An appeal under section 47 of the Guardians and Wards Act is governed by Article 156 of the Limitation Act and must be filed within 90 days of the impugned order.

1. This is a mothers appeal under section 47 of the Guardians and Wards Act, 1977(1920 A. D.) against an exparte judgment and order dated November 24, 1970, of the learned District Judge, Srinagar. allowing the application of the respondent under section 25 of the Act and directing the appellant to hand, over custody of her three minor children namely Neera aged 9, Sanjeev aged 6, and Sameera aged 5 to the respondent, who is admittedly the father of the minors.

2. Mr. Sunder Lal appearing on behalf of the respondent has raised a preliminary objection to the effect that the appeal is time barred and should be rejected on that ground. He has urged that the appeal ought to have been filed within 90 days of the passing of the impugned order as required by Article 156 of the State Limitation Act, 1977, which governs the case and since it has been filed on July 1. 1971, it is clearly barred.

3. Mr. S. P. Gupta appearing on behalf of the appellant has, however, contended that Article 156 of the Limitation Act applies only to appeals, the right to file which is given by the Code of Civil Procedure and since the right of appeal in the present case is conferred by section 47 of the Guardians and Wards Act and no period of limitation in respect thereof is prescribed in the Act, the appeal cannot be held to be time barred.

4. We have given our careful consideration to the submission of the learned counsel for the parties and are of the opinion that the preliminary objection raised by Mr. Sunder Lal is sound and must prevail. It is now well settled by a catena of authorities that Article 156 of the Limitation Act is not confined to appeals the right in respect whereof is conferred by the Code of Civil Procedure, but applies even to appeals arising under Special Acts which are governed by the Code of Civil Procedure in so far as procedure is concerned.

5. In Aga Mohamed V. Cohen, ILR 13 Calcutta, 221, a Division Bench of the Calcutta High Court, while dealing with an appeal from the court of the Recorder of Rangoon to the High Court under section 49 of the Burma Courts Act (XVII of 1875) held: --

The Limitation Act, Sch II. Art. 156, when it speaks of the Civil Procedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by-the Code of Civil Procedure so far as procedure is concerned."

6. In Ramaswamy Pillai V. Tehsildar of Madura, AIR 1920 Madras, 407, a Division Bench of the Madras High Court while dealing with the question of the period of limitation for an appeal under section 54 of the Land Acquisition Act (l of 1894) observed as follows: -

"There seems to be no good reason for saying that an appeal under the Civil Procedure Code means only an appeal, the right to prefer which is conferred by the Code itself. On the other hand, it would not be straining the language of the article too much to hold that an appeal, the procedure with regard to which from its inception to its disposal is governed by the Civil Procedure Code, may rightly be spoken of as an appeal under the Code. This interpretation seems to us to be strengthened by the reference in Art. 156 itself to Art. 151 of the same Schedule. Article 151 provides for appeals from a decree or order of the High Court in the exercise of its original jurisdiction. Now, though the right to appeal from such decrees or orders is not given by the Code of Civil Procedure but by the Letters Patent Act, yet Art. 156 speaks of such appeals as appeals under the Civil Procedure Code. That also tends to show that what is meant by the Legislature is appeals, the hearing and disposal of which7 is governed by the rules of procedure laid down in the Civil Procedure Code."

7. Again in Dropadi Versus Hira Lal, 16 Indian Cases, 149. ILR 34 Allahabad. 496 (F. B.) Sir Henry Richards C.J while dealing with an identical question s

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