JUDGMENT : Joseph Vithayathil, J. This revision petition was referred to a Full Bench of the following order: “The second defendant is the revision petitioner. The revision petition is from an order allowing the restoration of a suit which was dismissed for default. It was originally filed as a Civil Miscellaneous appeal. As no appeal lies from such an order the appellant applied to have the civil miscellaneous appeal converted into a revision petition and that petition was granted. 2. The suit was filed on 7.5.1125 and it was dismissed for default on 22.10.1951. On 21.12.1951 the plaintiff applied under O. IX, R. 9 of the Code of Civil Procedure for setting aside the order dismissing the suit and for restoring it to file. An application to excuse the delay in filing the petition was also filed on 2.2.1952. No orders seem to have been passed on that petition. The plaintiff objected to the petition being allowed. The court below allowed the restoration petition by its order dated 1.4.1952. The revision petition is from that order. 3. The point urged in the revision petition is that the court below had no jurisdiction to allow the petition which was filed more than 30 days from the date of the dismissal of the suit and which was therefore barred by limitation. When this suit was filed the Travancore Code of Civil Procedure was in force. O. IX, R. 9 of that Code contained a provision to the effect that S. 5 of the Travancore Limitation Act would apply to an application under that Rule. That section empowers the court to excuse the delay in making the application if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed time. The Travancore Code of Civil Procedure was replaced by the Indian Code on 1.4.1951 by Act II of 1951 (Central). The Indian Code does not contain a provision similar to that contained in the Travancore Code making S. 5 of the Limitation Act applicable to an application under O.IX, R.9. In exercise of the powers conferred on the High Court by S.122 of the Code of Civil Procedure to annul, alter or add to the Rules in the First Schedule, this High Court amended O. IX, R. 9, and made S. 5 of the Limitation Act applicable to an application under that Rule. In exercise of the powers conferred on the High Court by S.122 of the Code of Civil Procedure to annul, alter or add to the Rules in the First Schedule, this High Court amended O. IX, R. 9, and made S. 5 of the Limitation Act applicable to an application under that Rule. This amendment came into force only on 14.5.1952, i.e., after the date of the order of the Court below even though it was published in the Gazette dated 5.2.1952. The learned District Judge proceeded on the basis that the amendment was in force on the date of the order, i.e., 1.4.1952. It is argued for the revision petitioner that the law that was in force when the restoration application was filed, i.e., O. IX, R. 9, of the Indian Code of Civil Procedure, should apply to the case, while the counter-petitioner contends that it is either the Travancore Code which was in force when the suit was filed or the Indian Code as amended by the High Court which is in force at present that should apply to the case. 4. This question came up for consideration before this Court in C.R.P. No. 444 of 1952 which was disposed of by our learned brother Mr. Justice P.K. Subramonia Iyer on 29.8.1952. In that case, the suit was filed in 1950 and was decreed ex-parte, on 26.11.1951. The first defendant applied on 11.2.1952 under O. IX, R. 13, of the Code of Civil Procedure for setting aside the ex-parte decree and also filed a petition to excuse the delay in making the application. The Court excused the delay and allowed the application to set aside the ex-parte decree on certain terms. In the revision petition filed from that order the plaintiff contended that it was the Indian Code of Civil Procedure that applied to the case and that, therefore, the Court had no jurisdiction to admit the application which was presented after the prescribed time. This contention was repelled by our learned brother with the following observation: “Schedule I which contains the Orders and Rules, no doubt has the force of law but it is not a part of the Code that is made applicable to a State where Rules existed. This contention was repelled by our learned brother with the following observation: “Schedule I which contains the Orders and Rules, no doubt has the force of law but it is not a part of the Code that is made applicable to a State where Rules existed. It is open for a State to which the Code is made applicable to accept or not to accept either the whole or in part of the body of the rules contained in the schedule to the Indian Code of Civil Procedure. It would follow that there is no scope for any conflict between the Indian Code and the Travancore Code. At the time the application was made Rules of the Travancore Code were in force which enable the Court to extend the time for an application to set aside an ex parte decree. By virtue of S. 20 clause (2) of Act II of 1951 those rules continued to be in force until the new Rules framed by this High Court came into force on 14.5.1952 which also contained a provision similar to the one in the Travancore Code enabling the Court to extend the time for making an application for setting aside an ex-parte decree. The result is from the start the Court did possess and throughout retained and even now has the jurisdiction to extend the time for an application under O. IX, R. 13. The contention urged by learned counsel for the plaintiff that the court had no jurisdiction to extent time has, therefore, to be repelled.” 5. The question raised in this Revision Petition is one of considerable importance and we think that it is necessary that there is an authoritative ruling of this Court on the point. With regard to the question whether Schedule 1 of Code of Civil Procedure which contains the Orders and Rules forms part of the Code a view different from that taken by our learned brother is possible. S. 2, sub-s. (1) of the Code says that “Code includes Rules” and sub-s. (18) says that ‘Rules’ means Rules and Forms contained in the First Schedule or made under S. 122 or S. 125". S. 2, sub-s. (1) of the Code says that “Code includes Rules” and sub-s. (18) says that ‘Rules’ means Rules and Forms contained in the First Schedule or made under S. 122 or S. 125". S.20 of Act II of 1951 provides thus: “(1) if, immediately before the date on which the said Code comes into force in any Part B State there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed: Provided that the repeal shall not affect- (a) the previous operation of any law or repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or (c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. (2) Subject to the provisions contained in sub-s. (1), notifications published declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under any enactment hereby repealed shall, so far as they are consistent with the said Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the said Code and by the authority empowered thereby in such behalf.” “The question for consideration is whether by virtue of sub-s. (2) of S. 20 of the Orders and Rules of the Travancore Code of Civil Procedure continued to be in force in this State even after the introduction of the Indian Code into the State. It is expressly stated in sub-s. (2) that it is subject to the provisions contained in sub-s. (1). In the circumstances we think it necessary that the matter is placed before a Full Bench for an authoritative ruling. We, therefore, refer the following questions to a Full Bench: (1) Whether it was the Orders and Rules of the Indian Code of Civil Procedure or those of the Travancore Code of Civil Procedure that were in force in the Travancore area of this State between 1.4.1951 and 14.5.1952? We, therefore, refer the following questions to a Full Bench: (1) Whether it was the Orders and Rules of the Indian Code of Civil Procedure or those of the Travancore Code of Civil Procedure that were in force in the Travancore area of this State between 1.4.1951 and 14.5.1952? (2) Whether, in a case in which a suit filed in the Travancore area before 1.4.1951 is dismissed for default after 1.4.1951 and an application for restoration of the suit is made after 1.4.1951 but before 14.5.1952, the applicant can avail himself of the provision contained in S. 5 of the Limitation Act? 6. The Revision Petition itself will be posted before the