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PETITIONER: VIDYACHARAN SHUKLA

       Vs.

RESPONDENT: KHUBCHAND BAGHEL AND OTHERS

DATE OF JUDGMENT: 20/12/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR 1099            1964 SCR  (6) 129  CITATOR INFO :  E          1969 SC 872  (17)  R          1970 SC1477  (6)  F          1974 SC 480  (11,3,14,16)  RF         1977 SC  56  (6)  RF         1989 SC1477  (12)

ACT: Election-Appeal  to  High Court under  s.  116-A-Whether  in computing period of limitation for filing an appeal to  High Court, time provided by s. 12 of Limitation Act for  getting a  copy  of the order can be  excluded-Whether  s.  29(2)(a) applied  to  cases  of  appeal  preferred  under  s.  116-A- Relationship between the two limbs of s. 29(2) of Limitation Act-Limitation  Act, 1908 (9 of 1908), ss. 12, 29(2),  First Schedule,  Art, 156-Representation of the People  Act,  1951 (43 of 1951), v. 116-A.

HEADNOTE: The appellant was elected to the House of the People from  a constituency   in   the  State  of  Madhya   Pradesh.    The respondents   were   the   ,other   contesting   candidates. Respondent No. 1 filed an election petition challenging  the election  of  the  appellant.  That  election  petition  was dismissed  by the Election Tribunal.  Against the  order  of the TribunaL the first respondent preferred an appeal to the High Court under s. 116-A 134-159 S.C.-9. 130 of the Representation of the People Act, 1951.   Admittedly, the  appeal was filed more than 30 days after the  order  of the Election Tribunal.. If the time requisite for  obtaining a copy of the order of the Tribunal was excluded, the appeal was  filed within 30 days.  However, if that was not  ’done, the appeal was out of time.  The contention of the appellant before the High Court was that the respondent No. 1 was  not entitled  in  law  to  exclude the  time  taken  by  him  in obtaining  the  copy  of the order of  the  Tribunal.   That contention  was rejected by the High Court.  The High  Court also  found  that the appellant was guilty of  two,  corrupt

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practices  and  hence  his  election  was  set  aside.   The appellant came to this Court by special leave. The  only question raised before this Court was whether  for ’the  purpose of computing the period of 30 days  prescribed under s. 116-A(3) of the Act, the provisions of s. 12 of the Limitation  Act  could be invoked or  not.   Dismissing  the appeal, Held:  (per B. P. Sinha, C.J., K. Subba Rao, Raghubar  Dayal and N.    Rajagopala Ayyangar JJ.) (i) The exclusion of time provided for by s. 12 is permissible in computing the period of limitation for filing.the  appeal in the High Court. Per  B.  P.  Sinha, C.J., K. Subba  Rao  and  N.  Rajagopala Ayyangar  JJ.) (ii) Though the right of appeal is  conferred by  s. 116-A of the Representation of the People Act,  1951, and  it  is by virtue thereof that the appeal was  filed  by respondent in the High Court, it is still an appeal "  under the  Code of Civil Procedure, 1908, to the High Court".   To attract  Art.  156 of the First Schedule to  the  Limitation Act,  it  is not necessary for an appeal to  be  an  "appeal under the Code of Civil Procedure" that the right to  prefer the  appeal  should  be  conferred  by  the  Code  of  Civil Procedure.  It is sufficient if the procedure for the filing of  the appeal and the power of the Court for  dealing  with the appeal, when filed, are governed by the Code. Per  Raghubar Dayal and Mudholkar JJ.--There is  no  warrant for holding that an appeal which is not given by the Code of Civil  Procedure  is still an appeal under the  Code  merely because its procedural provisions govern its course.   Where a  right  of appeal is given by some other law,  the  appeal must  be  regarded as one udder that law and not  under  the Code of Civil Procedure.  There is no reason for  construing the  words  "under the Code of Civil Procedure"  as  meaning "governed  in the matter of procedure by the Code  of  Civil Procedure". Held:(iii)  (per B. P. Sinha, C.J., N.  Rajagopala  Ayyangar and  Raghubar Dayal JJ.) The entire sub-s. (2) of s.  29  of the  Limitation.  Act  has  to  be  read  as  an  integrated provision  and the conjunction "and" connects the two  parts and  makes  it  necessary for attracting cl.  (a)  that  the conditions  laid  down by the opening words  of  sub-s.  (2) should be satisfied. 131 Per  Subba Rao and Mudholkar JJ.-The second limb  of  sub-s. (2) of s. 29 is wide enough to include a suit, appeal or  an application under a special or local law which is of a  type for which no period of limitation is prescribed in the First Schedule. Per  Subba  Rao J.-The use of the word "any"  clearly  shows that the second part of sub-s. (2) of s. 29 does not  depend on the first part or vice versa.  The second part of  sub-s. (2) is an independent provision providing for that  category of proceedings to which the first part does not apply. Held:  (i) that s. 116-A does not provide an exhaustive  and exclusive  code  of limitation for the  purpose  of  appeals against  orders of Tribunals and also does not  exclude  the general provisions of the Limitation Act.  Section  29(2)(a) of the Limitation Act speaks of express exclusion and  there is no express exclusion in s. 116-A(3) of the Representation of  the People Act, 1951.  Moreover, the proviso to s.  116- A(3)  from which an implied exclusion is sought to be  drawn does  not  lead  to any  such  necessary  implication.   The proviso only restores the power denied to the Court under s. 29(2)(b)  of  the Limitation Act.  If this proviso  had  not been there, s. 29(2)(b) would have excluded the operation of s.  5 of the Limitation Act with the result that even  if  a

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sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. (ii)S. 12(2) of the Limitation Act applies to an appeal  to the High Court against the order of the Tribunal.  An  order made  under s. 98 of the Representation of the  People  Act, 1951, if it contains also the reasons for it, is a composite document satisfying the definition of a judgment as well  as that  of  an  order  and  thereby  attracting  the  relevant provisions  of s. 12 of the Limitation Act.   Section  12(2) does not say that the order mentioned therein shall be  only such order as is defined in the Civil Procedure Code.  If  a statute  provides for the making of an order and  confers  a right  of  appeal to an aggrieved party against  that  order within a prescribed time, the time requisite for obtaining a copy of the order can be excluded.  The Act of 1951 empowers the  Tribunal to make an order and gives a right  of  appeal against that order to the High Court and therefore s.  12(2) is directly attracted without any recourse to the definition of an order in the Code of Civil Procedure. Per  Mudholkar  J.-The first limb of s. 29(2)  is  concerned only  with  the proceedings under special or local  law  for which  a  period of limitation is prescribed  in  the  First Schedule  to the Limitation Act.  If for such  a  proceeding the  period to be found in the First Schedule  is  different from  that prescribed under a special or local law,  certain consequences   will   follow  under   the   provision.    No inconvenience  is  to  be caused by  giving  a  literal  and natural  interpretation  to  the  expression  used  by   the legislature  in  the first portion of sub-s. (2)  of  s.  29 because cases of other kind can easily come under the second portion thereof.  Case Law referred to. 132

JUDGMENT: CIVIL APPELLATE JURISDICTION:, Civil Appeal No. 815 of 1963. Appeal by special leave from judgment and order dated  April 23, 1963, of the Madhya Pradesh High Court in 1st Appeal No. 23 of 1963. G.S.  Pathak, B. A. Musodkar, S. N. Andley and  Rameshwar Nath, for the appellant. M. S. Gupta, for respondent No. 1. December 20, 1963. The following Judgments were delivered: AYYANGAR  J.-On behalf of the Chief Justice and himself)  We have  had  the  advantage of perusing the  judgment  of  our brother  Subba Rao J. and we agree with him that the  appeal should be dismissed. The  justification for this separate judgment,  however,  is because of our inability to agree with him in his  construc- tion  of the relative scope of the two limbs of s. 29(2)  of the Indian Limitation Act. The  facts  of the case have been set out in detail  in  the judgment of Subba Rao J. and it is therefore unnecessary  to repeat  them.  There were three principal points  that  were urged  before  us  on  either  side  which  require  to   be considered  and all of them turn on the proper  construction of s. 29(2) of the Indian Limitation Act which we shall  for convenience set out here:               "29(2)   Where  any  special  or   local   law               prescribes for any suit, appeal or application               a  period  of limitation  different  from  the               period   prescribed  therefor  by  the   first               schedule,  the provisions of section  3  shall

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             apply,  as  if  such  period  were  prescribed               therefor in that schedule, and for the purpose               of   determining  any  period  of   limitation               prescribed for any suit, appeal or application               by any special or local law-               (a)   the  provisions contained in section  4,               sections  9 to 18, and section 22 shall  apply               only in so far as, and to the extent to which,               they  are  not  expressly  excluded  by   such               special or local law; and               133               (b)   the  remaining  provisions of  this  Act               shall not apply." The  learned Judges of the High Court have proceeded on  the basis  that  s.  29(2)(a) applies to  the  case  of  appeals preferred under s. 116 A of the Representation of the People Act,  1951  and on that footing have held  that  the  appeal presented  to  them  by the respondent was  within  time  if computed  after making the deductions permitted by s. 12  of the Limitation Act. It is the correctness of this view  that is challenged before.....us. Proceeding now to  deal with the question whether the  terms of  s.  29(2)  are  apt to take in  appeals  under  the  Re- presentation of the People Act, the first matter to be  con- sidered  necessarily  is whether that Act is a  "special  or local law" within the opening words of the sub-section.   As to  this, however, Mr. Pathak raised no dispute and he  con- ceded  that s. 116A was such a "special or local law."  That this  "special  or local law" prescribes "for  an  appeal  a period  of limitation" is also evident.  The first point  of controversy,  however, has arisen as to whether "the  period of  limitation  prescribed by the special or  local  Law  is different  from the period prescribed therefor by the  first schedule." The contention urged strenuously before us by Mr. Pathak,  the  learned counsel for the  appellant,  was  that there  would  be  "a different period" only  where  for  the identical  appeal  (to refer only to  that  proceeding  with which  we are immediately concerned) for which a  period  of limitation has been prescribed by the special or local  Law, a  period  is  prescribed  by  first  column  of  the  first schedule. and there is a difference between the two periods. It  was  his  further  contention  that  where  the   Indian Limitation  Act  made no provision for such  an  appeal,  s. 29(2)  and the provision contained in its (a) and  (b)  were inapplicable.   There  have been several decisions  on  this point  but it is sufficient to refer to the decision of  the Bombay High Court in Canara Bank Ltd., Bombay v. The  Warden Insurance  Co. Ltd., Bombay (1) where Chagla  C.J.  repelled this  construction  and held that even where  there  was  no provision in the first schedule for an (1)  I. L. R. 1952 Bom. 1083. 134 appeal in a situation identical with that for which the spe- cial  law provides, the test of "a prescription of a  period of  limitation different from the period prescribed  by  the First Schedule is satisfied.  This Court in State of U.P. v. Smt.   Kaushaliya  etc.(1)  upheld  this  construction   and approved  ,the  judgment of Chagla C.J. in the  Canara  Bank case.   Apart from the decision of this Court,  we  consider the  reasoning of Chagla C.J. to be unexceptionable  and  we agree with Subba Rao J. in holding that the requirement of a prescription by the special law "of a period different" from that  prescribed by the First Schedule is satisfied  in  the present case. The  next  point  was one that arose on  the  submission  of

