JUDGMENT

Carr, J - This is an application under Rule 9(2), Appellate Side Rules of Procedure of this Court to restore to the file an appeal struck off under Rule 9(1) for default of payment of process fees.

2. The application was not made within the eight days allowed by Sub-rule (2) and if that rule is intra vires I am in my opinion precluded from considering the application. But it is contended that, in so far as it prescribes a time limit different from that provided in Article 168, Lim. Act, the rule is ultra vires.

3. I think that this contention deserves consideration. The power given to this Court by Section 122, Civil P.C., by the Letters Patent and by Section 108, Government of India Act, is merely the power to regulate its procedure by rules and orders: Ma Than v. Mg Ba Gyaw A.I.R. 1926 Rang. 1. Rule 9(1) is in my view within that power, since whether an appeal is struck off by the Deputy Registrar for default of payment of process fees, or has to be laid before a Judge to be struck off is merely a matter of procedure. But Art 168, Limitation Act, allows an appellant whoso appeal has been dismissed for want of prosecution 30 days within which to apply for its re-admission. Dismissal for want of prosecution includes "striking off for non-payment of process fees" and the restoration of an appeal to the file is the same thing as its re-admission. It would seem therefore that Rule 9(2) operates to reduce the period of limitation allowed by Art, 168, Lim. Act.

4. It has been held in Chunilal Jethabhai v. Barot Dayabhai Amulak [1908] 32 Bom. 14 and in Narsingh Sahai v. Sheo Prasad [1918] 40 All. 1 both Pull Bench cases, that the High Court has no power by any rule that it may make to alter the period of limitation prescribed by the Limitation Act.

5. As the question touches the validity of the rules of this Court it is of considerable importance. I therefore refer the following question for decision by a Bench or by a Full Bench as the Chief Justice may order:

Is Rule 9(2), Appellate Side Rules of Procedure o? this Court ultra vires in so far as it proscribes a period of limitation less than that prescribed in Article 368, Schedule 1, Lim. Act?

OPINION

Page, C.J.

6. The order of reference is as follows:

Is Rule 9(2) of the Appellate Side rules of procedure of this Court ultra vires in so far as it prescribes a period of limitation less than that prescribed in Article 1G8, Schedule 1, Lim. Act?

7. On 6th January 1930, a memorandum of appeal was filed op behalf of the appellant in special civil second appeal No. 8 of 1930. On 8th January the appeal was admitted and on 9th January an order was passed by the Deputy Registrar that the process fees for the issue of notice to the respondent of the date fixed for the hearing be paid before 17th January, and the case duly appeared in the cause list marked in that sense. On 17th January, as the process fees had not been paid, and there was no appearance by the appellant to show cause why an extension of time should be granted, the appeal was struck off by the Deputy Registrar in default of payment of the process fees under Rule 9(1), Order 52. Rule 9 was made by the High Court on 12th February 1929, pursuant to the powers with which it was invested under Section 122, Civil P.C. (Act 5 of 1908) and Clause 35, Letters Patent of 1922. It was as follows:

9(1). Process fees for the issue of notice or notices of the date of hearing to the respondent or respondents shall be deposited within seven days from the date of the order directing such notice or notices to issue. In default of payment thereof within the time allowed, the Deputy Registrar shall strike off the appeal or application for non-payment of process fees, unless for good cause shown, he grants an extension of time. An endorsement over the signature of the Deputy Registrar, to the effect that the appeal or application has been struck off under this rule, shall be made on the memorandum of appeal or application.

(2). On the application made