Full Bench for disposal”. Sd/- K.A. Gangadhara Menon,Judge, Sd/- Joseph Vithayathil, Judge”. Since the facts of the case are stated in the order of reference it is not necessary to repeat them. 2. The first question referred to the Full Bench is whether it was the Orders and Rules of the Indian Code of Civil Procedure or those of the Travancore Code of Civil Procedure that were in force in the Travancore area of the State between 1.4.1951 and 14.5.1952, i.e., between the date when the Indian Code of Civil Procedure, Act V of 1908, was introduced into this State by Act II of 1951 (The Code of Civil Procedure (Amendment) Act and the date of amendment of O. IX, R. 9 of the Code by this Court by which S. 5 of the Limitation Act was made applicable to an application under that Rule. According to learned counsel for the respondent it was only the sections of the Indian Code of Civil Procedure that were introduced into the State by Act II of 1951 and not the Schedule containing the Orders and Rules. It was argued that the Schedule does not form part of the Code and that the Orders and Rules continued in Schedule I of the Travancore Code of Civil Procedure must be deemed to have contained in force in the Travancore area of the State even after the introduction of the Indian Act. I do not find my way to accept this argument. By Act II of 1951 the Indian Code of Civil Procedure, Act V of 1908, was made applicable to this State also. Code is defined in S. 2, sub-s. (1) thus:- “2. I do not find my way to accept this argument. By Act II of 1951 the Indian Code of Civil Procedure, Act V of 1908, was made applicable to this State also. Code is defined in S. 2, sub-s. (1) thus:- “2. In this Act, unless there is anything repugnant in the subject or context (1) ‘Code’ includes Rules”. S. 2, sub-s. (18) contains the definition of Rules. It reads:- 125.” S. 121 provides:- “The Rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.” In the light of these definitions there can be no doubt that the Code includes Schedule I containing the Orders and Rules. Whenever the sections alone are referred to the expression used in the Code is “the body of the Code” as distinct from “the Code”. (Vide Ss. 96, 104, 121 and 128). The sections are so clear that it may not be necessary to refer to any authority in support of the position that the Code of Civil Procedure includes not only the sections of the Code but also the Orders and Rules contained in Schedule I. Reference may, however, be made to a decision of the Madras High Court by a Full Bench of five Judges, Viz., Bademian Saheb v. Janken Saheb (1938 Madras 438). In that case Leach, C.J., who wrote the judgment observed:- “S. 2(1) makes it clear that the Code includes the Rules in Schedule I. Therefore, O. 20, R. 17, is as much a part of the Code as the sections forming the body of the Act.” In an earlier case, i.e., In re DT. Munsiff at Thiruvalloor (ILR 37 Madras 17) the Madras High Court had interpreted the word ‘Code as used in S. 157 as meaning “the body of the Code”. Munsiff at Thiruvalloor (ILR 37 Madras 17) the Madras High Court had interpreted the word ‘Code as used in S. 157 as meaning “the body of the Code”. Referring to this decision Leach, C.J., said:- “The learned Judges obviously overlooked the fact that by virtue of S. 2(1) of the Rules in Schedule 1 of the Code of 1908 are as such a part of the Code as the sections themselves.” The relation between the body of the Code and the Rules in Schedule I was thus described by Sir Lawrence Jenkins, C.J., in Mani Mohan Mandal v. Ram Taran Mandal (43 Calcutta 148); “The body of the Code is fundamental and is unalterable except by the Legislature: The Rules are concerned with details and machinery and can be more rapidly altered. Thus it will be found that the body of the Code creates jurisdiction while the Rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the Rules.” In Sachindra Kumar v. Uzha Prova De (1949 Calcutta 690) Mitra, J., observed: “In order to ascertain what the jurisdiction of the Court in a particular matter is we have to look not merely to the body of the Code but also to Rules in Schedule I which may have set limits to the jurisdiction apparently created in wide and general terms by the body of the Code. Simply because the provision which is O. 21, R. 5, has been placed in Schedule I it does not follow that it cannot touch the jurisdiction of the Court”. 3. That the Legislature intended to introduce into the State not only the sections of the Code of 1908 but also the Orders and Rules in Sch. I is clear from the provisions of the Act II of 1951. The proviso to S. 2 of the Act by which the Code was extended to the whole of India except certain specified areas reads thus:- “Provided that Ss. 36 to 43 and O. XXXIV in the First Schedule shall extend also the Amindivi Islands and East Godavari, the West Godavari and Visakhapatanam Agencies in the State of Madras and S. 48 shall extend also to the said Agencies”. 36 to 43 and O. XXXIV in the First Schedule shall extend also the Amindivi Islands and East Godavari, the West Godavari and Visakhapatanam Agencies in the State of Madras and S. 48 shall extend also to the said Agencies”. S. 18 of the Act provides:- In R. 1 of O. XL of the First Schedule to the said Code, after the words “said Act or law” the words and letter “or to courts in Part B States exercising a corresponding jurisdiction” shall be inserted”. It is, therefore clear that it was not only the sections of the Indian Code of Civil Procedure, Act V of 1908, but also Sch. I of that Act containing the Orders and Rules that were introduced into the State by Act II of 1951. 4. S. 20(1) of Act II of 1951 is to the following effect:- “If immediately before the date on which the said Code comes into force in any Part B State there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed: Provided that the repeal shall not affect: (a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued, or incurred under any law so repealed; or (c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act and not been passed.” It is clear from the sub-section that subject to the provisions contained in the proviso the law corresponding to the Indian Code of Civil Procedure (Act V of 1908) that was in force in this State stood repealed on the date on which Act II of 1951 came into force. Therefore, if the law corresponding to the Indian Code of Civil Procedure that was in force in the Travancore area of the State was the Travancore Code of Civil Procedure, that Code including the Sections and Schedule containing the Orders and Rules has ceased to be in force from 1.4.1951 subject to the provisions contained in the proviso. 5. Therefore, if the law corresponding to the Indian Code of Civil Procedure that was in force in the Travancore area of the State was the Travancore Code of Civil Procedure, that Code including the Sections and Schedule containing the Orders and Rules has ceased to be in force from 1.4.1951 subject to the provisions contained in the proviso. 5. It was, however, argued for the respondent that sub-s. (2) of S. 20 of the Act II of 1951 kept alive the provisions contained in O. IX, R. 9, of the Travancore Code of Civil Procedure. Sub-s. (2) of S. 20 is as follows:- “Subject to the provisions contained in sub-s. (1) notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under any enactment hereby repealed shall, so far as they are consistent with the said Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the said Code and by the authority empowered thereby in such behalf.” According to learned counsel for the respondent rules mentioned in the sub-section include Rules contained in Schedule I of the Code of Civil Procedure that was replaced by the Indian Code (Act V of 1908). Reliance was placed on the definition of Rules in S. 2, sub-s. (18) already referred to. According to that definition Rules include not only the Rules contained in the First Schedule but also rules made under S.122 or S. 125. S.122 reads thus:- “High Courts for Part A States and Part B States may from time to time after previous publication, make rules regulating their own procedure and the procedure of the civil courts subject to their superintendence and may by such rules annul, alter or add to all or any of the rules in the First Schedule.” S. 125 confers similar power on the High Courts other than those specified in S.122. It is therefore, argued that rules mentioned in sub-s. (2) of S. 20 of the Act II of 1951 