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counsel for the respondent and it was this.  Assume that the construction  of  the words "different from"  urged  by  the appellant  were  accepted,  and this  requirement  would  be satisfied  only if the First Schedule made provision for  an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied  in this  case.  For this purpose he relied on Art. 156  of  the first schedule which runs: -----------------------------------------------------------                                             Time from which "Description of     Period of              period begins to      appeal         limitation                 run ------------------------------------------------------------ 156.-Under the Code of Civil  Ninety days    The date of      Procedure, 1908, to a High         decree or order      Court, except in the cases         appealed from."      provided for by article 51      and article 153. The argument was that though the right of appeal in the case before us was conferred by s. 116A of the Representation  of the People Act and it was by virtue thereof that the  appeal was filed by the respondent to the High Court, it was  still an  appeal  "under the Code of Civil Procedure, 1908,  to  a High  Court."  For this submission  learned  Counsel  relied principally on two decisions--one of the Calcutta and the (1)  A. 1. R. 1964 S. C. 416. 135 other of the Madras High Court, and they undoubtedly support him.  In Aga Mohd.  Hamdani v. Cohen and Ors.(1) -as well as in  Ramasami Pillai v. Deputy Collector of, Madura(1)  which followed  it-the Court held that to attract this article  it was  not necessary in order to be an "appeal under the  Code of  Civil  Procedure" within the meaning of those  words  in Art.  156,  that the right to prefer the  appeal  should  be conferred  by  the Code of Civil Procedure but that  it  was sufficient if the procedure for the filing of the appeal and the  powers  of the court for dealing with the  appeal  were governed  by that Code.  For adopting this construction  the Court  relied  on  the reference in Art. 156  to  Art.  151. Article  151  dealt  with appeals to  the  High  Court  from judgment  rendered on the original side of that Court.   The right  to prefer these appeals was conferred by the  Letters Patent  constituting the respective High Courts and  not  by the  Code  of  Civil Procedure, though  the  Code  of  Civil Procedure governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed.  There would have been need therefore to except cases covered by Art. 151 only  if the words "under the Code of Civil Procedure"  were understood as meaning appeals for the disposal of which  the provisions   of  the  Code  of  Civil  Procedure  was   made applicable.  We might mention that besides the Calcutta  and the  Madras High Courts a Full Bench of the  Allahabad  High Court  also  has  in Daropadi v. Hira Lal  (3  )  adopted  a similar  construction  of the Article,  the  learned  Judges pointing out that several Indian enactments, among them  the Indian -Succession Act, the Probate and Administration  Act, the Land Acquisition Act and the Provincial Insolvency  Act, proceeded  on  the basis of a legislative practice  of  con- ferring  rights  of  appeal under  the  respective  statutes without  prescribing any period of limitation  within  which the   appeal   should  be  preferred,  but   directing   the application,  of the provisions of the Civil Procedure  Code to such appeals, the intention obviously being that Art. 156 would furnish the period of limitation for such appeals.  We consider that these deci-

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(1)  1. L. R. 13 Cal. 221. (3)  1. L. R. 34 Allahabad 496. (2) 1. L. R. 43 Mad. 51. 136 sions correctly interpret Art. 156 and, in any event, we are not  prepared to disturb the decisions which have stood  for so long and on the basis of the correctness of which  Indian legislation has proceeded. Mr.  Pathak drew our attention to some decisions in which  a different  construction  was adopted of the word  "under"  a particular  enactment  occurring in other  Articles  of  the Limitation  Act and in particular some dealing with  appeals in  certain criminal matters.  In them the word ’under’  was understood  as  meaning "by virtue of".   He  was,  however, unable  to  bring to our notice any decision  in  which  the construction  adopted of Art. 156 which we have set out  has been  departed  from.  In the cases dealing with  the  words "under  the Criminal Procedure Code" which he placed  before us,  the situation would obviously be different,  since  the indication  afforded by the mention of Art. 151 in Art.  156 does not figure in the Articles dealt with.  Therefore  that would be a circumstance pointing to a different result. If the construction adopted of Art. 156 in the Calcutta  and Madras  decisions  to which we have  referred  were  upheld, there  could be no controversy that an appeal under s.  116A of the Representation of the People Act would be "under  the Code of Civil Procedure", for s. 116A(2) enacts, to read the material portion:               "116A.  (2) The High Court shall,  subject  to               the  provisions  of this Act,  have  the  same               powers, jurisdiction and authority, and follow               the same procedure, with respect to an  appeal               under  this Chapter as if the appeal  were  an               appeal  from  an original decree passed  by  a               civil  court situated within the local  limits               of     its     civil     appellate      juris-               diction.............................. In this view even on the narrowest construction of the words "different from those prescribed therefor in first schedule" occurring  the  opening part of s. 29(2), the  exclusion  of time provided for by Art. 12 of the Limitation Act would  be permissible in computing the period of limitation for filing the appeal to the High Court in the case before us. 137 The last point which remains for consideration is one  which would  be  material only in the event of the two  points  we have  already  dealt with being decided  differently.   This relates to the relationship or inter-connection between  the first  and  the second limbs of s. 29(2) of  the  Limitation Act.   The reason why we are dealing with it is  because  of our  inability  to  agree with the  construction  which  our learned  brothers Subba Rao & Mudholkar JJ. have  placed  on this feature of the sub-section.  Sub-section (2), it  would be  seen,  consists of two parts.  The first  sets  out  the conditions to which the special law should conform in  order to  attract section 3 and that part ends with the words  ’as if  such period were prescribed therefor in that  schedule". This  is followed by the conjunction ’and’ that word by  the second  part  reading "for the purpose  of  determining  any period  of  limitation prescribed for any  suit,  appeal  or application by any special or local law-               (a)   the  provisions contained in section  4,               sections  9 to 18, and section 22 shall  apply               only in so far as, and to the extent to which,               they  are  not  expressly  excluded  by   such

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             special or local law; and               (b)   the  remaining  provisions of  this  Act                             shall not apply." The question that has been debated before us is whether  the condition  postulated by the first limb, namely the  special or  local law prescribing a period of limitation for a  suit appeal etc. different from the period prescribed therefor by the  first schedule has to be satisfied in order  to  render the  provisions of cl. (a) applicable.  If  the  conjunction ’and’  was used for the purpose of indicating that  the  two parts were cumulative, that is, if the two parts operated in respect  of the same set of circumstances, then  unless  the opening  words of sub-s. (2) were satisfied, there would  be no  basis  for  the application of cl.  (a)  to  the  period prescribed  for a suit, appeal or application applicable  by the  special  or local law.  If on the other hand,  the  two parts  of the sub-section could be read independently as  if they made provision for two separate situations, the  result would be that the words starting from "for the purpose 138 of  determining any period of limitation prescribed for  any suit,  appeal  or application by any special or  local  law" followed by clauses (a) & (b) would be an independent provi- sion unrelated to the first part and therefore could operate unhampered  by the condition set out in the first part.   In other  words,  if the latter construction were  adopted  for every  suit,  appeal or application for which  a  period  of limitation  was  prescribed by a special or local  law,  the provisions  in  ss.  4,  9 to 18 &  22  would  apply  unless excluded.  Mr, Pathak urged that the conjunction ’and’ could in  the  context be construed only as rendering  the  second limb  a  part and parcel of the first, so  that  unless  the conditions laid down by the opening words of the sub-section were satisfied, the provisions of the Limitation Act set out in  cl. (a) would not be attracted to "determine the  period of limitation’ prescribed by the special or local law.   The question of the import and function of the conjunction ’and’ was  the subject of elaborate consideration by a Full  Bench of the Allahabad High Court in a decision in Sehat Ali  Khan v.  Abdul Qavi Khan(1).  The majority of the learned  Judges held that the two parts of the sub-section were  independent and  that  "for  the purpose of determining  any  period  of limitation prescribed for any suit, appeal or application by any  special  or  local law". cl.  (a)  would  apply  unless excluded.   Raghubar  Dayal J. then a judge of  that  Court, however,  dissented from this view and held that the  entire sub-s.  (2)  had to be read as an integrated  provision  and that the conjunction ’and’ connected the two parts and  made it necessary for attracting cl. (a) that the conditions laid down by the opening words of sub-s. (2) should be satisfied. Mr.  Pathak  recommended for our acceptance  the  dissenting judgment of Dayal J. We consider that the view expressed  by Raghubar Dayal J. as to the inter-relation of the two  parts of  the sub-section reflects correctly our own  construction of  the  provision.  Raghubar Dayal J. has  approached  this question  of construction from several angles including  the grammar of the passage.  Without going into any of them,  we would rest our decision on a shorter ground.  In order  that the  second  part might be held to be  independent  ,of  the first, the first part should itself be complete and be 1.   L. R. [1956]2 Allahabad 252. 139 capable  of operating independently.  Unless this test  were -satisfied,  the conjunction ’and’ would have to be read  as importing   into   what  follows  it,  the   conditions   or

