisions of the Bombay High Court or other High Courts and aided only by such pronouncements of the Privy Council and the Supreme Court as bear directly on the interpretation of the relevant statutory provisions and consider for ourselves what is the proper answer to be given to the question referred to us.

3. We may preface the discussion of this question by a brief history of the relevant legislative provisions which fall for consideration. The first Code of Civil Procedure enacted by the Governor-General in Council was Act 8 of 1859. Before this Code of 1859 was enacted, the procedure of the mo