include Rules contained in Schedule I of the Code. It is therefore, argued that rules mentioned in sub-s. (2) of S. 20 of the Act II of 1951 include Rules contained in Schedule I of the Code. According to learned counsel for the petitioner rules mentioned in the sub-section are only those rules made under the Code which do not form part of Schedule I. Although, ‘Rules’ as defined in S. 2(18) include both Rules contained in the First Schedule and also rules made under the Code but which do not form part of the Schedule, I am inclined to take the view that sub-s. (2) of S. 20 does not refer to Rules contained in the First Schedule of the Code. That the Code contemplates two classes of rules is clear from Ss. 121, 122 and 127. S. 121 provides that the rules in the First Schedule shall have effect as if enacted in the body of the Code. S. 122 which confers on the High Court power to make rules provides that the High Court may by such rules, alter or add to all or any of the Rules in the First Schedule. S. 127 provides that rules made by the High Court shall have the same force and effect “as if they had been contained in the First Schedule”. It is clear from this that under the Code there can be two classes of rules, ie., Rules contained in the First Schedule which may be annulled, altered or added to by the High Court and other rules which do not form part of the First Schedule but will have the same force and effect as if they had been contained in the First Schedule. Rules contained in the Travancore Civil Courts Guide and the Civil Rules of Practice in force in the Cochin area of the State are rules of this latter category. I think that the rules mentioned in sub-s. (2) of S. 20 of Act II of 1951 are this class of rules and not those contained in the First Schedule of the Code. 6. Another argument based on S. 20(1)of the Act II of 1951 was this: What is repealed under S. 20(1) is the law corresponding to the Indian Code of Civil Procedure (Act V of 1908) that was in force in a Part B State. 6. Another argument based on S. 20(1)of the Act II of 1951 was this: What is repealed under S. 20(1) is the law corresponding to the Indian Code of Civil Procedure (Act V of 1908) that was in force in a Part B State. According to the definition of ‘Code’ given in S. 2 of the Code of Civil Procedure it must include not only Rules contained in the First Schedule but also rules made under S. 122 or S. 125. Therefore, the law mentioned in S. 20(1) of the Act II of 1951 must include not only Rules contained in the First Schedule but also other rules made under S. 122 or S. 125. If all these rules are repealed by sub-s. (1) of S. 20 there is no meaning in providing in sub-s. (2) of that section that rules made under the repealed enactment will continue to have the force of law so long as they are consistent with the Indian Code, Act V of 1908. It was pointed out that sub-s. (2) is not a proviso to sub-s. (1) and that sub-s. (2) expressly says that it is subject to the provisions contained in sub-s. (1). It was, therefore, argued that what the Legislature intended to repeal under sub-s. (1) can only be the body of the Code, namely, the sections, and not the Rules contained in the First Schedule. It was also pointed out that the definition of ‘Code’ given in S. 2 is subject to the condition contained in the Section itself that there is “nothing repugnant in the subject or context”. 7. This argument is based on the assumption that the expression ‘law corresponding to the Code’ used in sub-s. (1) of S. 20 of Act II of 1951 must necessarily include not only Rules contained in the First Schedule of the repealed Code but also other rules made under that Code. As stated already, a distinction has to be drawn between Rules contained in the First Schedule and other rules made under the Code. Although the latter category of Rules will have the same force and effect ‘as if they had been contained in the First Schedule’ of the Code it cannot be said that they form part of the Code. As stated already, a distinction has to be drawn between Rules contained in the First Schedule and other rules made under the Code. Although the latter category of Rules will have the same force and effect ‘as if they had been contained in the First Schedule’ of the Code it cannot be said that they form part of the Code. What was introduced into this State by Act II of 1951 was Act V of 1908 i.e., the Sections and Schedules contained in that Act. In fact what Act II of 1951 did was to amend S. 1 of the Act V of 1908 so as to extend that Act to the whole of India except certain specified areas Act V of 1908 contains only sections and schedules. The law corresponding to that Act that was in force in the Travancore area of the State can only be the Travancore Code of Civil Procedure, namely, the sections and schedules contained in that Code. It cannot, in my opinion, include rules made under that Code which did not form part of the Code. It is those rules which are saved under sub-s. (2) of S. 20 of the Act II of 1951. 8. It has also to be noted that the rules mentioned in sub-s. (2) of S. 20 of Act II of 1951 are only rules made under the repealed enactment. Those rules cannot, therefore, be Rules that were originally in the enactment itself. It follows from this that the sub-section will not apply to Orders and Rules that were originally in the First Schedule of the Travancore Code of Civil Procedure. If that is the case there is little justification in making the sub-section applicable to Rules introduced into the First Schedule by way of addition or alteration. On principle there can be no justification in making a distinction between Rules that were originally in the First Schedule and those that were subsequently introduced into the Schedule by way of alteration or addition so far as the applicability of sub-s. (2) is concerned. The more reasonable interpretation of the sub-section seems to be that it refers only to rules made under the Code but did not form part of Code. The more reasonable interpretation of the sub-section seems to be that it refers only to rules made under the Code but did not form part of Code. “The law corresponding to the Code” mentioned in sub-s. (1) of S. 20 and the “enactment repealed” mentioned in sub-s. (2) can refer only to the Code of Civil Procedure including the Sections and Schedules. 9. Sub-s. (2) of S. 20 is based on S. 24 of the General Clauses Act (Indian) which reads thus: “Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form, or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superceded by any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the provisions so re-enact and when any Central Act or Regulation, which, by a notification under S. 5 or 5-A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section.” The Legislature obviously regarded the Code of Civil Procedure including the sections and the schedules as an enactment and the rules made under that Code but which did not form part of the Code as rules made under that enactment and incorporated in S. 20(2) of Act 11 of 1951 the substance of the provision contained in S. 24 of the General Clauses Act since such a provision is necessary for the working of the new Code until new rules are made under that Code. The difficulty in interpreting the saving clause in this case is due to the fact that besides the rules made under the Code which do not form part of the Code, the Code itself contains rules which rules themselves may be annulled, altered or added to by rules made under the Code. The difficulty in interpreting the saving clause in this case is due to the fact that besides the rules made under the Code which do not form part of the Code, the Code itself contains rules which rules themselves may be annulled, altered or added to by rules made under the Code. It has also to be noted that the rules mentioned in sub-s. (2) go along with ‘notifications published, declarations made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred’ under the enactment repealed. A similar provision is contained in S. 157 of the Code. That section reads: “Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, behalf.” In the Code of Civil Procedure that was in force in India before the enactment of Act V of 1908 there were only sections and Orders and no Rules. There can, therefore, be no difficulty in interpreting the expression ‘rules’ in S. 157 as rules corresponding to the rules contained in the Travancore Civil Courts Guide or the Cochin Civil Rules & Practice. There is every reason to hold that it is the same class of rules that is referred to in sub-s. (2) of S. 20 of Act II of 1951. Reference may also be made in this connection to Mulla’s Commentaries on the Code of Civil Procedure (1953 Edition) page 5, where we find the following passage relating the effect of Act II of 1951: “The rules of Civil Procedure which were in force in Part B States are repealed with the usual savings mentioned in S. 20 of Act II of 1951, that is to say, the previous operation of the law hitherto in force in those States or anything duly done or suffered thereunder or any right, privilege, obligation or liability acquired, accrued or incurred thereunder have been saved.” It has to be noted that the words used are “the rules of Civil Procedure” and not the Sections or body of the Code of Civil Procedure. 