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consideration  set out earlier as otherwise even  the  first part would be incomplete.  Let us now see whether the  first part  could  function without the second.   The  first  part reads  "where  any special or local law prescribes  for  any suit, appeal or application a period of limitation different from  the  period  prescribed  by  the  first  schedule  the provision  of  s.  3  shall apply  as  if  that  period  was prescribed therefor in that schedule." The question is  what this, standing by itself, would signify.  If the  conditions prescribed by the opening words were satisfied, s. 3 of  the Limitation Act would be attracted Section 3 reads:               "Subject   to  the  provisions  contained   in               sections  4  to  25  (inclusive),  every  suit               instituted, appeal preferred, and  application               made,   after   the   period   of   limitation               prescribed  therefor  by  the  first  schedule               shall  be dismissed, although  limitation  has               not      been      set      up      as       a               defence.................... In  other  words, if the special or local law  prescribed  a period  of limitation different from that prescribed by  the first schedule by the application of the first part of  sub- s.  (2), the court is enabled to dismiss suits, appeals  and applications filed beyond time.  If this is the only  effect it would be seen that the provision is inane and  redundant, because  even  without  it, by the very  prescription  of  a period  of  limitation  the jurisdiction  of  the  court  to entertain  the suit, appeal etc. would be dependent  on  the same being filed in time. It  is possible, however, to construe the reference to s.  3 in  s.  29(2) to mean that the power to  dismiss  the  suit, appeal etc. if filed beyond the time prescribed, is  subject to  the modes of computation etc. of the time prescribed  by applying the provisions of ss. 4 to 25 which are referred to in  the opening words of s. 3. On this construction where  a case  satisfies  the opening words of s.  29(2)  the  entire group  of  ss. 3 to 25 would be attracted to  determine  the period of limitation prescribed by the special or local law. Now let us test this with reference to the second limb of s. 29(2) treating the latter as 140 a separate and independent provision.  That part starts with the  words "for determining any period of  limitation  pres- cribed for any suit, appeal or application by any special or local  law"  (italics  ours).  The  words  italicised  being perfectly  general,  would manifestly  be  comprehensive  to include  every  special or local law, and among  these  must necessarily  be  included such special or local  laws  which satisfy  the  conditions specified by the first limb  of  s. 29(2).   We  then  have  this strange  result  that  by  the operation  of the first part ss. 3 to 25 of  the  Limitation Act  are made applicable to that class of special and  local laws  which  satisfy the conditions specified by  the  first limb,  whereas  by  the operation of  the  second  limb  the provisions  of  section 3, 5, 6 to 8 & 19 to 21 & 23  to  25 would not apply to the same class of cases.  A  construction which would lead to this anomalous result cannot be accepted and we, therefore, hold that subject to the construction  we have  put upon sub-s. (2) of s. 29 both the parts are to  be read  as  one  whole  and  that  the  words  following   the conjunction ’and’ "for the purpose of determining any period of limitation" etc. attract the conditions laid down by  the opening words of the sub-section. As  we  have pointed out earlier this does  not  affect  the result.   We agree that the appeal fails and we direct  that

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it be dismissed with costs. SUBBA  RAo  J.-This  appeal  by  special  leave  raises  the question of true construction of the provisions of s.  29(2) of  the  Indian  Limitation Act, 1908 (9 of  1908),  in  the context of its application to s. 116-A of the Representation of the People Act, 1951 (43 of 1951), hereinafter called the Act. The  facts  relevant to the question raised lie in  a  small compass  and  they  are not  disputed.   The  appellant  was elected  to  the  House of the People  from  the  Mahasamund parliamentary  constituency in the State of- Madhya  Pradesh in  the third general elections.  The respondents  were  the other contesting candidates.  Respondent 1 filed an election petition before the Election Commissioner of India under ss. 80  and 81 of the Act for setting aside the election of  the appellant and it was duly referred to the Election Tribunal. The 141 Election Tribunal, by its order dated January 5, 1963,  dis- missed  the  election petition.  On February 11,  1963,  the first respondent preferred an appeal against the said  order of the Election Tribunal to the High Court of Madhya Pradesh at Jabalpur.  Under sub-s. (3) of s. 116-A of the Act  every appeal under Ch.  IVA of the Act shall be preferred within a period of thirty days from the date of the order of the Tri- bunal under s. 98 or s. 99 thereof.  Admittedly, the  appeal was  filed  more than 30 days from the said order.   If  the time  requisite  for obtaining a copy of the  order  of  the Tribunal was excluded, the appeal was filed within 30  days; but  if  in law it could not be excluded, the  appeal  would certainly  be out of time.  The appellant  contended  before the High Court that respondent I was not entitled in law  to exclude the time so taken by him in obtaining a copy of  the order  of  the Tribunal, but that plea was rejected  by  the High  Court.   On  merits,  the High  Court  held  that  the appellant  had  committed two acts of  corrupt  practice  as defined  by  s.  123(4) of the Act and on  that  finding  it declared  the  election  of the appellant void.  It  is  not necessary to go into the details of the     judgment ofthe High Court given on the merits of the case,as nothingturns upon  them in this appeal, for the learned,counsel  confined his  argument  only  to the  question  of  limitation.   The present  appeal has been preferred by the appellant  against the  said  order  of  the  High  Court  setting  aside   his ,election. The only question, therefore, is whether for the purpose  of computing the period of 30 days prescribed under s. 116A (3) of the Act the provisions of s. 12 of the Limitation Act can be invoked. Mr.  Pathak, learned counsel for the appellant, in  an  ela- borate  argument placed before us the different  aspects  of the  question raised, and I shall deal with his argument  in the  appropriate context in the course of my  judgment.   It would  be  ,convenient at the outset to  read  the  relevant provisions of the Act and those of the Limitation Act. 142 The Representation of the People Act, 1951. Decision of the Tribunal Section  98.  At the conclusion of the trial of an  election petition the Tribunal shall make an order:-               (a)   dismissing the election petition; or               (b)   declaring the election of all or any  of               the returned               candidates to be void; or Section 116-A. (1) An appeal shall lie from every order made

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by  a  Tribunal under section 98 or section 99 to  the  High Court of the State in which the Tribunal is situated. (2)The High Court shall, subject to the provisions of this Act,  have the same powers, jurisdiction and authority,  and follow  the same procedure, with respect to an appeal  under this  Chapter  as  if  the appeal were  an  appeal  from  an original decree passed by a civil court situated within  the local limits of its civil appellate jurisdiction. (3)Every  appeal  under this Chapter  shall  be  preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99: Provided  that the High Court may entertain an appeal  after the expiry of the said period of thirty days if it is satis- fied  that  the  appellant  had  sufficient  cause  for  not preferring the appeal within such period. The Indian Limitation Act, 1908 Section  29.-(2) Where any special or local  law  prescribes for  any suit, appeal or application a period of  limitation different  from the period prescribed therefor by the  First Schedule,  the  provisions of section 3 shall apply,  as  if such  period were prescribed therefor in that Schedule,  and for the 143 purpose  of determining any period of limitation  prescribed for any suit, appeal or application by any special or  local law-               (a)   the  provisions contained in section  4,               section  9 to 18, and section 22  shall  apply               only in so far as, and to the extent to which,               they  are  not  expressly  excluded  by   such               special or local law; and               (b)   the  remaining  provisions of  this  Act               shall not apply. Section  12.-(2)  In  computing  the  period  of  limitation prescribed for an appeal, an application for leave to appeal and  an  application for a review of judgment,  the  day  on which  the judgment complained of was pronounced,  and  time requisite  for obtaining a copy of the decree,  sentence  or order  appealed  from  or sought to be  reviewed,  shall  be excluded. (3)Where  a  decree  is  appealed from  or  sought  to  be reviewed,  the  time requisite for obtaining a copy  of  the judgment on which it is founded shall also be excluded. Section  116-A of the Act confers a right of appeal  against an order of the Tribunal under s. 98 or s. 99 thereof;  sub- s.(3)     thereof  prescribes a period of limitation  of  30 days for  preferring  such  an appeal.  Section 29  of  (the Limitation Act attracts, by fiction, the provisions of s.  3 thereof  to  an appeal described in s. 29 of the  said  Act; with the result, the provisions of sub-ss. (2) and (3) of s. 12 of the Limitation Act are attracted thereto; and if those sub-sections  were  attracted  in computing  the  period  of limitation  prescribed for an appeal the time requisite  for obtaining a copy of the decree or order or judgment on which it  is founded shall be excluded.  Learned counsel  for  the appellant, therefore, contends that s. 29 of the  Limitation Act  does not apply to an appeal under s. 116-A of the  Act. The  first argument of learned counsel is that for  invoking sub-s.(2)  of  s.  29 of the Limitation  Act  the  necessary condition is that the First Schedule thereto shall prescribe a period of limitation for an appeal and that a special  law shall  prescribe  for the same type of  appeal  a  different period of limitation and that, as in the 144 present  case  the  First Schedule has  not  prescribed  any

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period of limitation to an appeal under s. 116-A of the  Act against an order of the Tribunal, sub-s. (2) of s. 29 of the Act  -is  not attracted.  This argument is  met  by  learned counsel  for the respondents in two ways, namely,  (i)  that the  First Schedule to the Limitation Act has  prescribed  a period of limitation for such an appeal, and (ii) that  sub- s. (2) will apply even to a case where the First Schedule to the  Limitation  Act  has  not  prescribed  any  period   of limitation  for  an appeal, but a special law  prescribed  a period of limitation for such an appeal.  I shall proceed to consider the two limbs of the argument separately. Has  the First Schedule to the Limitation Act  prescribed  a period  of limitation for an appeal against an order  of  an Election Tribunal under s. 98 or s. 99 of the Act?   Article 156 of the First Schedule to the Limitation Act says that to an appeal under the Code of Civil Procedure, 1908, to a High Court,  except in the cases provided for by article 151  and article  153, the period of limitation is 90 days  from  the date  of the decree or order appealed from; and article  151 referred to in article 156 provides for an appeal against  a decree  or order of any of the High Courts of Judicature  at Fort  William, Madras, and Bombay, or of the High  Court  of Punjab  in the exercise of its original jurisdiction.   What does  the expression "under the Code of Civil Procedure"  in art.  156  of  the  First Schedule  to  the  Limitation  Act connote?   Does  it  mean that a right of  appeal  shall  be conferred under the Code of Civil Procedure, or does it mean that  the procedure prescribed by the said Code shall  apply to  such an appeal?  A comparison of the terms of  art.  156 and  art. 151 indicates that the emphasis is more  upon  the procedure  applicable  to an appeal than on  ’the  right  of appeal  conferred  under an Act.  The heading of  the  first column  in  the  First Schedule to  the  Limitation  Act  is "Description  of appeal".  The phraseology used in art.  156 describes  the  nature of the appeal in respect of  which  a particular period of limitation is prescribed.  It does  not refer  to  a  right  conferred  under  the  Code  of   Civil Procedure,  but only describes the appeal with reference  to the  procedure applicable thereto.  Though the word  "under" may support the contrary view, the reference to 145 -art.  151  therein  detracts from it.  Article  151  is  an exception to art. 156, indicating thereby that, but for  the exception  art. 156 will apply to an appeal covered by  art. 151:  that is to say, an appeal under art. 151 is deemed  to be  an appeal under the Code of Civil Procedure.   Though  a right of appeal is conferred under the Letters Patent, it is deemed  to be an appeal under the Code of  Civil  Procedure, because the Code of Civil Procedure governs the said appeal. As  Rajamannar,  C.J.,  observed  in  Kandaswami  Pillai  v. Kannappa Chetty(1),               "It  is well established that  the  Limitation               Act  and  the Code are to  be  read  together,               because   both   are  statutes   relating   to               procedure  and they are in pari  materia  and,               therefore, to be taken and construed  together               as one system as explanatory of each other." So  construed  it  may  reasonably be  held  that  art.  156 provides for an appeal governed by the procedure  prescribed by  the Code of Civil Procedure.  This view was accepted  by the  Calcutta  High Court as early as 1886  in  Aga  Mahomed Hamadani  v.  Cohen(1).   There, under s. 49  of  the  Burma Courts  Act (XVII of 1875), where the amount or value  of  a suit  or  proceeding in the Recorder’s  Court  exceeded  Rs. 3,000,  and was less than Rs. 10,000, an appeal lay  to  the

