The Chief Justice.-The only question which arises in this appeal is whether Order 37, rule 4, Civil Procedure Code (hereinafter referred to as the Code) applies to the Original Side of this Court. The respondent filed the suit (C.S.No. 260 of 1948) for the recovery of a sum of Rs. 15,050 alleged to be due for principal and interest in respect of a cheque, dated 9th March, 1948, drawn by the second defendant in favour of the first defendant and endorsed over by her in favour of the plaintiff and which was dishonoured on 18th March, 1948. The suit was filed under the provisions of Order VII, Original Side Rules. No application for leave to defend was made by the defendants within the prescribed time and therefore the Master passed a decree on 22nd September, 1948, for the sum of Rs. 15,462-8-0 with interest thereon at the rate of six per cent. per annum from the date of the decree till date of payment and for the costs of the suit. On 12th January, 1949, the first defendant took out an application purporting to be under section 151, and Order 37, rule 4 of the Code praying that the decree drawn up by the Master on 22nd September, 1948, may in the special circumstances of the case be set aside and leave may be granted to the applicant to appear and to defend the suit on such terms as may be deemed reasonable and just. Yahya Ali, J., dismissed the application in limine on the ground that Order 37, rule 4 of the Code had no application to the Original Side of this Court. The first defendant appeals against this decision.

Learned counsel who appeared before us conceded that the matter was bereft of direct authority and our decision must therefore rest almost entirely on the material provisions in the Original Side Rules and of the Code. It becomes therefore necessary to examine the scope of the application of these two sets of provisions to the Original Side. Clause 37 of the Letters Patent conferred power on this High Court to make rules and orders from time to time

“for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its admiralty, vice-admiralty, testamentary, intestate and matrimonial jurisdiction respectively provided always that the said High Court should be guided in making such rules and orders as far as possible by the provisions of the Civil Procedure Code.”

Part IX of the Code contains special provisions relating to the Chartered High Courts of which this Court is one. Section 117 declares that

“Save as provided in this Part or in Part X or in rules, the provisions of this. Code shall apply to such High Courts.”

An exception is contained in section 120 which enacts that sections 16, 17 and 20 of the Code shall not apply to the High Court in the exercise of its original civil jurisdiction. Under section 122 any of the High Courts may, from time to time, make rules regulating its own procedure and the procedure of the civil Courts subject to its superintendence and may by such rules annul, alter or add to all or any of the rules in the first schedule. Section 129 specially provides for Chartered High Courts. It runs thus:

“Notwithstanding anything in this Code, any High Court constituted by His Majesty by Letters Patent may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.”

Order 49, rule 3 of the Code mentions the rules which shall not apply to any Chartered High Courts in the exercise of its ordinary or extraordinary original civil jurisdiction.

Order 1, rule 3 of the Original Side Rules now in force is as follows:

“The rules and forms mentioned in Appendix III hereto and all previous rules and forms, and the provisions of the Code, so far as such provisions are inconsistent with these rules and forms, are here

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