10. 10. For the above reasons I hold that it was not only the sections of the Indian Code of Civil Procedure (Act V of 1908) that were introduced into this State by Act II of 1951 but also the Orders and Rules contained in that Code, that it was not only the sections of the Travancore Code of Civil Procedure that were repealed by S. 20, sub-s. (1) of that Act but also the Orders and Rules contained in that Code and that the rules preserved by sub-s. (2) of that section so far as the Travancore area of the State is concerned are only the rules made under the Travancore Code of Civil Procedure which did not form part of that Code. It follows from this that the answer to the first question referred to the Full Bench should be in favour of the revision petitioner. The answer is that it was the Orders and Rules of the Indian Code of Civil Procedure and not those of the Travancore Code of Civil Procedure that were in force in the Travancore area of this State between 1.4.1951 and 14.5.1952. 11. In this view of the case it is not necessary to consider the question whether O.IX, R.9 of the Travancore Code of Civil Procedure is consistent with the corresponding provision of the Indian Code, Act V of 1908. But since the question was raised by learned counsel for the respondent, I must say that the provision in O.IX, R.9 of the Travancore Code making S. 5 of the Limitation Act applicable to applications under that Rule is not consistent with the Indian Code which does not contain that provision. Learned counsel for the respondent contended that the mere fact that O. IX, R. 9 of the Travancore Code contained a provision to the effect that S. 5 of the Limitation Act would apply to applications under that Rule would not make the Rule inconsistent with the corresponding Rule of the Indian Code. I am unable to accept this argument. It is by reason of this provision in the Travancore Code that an application for restoration of a suit dismissed under O. IX, R. 9 filed after the expiry of 30 days from the date of the dismissal could be entertained by the Court while under the Indian Code such an application cannot be entertained. It is by reason of this provision in the Travancore Code that an application for restoration of a suit dismissed under O. IX, R. 9 filed after the expiry of 30 days from the date of the dismissal could be entertained by the Court while under the Indian Code such an application cannot be entertained. It was further contended that it is by reason of the provisions of the Limitation Act and not by reason of anything contained in the Code of Civil Procedure that this difference is brought about. This argument also does not appear to be acceptable. The effect of the provision contained in O. IX, R. 9 of the Travancore Code of Civil Procedure is to give the Court jurisdiction to entertain an application under that Rule filed after the expiry of the period of limitation prescribed by the Limitation Act. Owing to the absence of such a provision in the Indian Code the Court has no jurisdiction to entertain an application under the Rule filed after the expiry of the period of limitation prescribed by the Limitation Act. I am of opinion that this amounts to an inconsistency. If, therefore, the rules mentioned in sub-s. (2) of S. 20 of Act II of 1951 includes Rules in the First Schedule of the Travancore Code of Civil Procedure it has to be held that sub-r. 3 of that Rule making the provisions of S. 5 of the Limitation Act applicable to applications under that Rule is not consistent with the Indian Code of Civil Procedure, Act V of 1908, and that consequently that sub-rule was not in force in this State between 1.4.1951 and 14.5.1952. 12. The second question referred to the Full Bench is whether in a case in which the suit filed in the Travancore area of the State before 1.4.1951 is dismissed for default after 1.4.1951 and an application for restoration of the suit is made after 1.4.1951 but before 14.5.1952 the applicant can avail himself of the provisions contained in S. 5 of the Limitation Act. In short, the question is whether it is the provisions of the Indian Code of Civil Procedure that was introduced into the State on 1.4.1951 or those of the Travancore Code which was in force when the suit was filed that should apply to the case. In short, the question is whether it is the provisions of the Indian Code of Civil Procedure that was introduced into the State on 1.4.1951 or those of the Travancore Code which was in force when the suit was filed that should apply to the case. The suit was filed on 7.5.1125 when the Travancore Code of Civil Procedure was in force. It was dismissed for default on 22.10.1951 and the application for restoration was filed on 21.12.1951. The amendment of O. IX, R. 9 of the Code reintroducing the provision of the Travancore Code took effect on 14.5.1952. The question for consideration is whether it is the Travancore Code or the Indian Code before it was amended or the amended Indian Code that should apply to the case. According to learned counsel for the respondent it is the law that was in force when the action was brought that should govern the case. According to him, the right to apply for restoration of the suit in case it is dismissed for default taking advantage of the provision in S. 5 of the Limitation Act, was of the nature of the vested right which the plaintiff could avail himself of notwithstanding the replacement of the Travancore Code by the Indian Code after the institution of the suit. I do not think that there is any force in this argument. The new Code has not taken away the right of the plaintiff to apply for restoration of the suit if it is dismissed for default. The effect of the introduction of the new Code is only to shorten the period of limitation for applying for restoration of a suit dismissed for default. No person can be said to have a vested right to bring an action or to prefer an appeal or to make an application within a particular time. These are only maters of procedure and the rule is that enactments affecting mere procedure will have retrospective effect so as to apply even to proceedings which are pending when the enactment comes into force unless it is expressed otherwise in the enactment itself. This question was considered by this Court in Sankaranarayana Panicker v. Narayana Panicker ( 1952 KLT 339 ). This question was considered by this Court in Sankaranarayana Panicker v. Narayana Panicker ( 1952 KLT 339 ). In view of the exhaustive discussion of the case law in that case by His Lordship Koshi, C.J., it is not necessary to discuss the question elaborately in this case. Reference was made in that case to the following passage in Maxwell on the Interpretation of Statutes, 10th Edition, page 225: “No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode”. The learned author further says: “If the time for pleading were shortened, or new powers of amending were given, it would not be open to the parties to gainsay such a change, the only right thus interfered with being that of delaying or defeating justice, a right little worthy of respect”. In Freeman v. Moyes (1834 IA & E 338) it was held that S. 31 of the Civil Procedure Act (1883 (c. 42) which provided that in actions brought by executors the plaintiff would be liable for costs was applicable to an action begun before the Act came into operation. Similarly in Watton v. Watton (1866) LR IPD 227) it was held that the provision which extended the time for making decrees nisi absolute from three to six months applied to suits pending when the Act came into operation. Wright v. Hale ((1860) 30 LJ Ext. 40) and