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High Court.  Under s. 97 of the said Act, "save as otherwise provided by this Act, the Code of Civil Procedure shall  be, and shall, on and from the 15th day of April 1872, be deemed to  have been in force throughout British  Burma".   Section 540 of the Civil Procedure Code of 1882, which was in  force at that time, read:               "Unless  when otherwise expressly provided  by               this  Code  or by any other law for  the  time               being  in force, an appeal shall lie from  the               decrees or from any part of the decrees of the               Courts exercising original jurisdiction to the               Courts  authorized  to hear appeals  from  the               decisions of those Courts."               (1) A. T. R. 1952 Mad. 186.               134-159 S.C.-10.               (2) (1886) I. L. R. 13 Cal. 221.               146               The  effect of this provision of the  Code  on               the Burma Courts Act was that where an  appeal               was not expressly excluded by any special Act,               an  appeal lay to whatever court  which  under               the  enactment  in force was  the  appropriate               court.  But this section was overborne by  the               Burma Courts Act to the extent it conferred  a               right  of appeal from the Recorder’s Court  to               the High Court subject to certain  conditions,               for  s. 49 of the Burma Courts Act  had  taken               away  the  right of appeal of  value  under  a               prescribed amount and conferred such a  right,               when  the  subject-matter of  the  appeal  was               between  two  prescribed  amounts,  from   the               decree  of  the Recorder’s Court to  the  High               Court.  It is, therefore, not correct to  say,               as  contended by the learned counsel,  that  a               right of appeal was conferred under s. 540  of               the Code of Civil Procedure, 1882.  After  the               passing  of the Burma Courts Act, a  right  of               appeal was, conferred under s. 49 of that  Act               and  not  under s. 540 of the  Code.   It  was               contended  before the Calcutta High Court,  as               it  is now contended before us, that art.  156               of  Schedule 11 of the Limitation Act did  not               apply to an appeal under the Burma Courts Act,               on the ground that the said appeal was not  an               appeal under the Code of Civil Procedure.  The               learned Judges observed thus, at p. 224:               "Now,  what  is meant by an appeal  under  the               Civil Procedure Code?  A particular appeal was               given  by the Burma Courts Act and  the  Burma               Courts  Act  is  still  the  only  Act   which               prescribes  to  what Court this  appeal  shall               lie.   If it had not been given by  the  Burma               Courts Act then s. 540 of the Civil  Procedure               Code  would have been sufficient to  give  it,               provided that some Court was by some enactment               provided  as  the  proper Court  to  hear  the               appeal.   The  procedure in appeals  in  every               respect  is  governed  by the  Code  of  Civil               Procedure,  The Limitation Act,  Schedule  11.               Art.  156,  when it speaks of the  Civil  Pro-               cedure 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

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             147               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." It is manifest from this passage that the learned Judges did not  repel  the contention on the ground that the  right  of appeal  was conferred by s. 540 of the Code of Civil  Proce- dure, but expressly for the reason that the natural  meaning of  the  relevant expression in art. 156 of Sch. 11  of  the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedure.  This decision  was followed  by  a Division Bench of the Madras High  Court  in Ramaswami  Pilai v. The Deputy Collector of Madura(1).   The learned  Judges,  Abdur Rahim and Oldfield, JJ.,  held  that art.  156  of  the Limitation Act (IX of  1908)  applied  to appeals filed under s. 54 of the Land Acquisition Act (1  of 1894).   The  right of appeal was conferred under  the  Land Acquisition Act, but the procedure prescribed by the Code of Civil Procedure governed that appeal.  The same argument now raised before us was raised, but was repelled.  After citing the  relevant part of the passage from the judgment  of  the Calcutta  High  Court extracted above,  the  learned  Judges stated at p. 55 thus:               "It  seems  to  us that this  is  the  correct               interpretation of article 156.  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  respect 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." Then the learned Judges referred to art. 151 of the  Limita- tion Act and concluded thus: (1)  (1919) 1 L. R. 43 Mad. 51. 148               "That also tends to show that what is meant by               the  legislature is appeals, the  hearing  and               disposal of which is governed by the rules  of               procedure  laid  down in the  Civil  Procedure               Code." Though  about 77 years have passed by since the decision  of the  Calcutta High Court and though the Limitation  Act  was amended a number of times, the Legislature did not think fit to  express  its  dissent from this  view  by  amendment  or otherwise.   No  direct  decision has been  brought  to  our notice  which  has  differed from, or  even  questioned  the correctness of, this decision.  In this context we may  also refer to the decision of the Allahabad High Court in Dropadi v. Hira Lal(1) where it is pointed out) that several  Indian enactments,  for instance, the Succession Act,  the  Probate and  Administration  Act, the Land Acquisition Act  and  the Provincial  Insolvency  Act,  confer rights  of  appeal  and direct  the  application of the provisions of  the  Code  of Civil  Procedure to such appeals, but prescribed  no  period within  which  such appeals might be filed, the  idea  being that art. 156 of the Limitation Act would furnish the period of  limitation for the filing of such appeals.  Mr,  Pathak, learned  counsel for the appellant, brought to our notice  a number  of decisions which considered the forum to which  an appeal  shall lie against an order under s. 476 of the  Code

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of  Criminal  Procedure  and the procedure  to  be  followed therein. In  Nasaruddin Khan v. Emperor(1), where an appeal under  s. 476-B  of the Code of Criminal Procedure from the  Court  of the  Munsif was heard in part by the District Judge, and  on the  next  date of hearing the appellant’s pleader  was  not present  in Court, it was held that the District  Judge  was entitled to consider that the appeal had been abandoned  and to dismiss it under the provisions of Order XLI of the  Code of Civil Procedure.  In Mt.  Abida Khatoon v. Chote Khan(1), the Allahabad High Court held, under similar  circumstances, that an appellate court could set aside an order  dismissing an appeal for default.  The Nagpur High Court in (1) (1912) I. L. R. 34 All. 496. (2) (1926) I. L. R. 53 Cal. 827. (3)A. I. R. 1956 All. 155. 149 Bholanath  Balbhadra Sahai v. Achheram Puran Kurmi(1),  held that  in such an appeal the appellate Court  could  exercise its  power  under 0. XLI, r. 27 of the Code  of  Civil  Pro- cedure.   In Chandra Kumar Sen v. Mathuria Debya (2 ) ,  the Calcutta High Court applied to such an appeal the period  of limitation prescribed under art. 154 of the Limitation Act. It  is said that the combined effect of these  decisions  is that the procedure applicable in an appeal against an  order made  by a civil court under s. 476 of the Code of  Criminal Procedure is that prescribed by the Code of Civil  Procedure whereas  the period of limitation is that prescribed for  an appeal under the Code of Criminal Procedure.  But the  lear- ned  counsel  himself conceded that there is a  conflict  of decisions  on the question whether to an appeal against  the order  of  a  civil  court under s. 476-B  of  the  Code  of Criminal  Procedure,  the  civil procedure  applies  or  the criminal procedure applies and, therefore, the only decision which  may have some bearing on the question now  raised  is that  in Chandra Kumar Sen v. Mathuria Debya(2).  There,  an application  was  filed  before the  Subordinate  Judge  for filing of a complaint against the petitioner under s. 476 of the  Code  of Criminal Procedure.  That was  rejected.   The complainant  preferred an appeal to the District Judge  more than  30  days prescribed under art. 154 of  the  Limitation Act.   The learned District Judge held that no  question  of limitation  arose,  for the District Judge  suo  motu  could lodge  a complaint in the criminal court when an offence  in connection with the administration of civil justice came  to his  notice.  On that reasoning he instituted  a  complaint. The  High  Court held that the appeal was  filed  before  he District  Judge  under  s. 476-B of  the  Code  of  Criminal Procedure  and that under art. 154 of the Limitation Act  it should  have been filed within 30 days from the date of  the order of the Subordinate court.  It will be noticed that  no argument  was  raised  in  that case  that  the  appeal  was governed by the Code of Civil Procedure and, therefore,  the appropriate article of the Limitation Act was not art. 154, (1) A. 1. R. 1937 Nag. 91. (2) (1925) I. L. R. 52 Cal. 1009. 150 but  art. 156 thereof, for the simple reason that  whichever article applied the apPeal was clearly barred by limitation. It is not, therefore, permissible to read into the  decision the  entire  argument now advanced before us.   The  present question  was  neither raised nor argued in that  case.   It may,  therefore, be safely held that for over 75  years  the decision  of the Calcutta High Court on the construction  of art. 156 of the Limitation Act stood the ground.  Though  it

