JUDGMENT

Bennet, Ag. C.J.

1. This is a reference by the Small Cause Court Judge of Saharanpur of the following point for the decision of this Court:

Whether an endorsement; of payment made at the back of a pro-note more than three years after its execution but during the close holidays of the Civil Courts which had begun prior to the completion of three years period gives a fresh start of limitation u/s 20 read with Section 4, Limitation Act?

2. The reference was laid before a Bench of two Judges and those Judges decided on 9th August 1937 that there were conflicting rulings on the point:

Accordingly we direct that this case be laid before the Hon'ble the Chief Justice with the request that he be pleased to constitute such a Bench (a larger Bench) for the decision of the question involved in the reference.

3. Under the High Court Rules Ch. 1, Rule 3-A, a Bench was constituted of three Judges by order of 6th September 1937. Before that Bench assembled, a similar point of limitation had been the subject of a decision by a Full Bench which is reported in L. Shanker Lal and Another Vs. Rana Lal Singh and Another . This decision was made on 5th January 1938, and reported in February. The learned Judges who constituted the Full Bench in the present case made a brief order on 25th April 1938. They stated that there was a difference of opinion and that opposite views had been expressed by a Full Bench of Madras and by a Full Bench of the Lahore High Courts, and there had recently been a decision by a Full Bench of this Court that is in consonance with the view taken by the Lahore High Court:

It is not unlikely that there may be difference of opinion even amongst the Judges constituting this Bench Accordingly we consider that it is desirable that the present reference be decided by a Full Bench of five Judges. We therefore direct that the case be put before the Hon'ble the Chief Justice with the request that be may be pleased to constitute a Full Bench of five Judges.

4. This matter was accordingly laid before the Acting Chief Justice on 30th July 1938 and he passed an order of 1st August 1938. This order sets out that since the reference was made to three Judges there has been a Full Bench decision of this Court, and therefore it appeared necessary that the case should again go before a Bench of two Judges to decide whether it was necessary that there should be a Full Bench on the point. Accordingly this case has been listed before this Bench to-day for decision of this matter and this Bench was authorized to reply to the reference or otherwise direct. When the case opened, learned Counsel for the plaintiff took an objection to the jurisdiction of this Bench. His allegation was that the Full Bench of three Judges had been constituted by the order of 6th September 1937 and that that Full Bench of three Judges still had jurisdiction, and further that the Chief Justice had only authority to appoint a Bench of five Judges. Now this is a view which does not appear to us to be sound. We consider that by the order of 25th April 1938 the Bench of three Judges terminated their jurisdiction. u/s 108, Government of India Act of 1919, which has been continued in force by Section 223, Government of India Act of 1935, there is power given to the High Court by its rules to provide for the exercise, by one or more Judges, or by Division Courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the Court, and that the Chief Justice should determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts. Now in accordance with that Section this High Court has framed rules, one of which is in Ch. 1, Rule 3-A as follows:

The Chief Justice may constitute a Full Bench of three or more Judges either to decide a case or to decide any question or questions of law formulated by a Court hearing a case; and in th