Kimbray v. Draper ((1868) LR 3 QB 160) are also cases in which the same principle was followed. In Wright v. Hale Pollock, C.B., observed: “There is a considerable difference between new enactments which affect vested rights and those which merely affect the procedure in courts of justice, such as those relating to the service of proceedings or what evidence must be produced to prove particular facts...................When an act alters the proceedings which are to prevail in the administration of justice and there is no provision that it shall not apply to suits then pending I think, it does apply to such action”. Channel, B., said: “In dealing with Act of Parliament which have the effect of taking away rights of action, we ought not to construe them as having retrospective operation, unless it appears clearly that such was the intention of the Legislature; but the case is different where the Act merely regulates practice and procedure.” Wilde, B., another Judge who took part in the decision observed: “The rule applicable to cases of this sort is that when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act”. The leading case on the question is Colonial Sugar Refining Co. v. Irving ((1905) AC 369). Referring to that case Lord Balanesburgh observed in Delhi Cloth Mills v. Income Tax Commissioner, Delhi (1927 PC 242): “The principle which Their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refinery Co. v. Irving (1905 AC 369) where it is in effect laid down that while provisions of a Statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in exercise at the passing of the Statute are not to be applied retrospectively in the absence of express enactment or necessary intendment”. Reference may also be made to the observation of Sulaiman, C.J., in Ram Karan v. Ram Das (1931 All. 635) which was a decision by a Full Bench of five Judges. His Lordship said: “No doubt, a substantial right is not assumed to be taken away by a new Act unless it expressly says so. But a right to sue in one court rather than another or a right to wait for a particular period of time before suing is not a substantive right. The election of forum and the period of limitation are ordinarily matters of procedure only. The selection of a court in no way affects the right of suit itself. The Limitation Act does not necessarily extinguish the right, though it certainly places a bar against the remedy by suit.” 13. The election of forum and the period of limitation are ordinarily matters of procedure only. The selection of a court in no way affects the right of suit itself. The Limitation Act does not necessarily extinguish the right, though it certainly places a bar against the remedy by suit.” 13. Applying the principles enunciated above it has to be held that it is O. IX, R.9 of the Indian Code of Civil Procedure which was in force in the State when the restoration application was filed by the plaintiff and not the corresponding provision of the Travancore Code which was in force when the suit was instituted that should apply to the case. 14. So far as the subsequent amendment of O.IX, R.9, is concerned, that amendment came into effect only after the restoration application was disposed of by the learned District Judge, even though it was published in the Gazette dated 5.2.1952. The plaintiff cannot, therefore, avail himself of this amendment. Sitting in revision we are only concerned with the correctness of the order of the learned Judge when it was passed. The subsequent amendment of the law cannot be taken into consideration in deciding that question. This is not an appeal from the order of the Court below and in no sense can it be said that the proceedings which gave rise to the order were pending when the amendment came into effect. In Delhi Cloth Mills v. Income Tax Commissioner, Delhi (1927 PC 242) already referred to, it was observed thus: “Their Lordships can have no doubt that provisions which if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided”. It is, therefore, clear that the amendment of O.IX, R.9, after the date of the order of the learned Judge cannot be taken into account in determining the correctness of that order. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided”. It is, therefore, clear that the amendment of O.IX, R.9, after the date of the order of the learned Judge cannot be taken into account in determining the correctness of that order. I, therefore, answer the second question in the following manner: In a case in which a suit filed in the Travancore area of the State before 1.4.1951 is dismissed for default after 1.4.1951 and an application for restoration of a suit is made before 14.5.1952 the applicant cannot avail himself of the provision contained in S.5 of the Limitation Act. 15. The result is that the plaintiff’s application under O. IX, R. 9, Civil Procedure Code, for setting aside the order dismissing the suit for default filed after the expiry of 30 days from the date of the dismissal of the suit is barred under Art. 163 of the Limitation Act and so long as S. 5 of the Limitation Act is not applicable to applications under O. IX, R. 9, the Court will have no jurisdiction to condone the delay in making the applications. (Vide Samankatha v. Y. James (1947 Madras 153), Kali Prasad v. Parameshwar Prasad (1929 Allahabad 127) and D’Cruz v. Mrs. Pitts (1933 Patna 557). The bar of limitation cannot be got over by the Court invoking the aid of its inherent power under S. 151 CPC (Vide Debendra Nath Dutt v. Sathyabala Dasi (1950 Calcutta 217), Madharam v. Mt. Tuppo Rubhani (1931 Cal. 319), Mt. Karam Bhari v. Jagannath (1936 Lahore 495), Chinnappa Naidu v. Deenadayalu Naidu (1948) Mad. 480), Sundarese v. Subba Rao (1933 Mad. 258), KPLSS Chettiar v. Official Receiver, Ramnad (1935 Rangoon 466), SGM Samson v. Silvaran (1924 Rangoon 274) and Eipe v. Varghese (28 TLJ 622) 16. It follows from this that the learned District Judge acted without jurisdiction in allowing the plaintiff’s application to set aside the order dismissing the suit. The order of the Court below is, therefore, set aside and the revision petition is allowed with costs. It follows from this that the learned District Judge acted without jurisdiction in allowing the plaintiff’s application to set aside the order dismissing the suit. The order of the Court below is, therefore, set aside and the revision petition is allowed with costs. K. Sankaran, J. The discussion which we had after the hearing of the arguments in this case was over, made it clear that an unanimous decision was not possible on the questions raised before us, my learned brother Subramonia Iyer, J. having taken a view opposite to that on which my learned brother Vithayathil, J. and myself could agree. The answers formulated by Vithayathil, J., in his leading judgment to the questions referred to the Full Bench and also the reasons stated by him in support of his conclusions, have my entire concurrence, and I thought that it might not be necessary to add anything of my own to that judgment. But on seeing the dissenting judgment of my learned brother Subramonia Iyer, J., I think that in fairness to herself and my learned brother Vithayathil, J., it is only just and proper that I briefly advert to what I feel about the points arising for decision in this reference. 