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must be conceded that the point is not free from difficulty, we are not prepared to depart from the construction put upon the  article  as early as 1886 and which was  not  dissented from all these years. 1, therefore, hold that the expression "appeal  under the Code of Civil Procedure" in art.  156  of the  Limitation Act means an appeal governed by the Code  of Civil Procedure. Even  so, it is contended that under s. 116-A(2) of the  Act the High Court, though it has the same powers,  jurisdiction and authority of an appellate court governed by the Code  of Civil  Procedure, is not empowered to follow  the  procedure prescribed  under  the  Code in  respect  of  receiving  the appeals.  This argument is contrary to the express terms  of sub-s. (2) of s. 116-A of the Act.  Under that  sub-section, "The  High  Court shall, subject to the provisions  of  this Act,  have the same powers, jurisdiction and  authority  and follow  the same procedure, with respect to an appeal  under this  Chapter  as  if  the appeal were  an  appeal  from  an original decree passed by a civil court situated within  the local  limits of its civil appellate  jurisdiction".   Under the  second  part of sub-s. (2) of s. 11 6-A of the  Act,  a fiction is created, namely, that though a right of appeal is conferred  by s. 116-A(1) of the Act, the appeal  thereunder for the purpose of sub-s. (2) will be deemed to be an appeal from  an  original decree passed by a civil  court  situated within the local limits of its civil apPellate jurisdiction. The first part of the sub-section describes the purposes for which  the fiction is invoked, namely, the exercise  of  the powers, jurisdiction and authority and the following of  the procedure  with  respect  to such an  appeal.   The  powers, jurisdiction and authority take in the powers,  jurisdiction and authority exercisable by an appellate tribunal in regard to various matters prescribed in the Code of Civil 151 Procedure.   What  does  the  word  "procedure"  mean?   The procedure  must necessarily be the procedure governing  such -an  appeal.  It means, inter alia, the manner of  receiving an  -appeal in the court, the preparation of records of  the appeal,  the  posting of the appeal and the  manner  of  its disposal.   We find it impossible to exclude from  the  word "procedure"  the  filing and receiving of an appeal  in  the court.   If that part was excluded, how could the appeal  be received  in the High Court?  The answer given is  that  the Government  might  make rules under s. 169(1)  of  the  Act. When  s. 168(2) confers a statutory power on the High  Court to  follow  the procedure prescribed by the  Code  of  Civil Procedure,  we  ,cannot  invoke the  general  power  of  the Central Government to make rules under s. 169(1) of the Act. If  so,  the procedure prescribed by 0. XLI of the  Code  of Civil Procedure, along with the other relevant provisions of the  said Code, equally applies to an appeal filed under  s. 116-A (2) of the Act.  The result is that under s.  116-A(2) of  the  Act,  the appeal, by fiction, is  equated  with  an appeal  filed  under  the ,Code of Civil  Procedure  in  the matter of not only the exercise ,of the powers, jurisdiction and  authority  but also in the matter ,of procedure  to  be followed  from  the date of receipt of the  :appeal  to  its final disposal.  For the aforesaid reasons, I hold that  the special  law,  namely,  the  Act,  prescribes  a  period  of limitation different from the period prescribed therefor  by the First Schedule to the Limitation Act within the  meaning of  art. 29 (2) of the Limitation Act.  If so, s. 12 of  the Limitation  Act  is attracted, and the  1st  respondent  was entitled to exclude the time taken by him for obtaining  the copy of -the order.

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Even assuming that art. 156 of Schedule 1 to the  Limitation Act did not prescribe a period of limitation for the kind of appeal under consideration, the question arises whether sub- s.  (2) of s. 29 of the Limitation Act would not  be  appli- cable if no period was prescribed by the First Schedule  for an appeal created by a special law but the special law pres- cribed a period of limitation for the same.  The history  of this  provision  throws some light on  this  question.   The first Limitation Act was passed in the year 1859 (Act XIV of 1859).  Section 3 of that act provided: 152               "When,  by any law now or hereafter to  be  in               force,  a  shorter period of  limitation  than               that  prescribed  by  this  Act  is  specially               prescribed for the institution of a particular               suit, such shorter period of limitation  shall               be applied notwithstanding this Act." The provisions of the Act of 1859 were repealed by the Limi- tation  Act  IX of 1871.  Section 6 of that  Act,  which  is relevant to the present inquiry, read:               "When,  by  any  law  not  mentioned  in   the                             schedule  hereto annexed, and now or hereafter               to be in force in any part of British India, a               period  of  limitation  differing  from   that               prescribed   by   this   Act   is   especially               prescribed   for   any   suits,   appeals   or               applications,  nothing herein contained  shall               affect such law." The Limitation Act of 1871 was replaced by Act XV of 1877. Section 6 of this Act read:               "When,  by  any special or local  law  now  or               hereafter in force in British India, a  period               of limitation is especially prescribed for any               suit,  appeal or application,  nothing  herein               contained shall affect or alter the period  so               prescribed." The same provision was retained in the Limitation Act IX  of 1908,  but  it was amended in the year 1922 in  the  present form.  Before the amendment of 1922, there was a  difference of view on the following questions, namely, (1) whether  the general  provisions  of the Limitation Act, where  the  word "prescribed" alone without reference to any Act, was used or even  where that word was not used, would be  applicable  to special   or  local  laws,  and  (2)  whether  the   general provisions of the Limitation Act did not apply at all to the periods  of limitation prescribed by special or local  laws. Decisions  holding  that  the  general  provisions  of   the Limitation  Act  did  not apply to  periods  of  limitations prescribed by other laws relied upon the expression  "affect or alter" used in the section as it then stood.  Section  29 of  the  Limitation Act was amended to remove  the  conflict with a view to make the 153 general  provisions applicable to the period  of  limitation prescribed  by special or local laws.  A comparison  of  the phraseology of the earlier sections shows that while s. 3 of the Limitation Act of 1859 used the words "shorter period", s.   6  of the Act of 1871 used the expression  "differing", and s.    6  of the Acts of 1877 and 1908 removed  both  the expressions.   The result was that s. 6 of the Act  of  1871 saved  all  the  special or local laws  which  prescribed  a special  period  of  limitation from the  operation  of  the provisions  of  the  Limitation Act.  As  the  section  then stood, it applied to all special or local laws prescribing a

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-,period of limitation whether the Limitation Act prescribed any period of limitation or not for suits or appeals similar to  those  governed by special or local laws, or  where  the period of limitation so prescribed by special or local  laws was shorter or longer than that prescribed in the Limitation Act.   Can  it be said that by the Amending Act of  1922,  a conscious departure was made by the Legislature to impose  a condition  for  the  application of sub-s.  (2)  of  s.  29, namely,  that  a  period  of  limitation  should  have  been expressly prescribed by the First Schedule to the Limitation Act  in respect of a suit or appeal governed by the  special or  local law?  There was no occasion for such a  departure. To put it in other words, apart from resolving the conflict, did the Legislature intend to exclude a particular  category of  proceedings governed by special or local laws  from  the operation  of the benefit conferred by sub-s. (2) of s.  29? No  justification was suggested for such a departure and  we find none. The problem may be approached from a different  perspective. The scheme of the Limitation Act may be briefly stated thus: The  preamble  to  the  Act shows  that  it  was  passed  to consolidate  and  amend  the laws relating  to  the  law  of limitation  in respect of the proceedings mentioned  in  the Act.  It applies to the whole of India.  Part 11  comprising ss.  3  to 11 deals with limitation of  suits,  appeals  and applications; Part III comprising ss. 12 to 25 provides  for computation of periods of limitation; and Part V deals  with savings and repeals.  We are not concerned with Schedules II and  III  for they have been repealed.  The  First  Schedule consists of three divisions: the first division provides for the period 154 of  limitation for suits; the second division, for  appeals; and the third division, for applications.  Article 120 found in  the  first division prescribes for a suit for  which  no period   of  limitation  is  prescribed  elsewhere  in   the Schedule;  art.  181 in the third  division  prescribes  for application for which no period of limitation is  prescribed elsewhere  in the Schedule or by s. 48 of the Code of  Civil Procedure.   But no such residuary article is found  in  the second  division dealing with appeals.  The  Limitation  Act was conceived to be an exhaustive code prescribing for every conceivable proceeding, whether suit, appeal or application, subject  to  the saving in Part V thereof. It  follows  that there is no period of limitation for an appeal not  provided for  in the second division unless the special or local  law prescribes  for it.  If so, it may reasonably be said  that, as  the First Schedule of the Limitation Act  prescribes  no limitation  for  an appeal not covered by arts. 150  to  157 thereof, under the Limitation Act such a suit or appeal  can be filed irrespective of any time limit. With this background let us revert to the construction of s. 29(2) of the Limitation Act.  When the First Schedule of the Limitation  Act  prescribes no time limit for  a  particular appeal,  but the special law prescribes a time limit to  it, can  it  not be said that under the First  Schedule  of  the Limitation  Act an appeal can be filed at any time, but  the special law by limiting it provides for a different  period? While  the  former permits the filing of an  appeal  at  any time, the latter limits it to the prescribed period.  It is, therefore,  different  from that prescribed in  the  former. ’This problem was considered by a Division Bench of the Bom- bay  High  Court, consisting of Chagla C.J.,  and  Gajendra- gadkar  J.,  in Canara Bank Limited, Bombay  v.  The  Warden Insurance  Company, Ltd., Bombay(1).  Therein, Chagla  C.J.,

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speaking for the Court, observed at p. 1086 thus:               "The  period  of limitation may  be  different               under two different circumstances.  It may  be               different if it modifies or alters a period of               limitation fixed by the first Schedule to  the               Limitation  Act.  It may also be different  in               the               (1)   I. L. R. [1952] Bom. 1083.               155               sense  that  it  departs from  the  period  of               limitation fixed for various appeals under the               Limitation Act.  If the first Schedule to  the               Limitation Act omits laying down any period of               limitation  for  a particular appeal  and  the               special  law provides a period of  limitation,               then  to  that  extent  the  special  law   is               different  from  the Limitation Act.   We  are               conscious  of the fact that the language  used               by the Legislature is perhaps not very  happy,               but  we must put upon it a construction  which               will reconcile the various difficulties caused               by  the other sections of the  Limitation  Act               and which will give effect to the object which               obviously the Legislature had in mind, because               if  we were to give to s. 29 (2)  the  meaning               which  Mr.  Adarkar contends  for,  ’then  the               result  would  be  that  even  s.  3  of   the               Limitation Act would not apply to this special               law.   The  result would be that  although  an               appeal  may be barred by limitation, it  would               not be liable to be dismissed under s. 3". A Full Bench of the Allahabad High Court, in Sehat Ali  Khan v.  Abdul Qavi Khan(1) also dealt with this  question.   The learned  Judges expressed conflicting views.  Mootham  C.J., assumed  that  the first limb of the  sub-section  ,did  not apply to a case where the schedule omitted to provide for  a period  of limitation.  On that assumption he  proceeded  to consider the second limb of the sub-section.  DayalJ.. took the  view  that  for the application of the  first  part  of s.29(2) the period of limitation should have been prescribed by the First Schedule.  Agarwala J., agreed with the view of the  Bombay High Court.  Bhargava J., agreed with  the  view expressed  by  Mootham C.J., and Upadhya J., did  not  agree with the view of the Bombay High Court.  A Division Bench of the  Madhya  Pradesh High Court in Beharilal  Chaurasiya  v. Regional Transport Authority (2) (1) I. L.R. (1956) 2 All. 252. (2) A. 1. R. 1961 M. P. 75,77. 156 agreed with the view expressed by the Division Bench of  the Bombay  High  Court.  Dixit C.P., speaking for  (the  Court, stated thus:               "A  special  law  may  provide  a  period   of               limitation  and schedule I may omit to do  so.               None  the  less  the  special  law  would   be               different from the Limitation Act.  Section 29               (2) of -the Limitation Act is not very happily               worded.   It must be construed so as to  avoid               absurdity.   The,  expression  ’a  period   of               limitation   different.   from   the    period                             prescribed  therefor  by  the  first schedule’               occurring in s. 29 (2) cannot be construed  as               meaning  that schedule 1 must also  positively               prescribe  the period of limitation..  Such  a