2. On the question as to whether Act II of 1951 had the effect of repealling only the Sections of the Travancore Code of Civil Procedure or the sections as also of the Orders and Rules contained in Schedule I of that Code, there is now no dispute. My learned brother Subramonia Iyer, J. has also now made it clear that the by Act II of 1951 the Travancore Code of Civil Procedure consisting of the sections in the body of the Code as also of the Orders and Rules in Schedule I, was repealed in toto and the Indian Code, Act V of 1908, consisting of the sections as well as the Orders and rules in Schedule I of that Code, was brought into force in this State as well. S. 20 of Act II of 1951 leaves no room for doubt on this question. Sub-s. 1 of S. 20 states that on the date on which Act V of 1908 was brought into force in any Part B State, the law that was in force in that State, corresponding to Act V of 1908, shall stand repealed. S. 20 of Act II of 1951 leaves no room for doubt on this question. Sub-s. 1 of S. 20 states that on the date on which Act V of 1908 was brought into force in any Part B State, the law that was in force in that State, corresponding to Act V of 1908, shall stand repealed. In sub-s. 1 of S. 2 of Act V of 1908, it is stated that the word “Code” as used in the Act includes rules. Sub-s. 18 of the same section defines the word “rules” as “rules means rules and forms contained in the First Schedule or made under S. 122 or under S. 125.” Thus it is clear beyond any doubt that what was brought into force in this State on 1.4.1951, the date notified under sub-s. 2 of S. 1 of Act II of 1951, was the Indian Code of Civil Procedure, Act V of 1908, consisting of the sections and also the Orders and Rules in Sch. I, after repealling the corresponding provisions of the Code of Civil Procedure that was till then in force in the State. The natural and necessary consequence of this change was that just as the sections of the Indian Code, the Orders and Rules in Schedule I of that Code also came into force in this State as well with effect from 1.4.1951 and continued to be in force till these Orders and rules were replaced by the new set of rules framed by this Court and brought into force with effect from 14.5.1952. R. 9 of O. IX of the Indian Code, which was in force during the interval, did not contain any provision corresponding to clause 3 of R. 9 of O. IX of the repealed Travancore Code and also to clause 3 of R. 9 of O. IX of the new set of rules brought into force on 14.5.1952. It is only by virtue of clause 3 of R. 9 of O. IX that the Court in enabled to invoke the aid of S. 5 of the Limitation Act and to entertain restoration application filed under R.9 beyond the period of 30 days prescribed under Art. 163 of the Limitation Act. It is only by virtue of clause 3 of R. 9 of O. IX that the Court in enabled to invoke the aid of S. 5 of the Limitation Act and to entertain restoration application filed under R.9 beyond the period of 30 days prescribed under Art. 163 of the Limitation Act. Even though the Indian Code did not contain such a provision, my learned brother Subramonia Iyer, J. has taken the view that an application filed under R.9 of O. IX subsequent to 1.4. 1951 and disposed of prior to 14.5.1952, could also be given the benefit of S. 5 of the Limitation Act. The conclusion reached by him is that “The application of the provisions of S. 5 of the Limitation Act, is attracted whether the rules that apply be those contained in the Travancore Code of Civil Procedure, or whether they be the rules framed by the Travancore-Cochin High Court which came into force on 14.5.1952, either by the continuance of the operation of the prior rule or by the retrospective operation of the later rule, as both have the consequence of avoiding an interregnum to which the provisions of S. 5 of the Limitation Act cannot be applied.” With all respect, I have to point out that the question cannot be left in such a state of doubt. The Full Bench has to give a clear and definite answer to the question. The answer should not be in the form of alternatives. It is obvious that the restoration application in question cannot at the same time be governed by the provisions of the Travancore Code and also by the provisions contained in the new set of rules brought into force on 14.5.1952. If the application is to be governed by the provisions of the Travancore Code, the new set of rules brought into force on 14.5.1952 can have no place in deciding the sustainability of the application. Similarly, if the later set of rules are to govern the application, the provisions of the Travancore Code will have no relevancy in deciding its fate. Since R. 9 of O. IX brought into force on 14.5.1952 is identical with R. 9 of O. IX of the Travancore Code, all that can be said is that the result of applying either of these rules will be the same. Since R. 9 of O. IX brought into force on 14.5.1952 is identical with R. 9 of O. IX of the Travancore Code, all that can be said is that the result of applying either of these rules will be the same. That aspect apart, I am clearly and definitely of opinion that neither the provisions of the Travancore Code nor the provisions of the new set of rules brought into force on 14.5.1952 could govern the restoration application in question, which was filed after 1.4.1951 and was disposed of prior to 14.5.1952. 3. The provisions of R. 9 of O. IX of the Travancore Code of Civil Procedure could be made to govern the present restoration application, only if it is deemed that the said rule continued to be in force in spite of the repeal of that Code on 1.4.51. The repeal was of the entire Code inclusive of the Orders and Rules in Schedule I and the usual savings provisions are those contained in sub-s. 2 and in the proviso to sub-s. 1 of S. 20. The proviso to sub-s. 1 states that the repeal shall not affect: “(a) The previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued, or incured under any law so repealed, or (c) any investigation, legal proceeding or remedy in respect of any such right, privilege obligation, liability, penalty, forfeiture or punishment, as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed”. Then comes sub-s. 2 which is expressly made subject to the provisions contained in sub-s. 1 and which states: “the notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under any enactment hereby repealed shall, so far as they are consistent with the said Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the said Code and by the authority empowered thereby in such behalf.” The word “rules” occurs in this sub-section and the inclusion of that word also in this sub-section is relied on as an argument in support of the contention that this sub-section has the effect of re-enacting the entire body of rules contained in Sch. I of the Travancore Code so far as they are consistent with the Central Code, even though the Travancore Code was repealed by sub-s. 1. In other words, the argument is that the repeal was only of the sections of the Travancore Code. If the Legislature intended only to repeal the sections of the Code and to keep Schedule I in tact, that intention could and would have been clearly stated in so many words. But sub-s. 1 of S. 20 as it stands will not sustain the interpretation that the repeal has been confined to the sections of the Travancore Code. It is also significant to note that the savings indicated by the proviso to sub-s. 1 are only in respect of the previous operation of the law repealed and of things duly done or suffered thereunder and of other consequences arising out of the previous operation of the repealed law. The same idea is emphasised in sub-s. 2 also by which the notifications published declarations and rules made forms framed etc. etc. under the repealed Code, have also been saved subject to the provisions of sub-s. 1. The “Rules” referred to in sub-s. 2 are undoubtedly the rules made under the repealed Code and which stand on a par with the notifications published, declarations made, scales prescribed, forms framed, etc. etc. under the same Code. It cannot be said that the Orders and rules contained in Schedule 1 also come under this category. No doubt the rules contained in Sch. etc. under the same Code. It cannot be said that the Orders and rules contained in Schedule 1 also come under this category. No doubt the rules contained in Sch. I of the Code as well as the rules framed in exercise of the rulemaking power conferred by the sections contained in Part X of the Code, have all the force of law. Since this position is undisputed, there appears to be no necessity to embark upon a discussion regarding the same. Even though every rule made under the Code has the force of law, it is apparent from the general scheme as envisaged in the Code that a distinction is sought to be maintained as between the rules contained in Sch. I and the other set of rules framed under the Code and which are kept outside the Schedule. This is made clear by S. 12 of the Code which states that the rules in the First Schedule shall have effect as if enacted in the body of the Code, until annulled or altered in accordance with the provisions of Part X of the Code. The rules thus altered or amended will still be rules in the First Schedule and will have effect as if enacted in the body of the Code. The new rules that may properly be added to the rules in this Schedule will also have the same effect. The rules in the First Schedule having the effect as if enacted in the body of the Code, cannot be put on a part with the notifications published, declarations and rules made, scales prescribed and forms framed under the repealed Code and which have been saved by sub-s. 2 of S. 20. The “Rules” referred to in this sub-section must undoubtedly be the rules which, though framed under the repealed Code, were distinct and separate from the category of rules contained in Sch. I. Rules other than those contained in Schedule I are those framed by the respective High Courts to regulate the special procedure to be followed by the Courts within the jurisdiction of such High Courts and naturally therefore these rules could not find a place in the Central Code, Act V of 1908. Such rules could continue to be in force in the respective States in spite of the replacement of the State Code by the Central Code. Such rules could continue to be in force in the respective States in spite of the replacement of the State Code by the Central Code. What is stated in sub-s. 1 of S.20 is that on the date on which the Central Code is brought into force in this State, the law in force in the State, corresponding to the Central Code, shall stand repealed. The law in force in the State which corresponded to the Central Code consisting of the Sections and rules in Sch. I, was the law as embodied in the sections and rules in sch. I of the State Code. It follows, therefore that by the introduction of the Central Code into this State, the rules framed by the Travancore High Court but which were not incorporated in Schedule I, were not repealed by sub-s. 1 of S. 20 of the Act II of 1951. These are the rules referred to in sub-s. 2 of S. 20 as continuing in force even after the introduction of the Central Code in the state, provided that such rules are consistent with that Code. The argument that the rules contained in Sch. I of the Travancore Code must be deemed to have been re-enacted by virtue of sub-s. 2 of S.20 of Act II of 1951, is untenable and must fail. 4. Since the entire rules contained in Sch. I of the Travancore Code were repealled on 1.4.1951 and were replaced by the rules in the corresponding Schedule of the Central Code and since none of the rules thus repealed has been saved or re-enacted by sub-s. 2 of S. 20 or by any of the other provisions contained in that Section, it is obvious that the restoration application filed after 1.4.1951 could not be dealt with in accordance with the provisions contained in R. 9 of O. IX of the Travancore Code. In this view of the matter, the question whether the said rule is consistent with the corresponding rule in the Central Code does not really arise for consideration. However, I wish to record my view on that question also, because I am unable to subscribe to the view which my learned brother Subramonia Iyer, J. has chosen to express on that question. However, I wish to record my view on that question also, because I am unable to subscribe to the view which my learned brother Subramonia Iyer, J. has chosen to express on that question. According to my learned brother, the three clauses of R. 9 of O. IX can exist together and any question of inconsistency can arise only when co-existence of these different clauses is not possible. Nobody has contested the position that the third clause, making the provisions of S. 5 of the Limitation Act applicable to applications for restoration of suits dismissed for default, can exist along with clauses 1 and 2 regulating the procedure to be adopted in dealing with such applications. The question that has to be answered is whether the provision contained in R. 9 of O. IX of the Travancore Code is consistent with the corresponding provision contained in the Central Code. The decisions in Krishnamachariar v. Srirangammal (ILR 47 Mad. 824) and in Padarinath v. Thakor Das Shankar Das (ILR 53 Bom. 453) relied on by my learned brother, do not render any help in deciding that question. The main point that was decided in those two cases was that the addition of Clauses 3 to Rr. 9 and 13 of O. IX extending the provisions of S. 5 of the Limitation Act to applications under these rules, was not ultra vires of the rule-making powers of the High Court. No question of consistency between corresponding provisions in two different Codes, as in the present instance, arose in those two cases. Because of the existence of Clause 3 in R. 9 of O. IX of the Travancore Code a restoration application under that rule could be entertained even before the beyond of 30 days prescribed by Art. 163 of the Limitation Act. The absence in R. 9 of O. IX of the Central Code of a clause similar to Clause 3 of R.9 of O.IX of the Travancore Code, prevents the Court from entertaining a restoration application filed after the expiry of the said period of 30 days. Thus there can be no doubt that R. 9 of O. IX of the Travancore Code, having clause 3 added to it, is it not consistent with R. 9 of O. IX of the Central Code having no such clause added to it. Thus there can be no doubt that R. 9 of O. IX of the Travancore Code, having clause 3 added to it, is it not consistent with R. 9 of O. IX of the Central Code having no such clause added to it. The view taken by my learned brother that what is required by sub-s. 2 of S.20 of Act II of 1951 is only that the rule saved by that sub-section should be consistent with the provisions in the body of the Code, does not also commend itself to me. The sub-section does not lend support to such a narrow construction being upon it. The expression used in the sub-section is “so far as they are consistent with the said Code”. The reference to “the said Code” is obviously to the Code including the sections as well as the rules in Schedule I. The position that the Code includes rules also, is undisputed. Sub-s. 2 already referred to will not therefore save any rule which is inconsistent with any of the provisions in the sections or in the rules in Schedule I of the Central Code. On the ground of such inconsistency also, R. 9 of O. IX of the Travancore Code cannot be deemed to have survived after 1.4.1951, the date on which the Central Code was brought into force in this State. 5. The next aspect to be considered is whether the rules framed by this Court and brought into force with affect from 14.5.1952 by substituting the same in place of the rules contained in Sch. I of the Central Code, could be availed of in dealing with the restoration application filed in this case on 21.12.1951. A separate application for excusing the delay in filing the restoration application was also filed on 2.2.1952. Clause 3 of R. 9 of O. IX of the new set of rules brought into force with effect from 14.5.1952 enables the Court to excuse the delay in filing such restoration applications, by invoking the aid of S. 5 of the Limitation Act. The provisions contained in R. 9 are undoubtedly provisions regulating the procedure in dealing with such an application and as such these provisions can have retrospective effect and will govern all pending proceedings. The provisions contained in R. 9 are undoubtedly provisions regulating the procedure in dealing with such an application and as such these provisions can have retrospective effect and will govern all pending proceedings. If the restoration application was pending, the lower court would certainly have been justified in excusing the delay and in entertaining the application by virtue of clause 3 of R. 9 of O. IX which came into force on 14.5.1952. But the lower court’s order allowing the restoration application was passed on 1.4.1952 on which date the new set of rules had not come into force. The order dated 1.4.1952 cannot in any sense be deemed to have been passed under the new rules brought into force only on a subsequent date. Even though these rules will have retrospective effect so as to govern pending proceedings, courts will be acting without jurisdiction in anticipating such rules and in passing an order on the strength of the provisions that may be contained in such anticipated rules. My learned brother Subramonia Iyer, J. has attempted to explain away this difficulty by pointing out that no orders have been passed on the application to excuse the delay and that therefore that application as also the application to restore the suit to file, must be deemed to be pending even now, so as to attract clause 3 of the present R. 9 of O. IX. The fallacy of this argument is apparent. If the restoration application is still pending, the inevitable result must be that there is no order which could form the basis of this revision petition. But as a matter of fact, there is an order dated 1.4.1952 and my learned brother himself has