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             construction  would not be in accordance  with               the  intention  of the Legislature  and  would               lead to an absurdity." The  learned  Chief Justice proceeded to consider  the  ano- malous  position that would arise if a literal  construction was  given  to  the  provisions of the  first  part  of  the section.  This Court, in Kaushalya Rani v. Gopal Singh  (1), had  to. consider this question incidentally in the  context of  the application of s. 29(2) of the Limitation Act to  an application for special leave to appeal against an order  of acquittal under sub-s. (3) of s. 417 of the Code of Criminal Procedure.  This Court held that s. 5 of the Limitation  Act would  not  apply  to an application for  special  leave  to appeal  under sub-s. (3) of s. 417 of the Code  of  Criminal Procedure.   The Limitation Act does not provide any  period of limitation for an application for special leave to appeal from an order of acquittal under the said section.  If  that be so, on the argument of learned counsel for the appellant, s. 29 of the Limitation Act could not be invoked.  But  this Court held that s. 29(2) of the Limitation Act applied,  but that  section excluded the application of s. 5 to  the  said application.  Sinha C.J., speaking for the Court, observed:               "Hence  it  may  be  said  that  there  is  no               limitation               prescribed by the Limitation Act for an               (1)   A. I. R. 1964 S. C. 260               157               appeal  against an order of acquittal  at  the               instance of a private prosecutor.  Thus, there               is a difference between the Limitation Act and               the  rule laid down in s. 417 (4) of the  Code               in  respect  of limitation affecting  such  an               application.  Section 29(2) is supplemental in               its character in so far as it provides for the               application of s. 3 to such cases as would not               come   within   its  purview  but   for   this               provision." ’This  observation  clearly supports the  position  that  s. 29(2) would apply even to a case where a difference  between the special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. 1, therefore, hold that in the instant case the Act provides a  period  of  limitation  different  from  that  prescribed therefor  by the First Schedule to the Limitation  Act  and, therefore, it is governed by s. 29(2) of the said Act. Even if my view on the construction of the first limb of  s. 29  of the Limitation Act were wrong, it would not help  the appellant,  for his case squarely falls within the scope  of the  second limb of the section., For convenience I  restate the relevant part of the section:               "...........   and   for   the   purpose    of               determining    any   period   of    limitation               prescribed for any suit, appeal or application               by any special or focal law." Learned  counsel for the appellant relied upon the  conjunc- tion "and" in support of his contention that the use of that conjunction makes the following sentence a limitation on the first part of the section.  He further argues that if it  is not a limitation but an independent clause, it will lead  to the -anomaly of ss. 4 to 25 of the Limitation Act applicable to proceedings failing under the first part and only some of the provisions thereof, namely, ss. 4, 9 to 18 and 22 apply- ing  to  the  second part of the section.   Apart  from  the grammatical construction, which I will consider presently, I

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do not see any anomaly in ss. 4 to 25 of the Limitation  Act applying to the first part of the section and only some of 158 them applying to the second part thereof.  Those proceedings to  which  the  first part applies, by  fiction  the  period prescribed  in  the  special  or local  law  is  treated  as prescribed  in  the  First Schedule  itself.   There  cannot possibly  be  any reason why s. 3 of the Limitation  Act  in toto  shall not apply to them.  But the same cannot be  said in  the  case  of the proceedings of a  different  type  not provided for in the First:Schedule. So, the  Legislature specified the sections applicable tothem  and   excluded the general sections which relate tolegal  disabilities, acknowledgements,   part-payments   and   others   specified therein.   The  Legislature  may_ have  -thought  that  such articles are not generally appropriate to proceedings  under special  or local laws for reliefs not provided for  in  the First Schedule. Now, coming to the construction of the section, the relevant rule of construction is well settled.  "A construction which will  leave  without effect any part of the  language  of  a statute  will  normally  be rejected"; or to  put  it  in  a positive  form, the Court shall ordinarily give  meaning  to every word used in the section.  Does the conjunction  "and" make the following clause a limitation on the preceding one? No rule of grammatical construction has been brought to  our notice  which requires an interpretation that  if  sentences complete  by themselves are connected by a conjunction,  the second sentence must be held to limit the scope of the first sentence.   The  conjunction  "and"  is  used  in  different contexts.   It  may combine two sentences dealing  with  the same subject without one depending upon the other.  But,  if the  interpretation  suggested  by the  learned  counsel  be accepted,  we would not be giving any meaning at all to  the word  "any" used thrice in the second part of  the  section, namely  "any period", "any suit" and "any special  or  local law".  If the second part is a limitation on the first part, the  sentence should read, "for the purpose  of  determining the period of limitation prescribed for such suit, appeal or application by such special or local law." Instead of  that, the  use  of the word "any" clearly  demonstrates  that  the second.  part  does not depend upon the first part  or  vice versa.   There is no reason why we should attribute  such  a grammatical deficiency to the legislature when every word in the second part of 159 the  section can be given full and satisfactory meaning.   I would,   therefore,  hold  that  the  second  part   is   an independent  provision providing for the aforesaid  category of proceedings to which the first part does not apply.  This is  the view expressed by the majority of the judges of  the Full Bench of the Allahabad High Court in Sehat Ali Khan  v. Abdul Qavi Khan(1).  I agree with the same. It  was  then  said that s. 116-A of  the  Act  provided  an exhaustive and exclusive code of limitation for the  purpose of  appeals  against  orders of tribunals  and  reliance  is placed  on the proviso to sub-s. (3) of that section,  which reads:               "Every  appeal  under this  Chapter  shall  be               preferred within a period of thirty days  from               the  date of the order of the  Tribunal  under               section 98 or section 99.               Provided that the High Court may entertain  an               appeal after the expiry of the said period  of               thirty  days  if  it  is  satisfied  that  the

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             appellant   had  sufficient  cause   for   not               preferring the appeal within such period." The contention is that sub-s. (3) of s. 116-A of the Act not only provides a period of limitation for such an appeal. but also the circumstances under which the delay can be excused, indicating  thereby  that  the  general  provisions  of  the Limitation Act are excluded.  There are two answers to  this argument.  Firstly, s. 29(2)(a) of the Limitation Act speaks of  express exclusion but there is no express  exclusion  in sub-s.  (3)  of s. 116-A of the Act; secondly,  the  proviso from  which an implied exclusion is sought to be drawn  does not lead to any such necessary implication.  The proviso has become  necessary, because, if the proviso was not  enacted. s.  29(2)(b) of the Limitation Act would have  excluded  the operation  of  s. 5 of the Limitation Act, with  the  result that  even if a sufficient cause for the delay existed,  the High Court would have been helpless to excuse the delay.  1, therefore,  hold that the proviso to sub-s. (3) of s.  116-A of the Act only restores the power denied to the court under s.   29(2)(b) of the Limitation Act. 1) I. L. R. [1956] 2 All. 252. 160 Lastly, it is contended that s. 12(2) of the Limitation Act, on  its express terms, would not apply to an appeal  to  the High  Court against an order of the Election Tribunal  under s. 98 of the Act.  Elaborating the argument it is said  that in  order  to exclude the time for obtaining a copy  of  the order  appealed against, the original shall be a  decree  or order within the meaning of s. 12(2) or judgment within  the meaning  of  s. 12(3) of the Limitation Act  and  the  order under s. 98 of the Act is neither a decree nor an order or a judgment  within the meaning of the said sub-sections of  s. 12 of the Limitation Act.  Reference is made to the  defini- tions of decree, judgment and order in sub-sections (2), (9) and   (14)  of  s.  2  of  the  Code  of  Civil   Procedure, respectively, and it is contended that the order under s. 98 of  the  Act  does  not fall under any  of  the  said  three expressions as defined therein.  Under sub-s. (9) of s. 2 of the  Code of Civil Procedure, "judgment" is defined to  mean the statement given by the judge of the grounds of a  decree or order.  Sub-section (14) of s. 2 of the said Code defines "order"  to mean the formal expression of any decision of  a civil court which is not a decree.  It follows from the said definitions  that  judgment is a statement  of  the  reasons given by the judge and order is the formal expression of his decision.   Section  104 of the said Code says,  "An  appeal shall  lie from the following orders, and save as  otherwise expressly  provided in the body of this Code or by  any  law for the time being in force, from no other orders." Order XX of the Code deals with the manner of pronouncing a  judgment and  decree.   Under 0. XX, r. 20, of the  Code,  "Certified copies of the judgment and decree shall be furnished to  the parties on application to the Court, and at their  expense." Under  s. 141 of the Code, "The procedure provided  in  this Code  in regard to suits shall be followed as far as it  can be made applicable, in all proceedings in any court of civil jurisdiction".   The  effect of these provisions is  that  a decree  is a formal expression of adjudication  conclusively determining the rights of parties with regard to all or  any of  the controversies in a suit, whereas order is  a  formal expression of any ,decision of a civil court which is not  a decree.   Judgment is a statement given by the judge of  his grounds  in  respect  of ,a  decree  or  order.   Ordinarily judgment and order are en- 161

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grossed  in two separate documents.  But the fact that  both are  engrossed  in the same document does  not  deprive  the statement of reasons and the formal expression of a decision of   their  character as judgment or order, as the case  may be. With this background let me look at the provisions of s.116- A of the Act.  Under sub-s. (1) thereof, an appeal shall lie from every order made by a Tribunal under s. 98 or s. 99  to the  High  Court  of  the State in  which  the  Tribunal  is situated.  Under s. 98 of the Act,               "At the conclusion of the trial of an election               petition the Tribunal shall make an order-               (a) dismissing the election petition;or               (b)   declaring the election of all or any  of               the returned candidates to be void; or               (c)declaring the election of all or any  of               the  returned  candidates to be void  and  the                             petitioner or any other candidate to h ave  been               duly elected.  " Part   VI  of  the  Act  provides  for  disputes   regarding elections-, Ch. III thereof prescribes the procedure for the trial of election petitions, and s. 90 therein says:               "(1)Subject to the provisions of this Act  and               of  any rules made thereunder, every  election               petition  shall be tried by the  Tribunal,  as               nearly  as  may  be, in  accordance  with  the               procedure  applicable under the Code of  Civil               Procedure, 1908, to the trial of suits." There is noprovision   in  the  Act  defining  how   the decision  should  be  given.  It could  not  have  been  the intention of the Legislature that the Tribunal need not give the  statement of reasons for its decision.  As under s.  90 of the Act the Election Tribunal is directed to try election petitions  as nearly as may be in accordance with  the  pro- cedure  applicable under the Code of Civil Procedure, it  is the  duty  of the Election Tribunal to give a  statement  of reasons  for  its decision.  It is open to it to  issue  two documents--one  embodying the reasons for the  decision  and the 134-159 S.C.-11. 162 other,  the  formal expression of its decision:  the  former will  be  its judgment and the latter, its  order.   It  may issue  both in the same document in which case the  judgment as  well as the order is embodied in the same document.   If so it is manifest that an order made under s. 98 of the Act, if  it  contains  also the reasons for it,  is  a  composite document ,satisfying the definition of a judgment as well as that  of  an  ,order and  thereby  attracting  the  relevant provisions  of s. 12 of the Limitation Act.  That  apart,  a different approach to the question raised leads to the  same conclusion.   Section 12(2) of the Limitation Act  does  not say  that  the order mentioned therein shall  be  only  such order as defined in the Civil Procedure Code.  If a  statute provides for the making of can order and confers a right  of appeal  to an aggrieved party -against that order  within  a prescribed  time, sub-s. (2) of s. 12 of the Limitation  Act says  that the time requisite for obtaining a copy  of  such order shall be excluded.  The Act em-powers the Tribunal  to make  an  order and gives a right of  -appeal  against  that order  to the High Court.  Section 12(2) of  the  Limitation Act  is, therefore, directly attracted without any  recourse to  the  definition  of  an  order  in  the  Code  of  Civil Procedure.   In  either view, s. 12 of  the  Limitation  Act

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-applies and, therefore, the time taken for obtaining a copy ,of the said order shall be excluded in computing the period ,of limitation. In the result, the appeal fails and is dismissed with costs. RAGHUBAR DAYAL J.-I agree that the appeal be dismissed,  but for different reasons. I am of opinion that the first part of s. 29(2) of the Limi- tation  Act  applies  only  when  a  special  or  local  law prescribes  -a period of limitation for an appeal  and  when for  that  particular  appeal  a  period  of  limitation  is prescribed  in the First Schedule to the Limitation Act,  as omission  to  prescribe  a period of  limitation  cannot  be equated  with  the prescribing ,of any  positive  period  of limitation within which the appeal should be filed, and that the second part of s. 29(2) of the Act is independent of the first  part and can apply to cases to which the  first  part does not apply.  I am also of ,opinion that art. 156 of  the First Schedule applies to appeals 163  which  are  instituted  in  view of  the  right  of  appeal conferred  by any special or local law and not in  pursuance of  the  provisions of s. 96 C.P.C. I do  not  elaborate  my views as I agree with what my learned brother Mudholkar  J., has  said in construing the first part of s. 29 (2)  of  the Limitation Act and art. 156 of the First Schedule and  agree with  my  learned brother Ayyangar J., with respect  to  his construction of the second part of s. 29(2). The proviso to s. 116(a) of the Representation of the People Act  gives  discretion  to the High Court  to  entertain  an appeal  presented after the expiry of 30 days from the  date of  the order of the Tribunal in case it is  satisfied  that there  is sufficient cause for the late presentation of  the memorandum  of appeal.  The respondent has applied  in  this Court for the condonation of the delay in filing the  appeal in  the  High Court.  In the circumstances of  the  case,  I consider it a fit case for condoning the delay.  There was a difference  of  opinion  in the High  Courts  regarding  the applicability  of  s.  12  of the  Limitation  Act  to  such appeals.   The  delay  was  of a  few  days.   The  Election Tribunal passed the order on January 5, 1963 and the  appeal was filed on February 11, 1963. A  party  can  reasonably desire to obtain  a  copy  of  the judgment  for  deciding, after studying it,  whether  it  is worthwhile appealing against it, and if so. on what grounds. I  am  satisfied  that there was sufficient  cause  for  the respondent’s not presenting the appeal within the period  of limitation.   I therefore condone the delay and confirm  the order of the High Court. MUDHOLKAR J.-While I agree with my brother Subba Rao J. that the  appeal  should be dismissed, I regret my  inability  to agree with all the reasons which he has given. I  need not recapitulate the facts which have been  set  out -fully in the judgment prepared by my learned brother but  I would only state the point which we have to consider in this appeal.   The point is whether for the purpose of  computing the period of 30 days prescribed by s. 116A(3) of 164 the  Representation of the People Act, 1951 under  which  an appeal  can be preferred from the decision of  the  Election Tribunal, the provisions of s. 12, sub-s. (2) of the Limita- tion Act, whereunder the time requisite for obtaining a copy of  the decree and the day on which the judgment  complained of was pronounced can be excluded can be pressed in aid.  It was contended before us that the appeal should be deemed  to be  one under the Code of Civil Procedure, in which case  it

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would fall under art. 156 of the First Schedule to the Limi- tation  Act, and that though a shorter period of  limitation is prescribed for it by the Representation of the People Act the  provisions of s. 12(2) of the Limitation Act  would  be attracted  by  reason  of the provisions of cl.  (a)  of  s. 29(2).  Reliance was ;)laced in this connection on the first limb  of  s. 29(2).  Alternatively it was  argued  that  the first limb of s. 29, sub-s. (2) of the Limitation Act  would also  apply  to an appeal under the  Representation  of  the People  Act even though it does not fall under art.  156  of the  Limitation Act since a different period  of  limitation was prescribed for it from that prescribed for an appeal  in the   First  Schedule  of  the  Limitation  Act  and   that, therefore,  cl.  (a) thereof would attract s. 12(2)  of  the Limitation  Act.   Finally it was argued that  even  if  the appeal  cannot be regarded as one falling within  the  first limb  of  s.  29(2) sub-s. (2) of s. 12  would  still  apply because  the  second  limb of sub-s. (2) of s.  29  is  wide enough in its ambit to include a suit, appeal or application for which no period of limitation is prescribed in the first schedule but a period of limitation has been prescribed by a special  or local law.  My learned brother has held in  his: judgment  that  an  appeal provided for by s.  116A  of  the Representation of the People Act would be an appeal underthe Code of Civil Procedure and thus fall under the first column of art. 156 of the First Schedule of the Limitation Act.  He has also held that the words "where any special or local law prescribes  for any suit, appeal or application a period  of limitation different from the period prescribed therefor  by the  first schedule" occurring in the first limb  of  sub-s. (2) of s. 29 would include a suit or an appeal’ even  though it  is  not of a type for which a period  of  limitation  is prescribed in the First Schedule because it is enough if the special law prescribes for such an appeal a period 165 which  is different from any period prescribed in the  First Schedule.   I  regret I am unable to agree  with  either  of these  views.   Finally,  however, my  learned  brother  has construed the second limb of sub-s. 2 of s. 29 "and for  the purpose of ,determining any period of limitation  prescribed for any suit, appeal or application by any special or  local law"  as being wide enough to include a suit, appeal  or  an application under a special or local law which is of a  type for which no period of limitation is prescribed in the First Schedule.   With  this  last  conclusion  I  agree.   In  my judgment  what he has said on the last point is  enough  for the  purpose of disposing of the appeal in the way  proposed by  him.  As, however, I do not agree with what he has  said on  the first two points I must briefly indicate my  reasons for coming to different conclusions. In  support  of  the conclusion that art.  156  applies,  my learned brother has relied upon the decision in Aga  Mahomed Hamadani v. Cohen (1) which was followed by the Madras  High Court  in  Ramasami  Pillai  v.  the  Deputy  Collector   of Madura(1).   The first of these two cases was one from  what was  then  British Burma.  Under s. 49 of the  Burma  Courts Act,  1875  (XVII of 1875) an appeal Jay to the  High  Court from  the  decision  in  a suit  or  proceeding  before  the Recorder’s  Court in which the amount or value was not  less than Rs. 3,000 and was not more than Rs. 10,000.  Section 97 of  that Act said: "save as otherwise provided by this  Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April, 1872, be deemed to have been in force throughout British Burma." Section 540 of the Code of  Civil Procedure, 1882 which was in force at that time read thus:

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             "Unless  when otherwise expressly provided  by               this  Code  or by any other law for  the  time               being  in force, an appeal shall lie from  the               decrees or from any part of the decrees of the               Courts exercising original jurisdiction to the               Courts  authorised  to hear appeals  from  the               decisions of those courts." (1) (1886) 1. L. R. 13 Cal. 221 (2) (1919) 1. L. R. 43 Mad. 51 166 The  question which the High Court had to consider  in  that case  was whether the appeal could be said to be in time  as it fell to be governed by art. 156 of the First Schedule  to the Limitation Act.  For deciding this matter the High Court proceeded to consider what was-meant by an appeal under  the Code of Civil Procedure.  While dealing with the matter  the High Court observed:               "A  particular appeal was given by  the  Burma               Courts.  Act and the Burma Courts Act is still               the  only Act which prescribes to  what  Court               this  appeal  shall lie.  If it had  not  been               given  by the Burma Courts Act then s. 540  of               the  Civil  Procedure  Code  would  have  been               sufficient  to  give it.  provided  that  some               Court  was by some enactment provided  as  the               proper   Court  to  hear  the   appeal.    The               procedure  in  appeals  in  every  respect  is               governed by the Code of Civil Procedure.   The               Limitation  Act,  Sch. 1, 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."               Referring  to  this, my  learned  brother  has               observed:               "It  is  manifest from this passage  that  the               learned judges did not repel the contention on               the  ground  that  the  right  of  appeal  was               conferred  by  s.  540 of the  Code  of  Civil               Procedure, but expressely for the reason  that               the natural meaning of the relevant expression               in  art. 156 of Sch.  1 of the Limitation  Act               was that the appeal mentioned therein was  one                             governed by the Code of Civil Procedur e." That  is true.  It is, however, not material for my  purpose to consider whether or not the High Court was right in hold- ing that the appeal before it was under the Burma Courts 167 Act.  I would assume that the High Court was right but it is necessary  to point out that the provisions of s. 29 of  the Limitation Act as then in force did not come for  considera- tion  in that case.  The question would then be whether  its view  that  an appeal, though not provided by  the  Code  of -Civil Procedure, would yet be deemed to be an appeal  under the  Code  for  the purpose of art. 156  of  the  Limitation Act,,,  was right.  With respect I do not think  that  there was  any  warrant for holding that an appeal which  was  not given by, the Code would still be one under the Code  merely because  the procedural provisions thereof would govern  its course-.   Where the right of appeal is given by some  other

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law,  the appeal must be regarded as one under that law  and not  under the Code.  I see no valid reason  for  construing the  words  ’under the Code of Civil Procedure’  as  meaning ’governed  in the matter of procedure by the Code  of  Civil Procedure’.   For, that is, in effect, what the  High  Court has done in this case.  By reading the article in the way it has  done  the High Court has virtually construed  the  only provision  in the Limitation Act dealing with  normal  civil appeals;  to  the High Court as a  residuary  article  which would  take  in  all appeals by whatever  law  they  may  be provided,  merely because the procedure relating to  appeals contained  in the Code of Civil Procedure was applicable  to them.   This  would  in my judgment  go  against  the  plain intended  of  the  Legislature.  Indeed, while  a  right  to institute  a suit or make an application is a wider kind  of right.  there can be no right of appeal unless some  statute confers  it.   That  is why the  Legislature  has  expressly enacted  residuary provisions, Arts. 120 and 180, for  suits and  applications respectively in the Limitation  Act.   The First Schedule is divided into three divisions.  Article 156 is  one  of  the  eight article&  contained  in  the  second division  which deals with appeals.  The first  division  of that  schedule deals with suits.  There, provision  is  made for  a variety of suits including some under  special  laws. but  it  was  realised  that it  could  not  be  exhaustive. Therefore,  art. 120 was provided therein, which deals  with "Suits  for  which  no  period  of  limitation  is  provided elsewhere in this schedule." The third division of the First Schedule   deals  with  applications  of  different   kinds. Article 181 makes provision for applications for which no 168 period   of  limitation  is  prescribed  elsewhere  in   the Schedule.  In the second division, however, which deals with appeals,  there  is no provision analogous to art.  120  and art.  181.   Four of the eight articles  deal  with  appeals under  the Code of Criminal Procedure and four with  appeals other  than those under the Code of Criminal Procedure.   As already stated, only one of these articles deals with normal civil  appeals to the High Court, namely, art. 156.   It  is not couched in language similar to that used in art. 120 and art.  181.  Would we then be justified in reading the  first column of art. 156 to mean the same thing as is said in  the first column of arts. 120 or 181?  The Legislature knew that appeals  have been provided by various special laws; but  it made  no provision for such appeals in this  Schedule  appa- rently  for the reason that a law which confers a  right  of appeal  is expected to provide for the period of  limitation for  such an appeal.  That seems to be the  explanation  for the absence of a residuary provision for appeals. The first difficulty, therefore, in interpreting art. 156 in the  way contended for by -the respondents is that  where  a different period of limitation for appeal is expressly  pro- vided  by  a  special  law art. 156 will  not  in  terms  be attracted.   To bring such an appeal under it would  clearly go  against the express intention of ’the Legislature  which was  to  confine that article to appeals under the  Code  of Civil  Procedure.   The next difficulty is  that  the  entry deals  with appeals "under" the Code of Civil Procedure  and not appeals arising out of proceedings to which the Code  of Civil  Procedure  applies.  Nor again, does  it  include  an appeal  which is only deemed to be under the Code  of  Civil Procedure.  Be it noted that so far as proceedings under the Representation of the People Act are concerned, the whole of the Code of Civil Procedure does not apply but only so  much of  it as is expressly made applicable by the provisions  of

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the  Representation of the People Act.  It was said that  if the  provisions  of 0. XLI, of the Code of  Civil  Procedure were not applicable to an appeal under the Representation of the  People Act there would be no provision  whereunder  the party could at all file an appeal.  It seems to me, however, that  there  can be no difficulty at all in this  matter  as every 169 -High  Court  has made rules partly under  the  Constitution -and  partly  in  exercise of its  inherent  power  to  make suitable  provisions in regard to this and  allied  matters. The  Calcutta High Court, however, does not appear  to  have given  ,the  full consideration in Cohen’s  case(1)  to  the ambit  of  art. 156 and that is another reason  why  I  find myself  unable to accept the correctness of the view it  has taken in that case. It  was  then said that the view should be accepted  on  the ground of stare decisis.  In this connection it was  pointed out thatso  far no court has dissented from that view  and indeed theview   was   fully   accepted   in   Ramasami Pillai’s .case(1) bythe  Madras High Court.  In so  far as the principle of stare decisis is concerned it is nothing more ’than,. as observed by Dowrick in Justice According  to the English ,Common Lawyers (1961 ed. p. 195), a precipitate of  the notion of legal justice.  In other words it  is  the principle that judicial decisions have a binding  character. But  in India the position is not quite the same.  Here  the decision of a High Court is not even always binding upon  it in  the sense that it can be reconsidered by a  Full  Bench. No doubt its decision may bind all courts subordinate to  it as also all Judges sitting singly or in division benches  of the  High  Court.   It is also true that  a  decision  of  a Division  Bench  of a High Court is binding on  every  other Division Bench of that High Court but there again there have been  cases  where  one  Full  Bench  has  reconsidered  the decision of an earlier Full Bench.  In any case the decision of a High Court has no more than persuasive character in  so far as this ’Court is concerned.  In that view the  decision of the Calcutta High Court, even though it may not have been dissented  from since the time it was rendered,  cannot,  in the  proper sense of the term be regarded as stare  decisis. What  could be stare decisis in this Court would be its  own previous  ,decisions.   But  even  here  instances  are  not wanting  where, unlike perhaps the House of Lords,  we  have considered ourselves free to go back on previous  decisions. (See  The  Bengal Immunity Company Limited v. The  State  of Bihar ors.  3    Finally, even where a decision has not been (1) (1886) I. L. R. 13 Cal. 221 (2) (1919) I. L. R. 43 Mad. 51 (3)  [1955] 2 S. C. R. 603 170 dissented  from for a long time, but has on the  other  hand been  followed,  it  is  not  entitled  to  be  treated   as immutable, particularly where it deals only with a  question appertaining  to  the  adjective law, such  as  the  law  of limitation.  There may be a great deal to be said in  favour of   not  disturbing  even  erroneous  decisions   affecting substantive rights to property which have stood  undisturbed for  a  long  time  on the ground that  such  a  course  may unsettle  existing titles to property.  But this or  similar considerations  which would justify leaving  such  decisions undisturbed  would  not stand in the way  of  overruling  an erroneous decision on a matter appertaining to the adjective law however ancient the decision may be(1).  Therefore, I do not  feel myself persuaded to hold that the  present  appeal

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can be regarded as of a type falling within the first column of art. 156 of the First Schedule to the Limitation Act. In order to deal with the second ground given by my  learned brother  it is necessary to reproduce the provisions  of  s. 29, sub-s. (2) of the Limitation Act.  They run thus:               "Where any special or local law prescribes for               any  suit, appeal or application a  period  of               limitation    different   from   the    period               prescribed therefor by the First Schedule, the               provisions  of  section 3 shall apply,  as  if               such  period were prescribed therefor in  that               Schedule,  and for the purpose of  determining               any  period of limitation prescribed  for  any               suit, appeal or application by any special  or               local law-.               (a)   the Provisions contained in section  4.,               sections  9 to 18, and section 22 shall  apply               only in so far as, and to the extent to which,               they  are  not  expressly  excluded  by   such               special or local law; and               (b)   the  remaining  provisions of  this  Act               shall not apply." (1) See Allen, Law in the, making (5th edn.) p. 209 fn. 3 171 While  expressing the view that the legislature has not  ex- pressed itself happily while enacting this provision he  has agreed with the view taken in Canara Bank Ltd. v. The Warden Insurance  Co., Ltd., Bombay(1), which was followed  by  the High  Court  of Madhya Pradesh in  Beharilal  Chaurasiya  v. Regional  Transport Authority(1).  In that case  the  Bombay High Court has held that art. 156 is attracted on the ground that  the  period provided by the special law  is  different from  that  contained  in the First  Schedule.   With  great respect to the learned Judges, I find it difficult to strain the  language  used in the first limb of s. 29 (2)  in  this manner.  The legislature has in clear terms spoken of  cases in  which a special or local law has prescribed for a  suit, appeal or an application a period of limitation  "different" from  that  prescribed  by the  First  Schedule.   Now,  the governing   words   are  "suit,  appeal   or   application". Therefore, what has to be seen is whether a suit, appeal  or application under a particular local or special law is of  a kind  similar  to one for which a period  of  limitation  is prescribed in the First Schedule.  The first limb of  sub-s. (2)  of  s. 29 is concerned only with  proceedings  of  this kind,  that is, proceedings under special or local  law  for which  a  period  of limitation is  provided  in  the  First Schedule.   If for such a proceeding the period to be  found in  the  First Schedule is different  from  that  prescribed under  a  special  or local law  certain  consequences  will follow  under  the  provision.   I do  not  think  that  any inconvenience would be caused by giving literal and  natural interpretation to the expression used by the legislature  in the  first portion of sub-s. (2) of s. 29 because  cases  of other kind can easily come under the second portion thereof. Since I agree with my learned brother about what he has said regarding the second limb of sub-s. (2) of s. 29 the  aapeal must be dismissed with costs as proposed by him. (1) I. L. R. 1952 Bom. 1083.                                       Appeal dismissed. (2)  A.I.R. 1961 M. P. 75. 172