stated in the concluding portion of his judgment that “In no view of the matter can it be said that the court below erred in allowing the respondent-plaintiff’s application to restore his suit to file” and “that the order of the court below cannot be challenged on the merits”. What was actually done by the lower court was to dispose of the restoration application and also the application to excuse the delay by a common order passed on 1.4.1952. The lower court has expressly referred to R. 9 of O. IX of the new rules which this Court had framed and notified to be brought into force on 14.5.1952. What was actually done by the lower court was to dispose of the restoration application and also the application to excuse the delay by a common order passed on 1.4.1952. The lower court has expressly referred to R. 9 of O. IX of the new rules which this Court had framed and notified to be brought into force on 14.5.1952. It is also clear from the lower court’s order that it was acting under these new rules and particularly under the enabling provision contained in clause 3 of R. 9 in allowing the restoration application. The necessity to invoke clause 3 of R. 9 arose for the purpose of excusing the delay in filing the restoration application. Under these circumstances it cannot be said that the application to excuse the delay is even now pending on account of the mere accident that there is no separate order on it. The effective order allowing that application is contained in the order allowing the restoration application. It will be wrong to ignore such a real state of affairs and to place undue importance on the absence of a separate order on the application to excuse the delay and thus to attempt to make out that both the applications must be deemed to be pending even now. There appears to be no special equity to justify such an approach to the question before us. Courts in India are essentially courts of law and justice, and where the provisions of law are clear courts will not be justified in going against such provisions on account of equitable considerations. When the lower court passed the order dated 1.4.1952 allowing the restoration application the new rules had not been brought into force. The said order could not and has not been made the subject matter of any appeal. In the absence of any such appeal, there is no scope for arguing that the restoration application must be deemed to have been pending even subsequent to the date of the order. The said order could not and has not been made the subject matter of any appeal. In the absence of any such appeal, there is no scope for arguing that the restoration application must be deemed to have been pending even subsequent to the date of the order. In revision this Court is only examining the question whether the order was passed in the proper exercise of the jurisdiction vested in the lower court and, as already pointed out, the lower court committed a serious error in exercising its jurisdiction in allowing the restoration application filed beyond the time prescribed by Art. 163 of the Limitation Act, under the wrong impression that the provisions of R. 9 of O. IX brought into force only on 14.5.1952 could be availed of for the purpose of excusing the delay. The provisions which could really be invoked in disposing of the restoration application were only those which were continued in R. 9 of O. IX of the Central Code which was in force from 1.4.1951 to 14.5.1952. 6. For the reasons stated above, I agree to the answers proposed by my learned brother Vithayathil, J. to the two points referred to the Full Bench and also to his order on the revision petition. P.K. Subramonia Iyer, J. This revision petition is before a Full Bench on a reference thereto made by a Division Bench which reference was occasioned by my decision in C.R.P.No. 366 of 1952 (DLR 1953 T-C 660: Kora v. Varkey) wherein it is stated: “Schedule I which contains the Orders and Rules no doubt has the force of law but it is not a part of the Code that is made applicable to a State where Rules existed. It is open for a State to which the Code is made applicable to accept or not to accept either in whole or in part the body of rules contained in the schedule to the Indian Code of Civil Procedure. It would follow that there is no scope for any conflict between the Indian Code and the Travancore Code. At the time the application was made Rules of the Travancore Code were in force which enabled the Court to extend the time for an application to set aside an ex-parte decree. It would follow that there is no scope for any conflict between the Indian Code and the Travancore Code. At the time the application was made Rules of the Travancore Code were in force which enabled the Court to extend the time for an application to set aside an ex-parte decree. By virtue of S. 20, clause (2) of Act II of 1951 those Rules continued to be in force until the new Rules framed by this High Court came into force on 14.5.1952 which also contained a provision similar to the one in the Travancore Code enabling the Court to extend the time for making an application for setting aside an ex-parte decree. The result is from the start the court did possess and throughout retained and even now has the jurisdiction to extend the time for an application under O. IX, R. 13. The contention urged by learned counsel for the plaintiff that the court had no jurisdiction to extend time has, therefore, to be repelled.” If this statement is construed as conveying the idea that except the body of the Code of Civil Procedure consisting of the sections, the remaining portion thereof, ie., the Schedules with their appendices containing the forms, was not extended and made applicable to a Part B State, it is an error unpardonable even in a novice as it is impossible to regard the schedules to an Act otherwise than as part thereof. In the words of Brett, L.J. Attorney General v. Lamlough ((1878) 3 Ex.D. 214 at 299) “the schedule is as much a part of the statute, and is as much an enactment, as any other part” though in the event of an inconsistency or contradiction between the section and the schedule the latter must give way. (Craies on Statute Law, 5th Edition, 1952, pages 208 and 209). Instead however of attributing an inconsistency between the two the more satisfactory and proper course would be to say that there has been an accidental omission of some words. An evidentially accidental omission in the Schedule to an Act may be supplied (Craies P. 495). (Craies on Statute Law, 5th Edition, 1952, pages 208 and 209). Instead however of attributing an inconsistency between the two the more satisfactory and proper course would be to say that there has been an accidental omission of some words. An evidentially accidental omission in the Schedule to an Act may be supplied (Craies P. 495). It is obvious from the extract read above that what is meant by the first sentence is merely that the Schedules appended to the Civil Procedure Code whose application was extended to Part B States by Central Act II of 1951 were not inexorably and in their final effect extended to the States where the scheme of the Code of Civil Procedure was that of the Indian Act V of 1908 containing the body of the Code in the shape of Sections and Schedules and forms and that there is an accidental omission of some such words as ‘inexorably’ or ‘in effect’ before the words ‘made applicable’. Read the extract supplying the omission and criticism would be quieted. Among the State whereto Act V of 1908 was extended by Act II of 1951, there were some where the scheme of Act V of 1908 had not been adopted and the codification of the law relating to Civil Procedure similar to that in the Indian Code of 1882 still prevailed. The competence to amend the body of the Code was with the legislature while the Schedules could be altered, amended or even annulled by other authorities upon whom power to make rules was conferred by certain sections in the body of the Act. Various modifications by way of addition, alteration and amendment had been made in the Schedules pursuant to that power so as to suit the requirements of the particular State. The provision contained in S. 24 of the General Clauses Act which is in substance enacted in clause (2), S. 20 of Central Act II of 1951, was intended to secure continuity in the administration according to the system which prevailed in the States provided that there was nothing therein inconsistent with the general and fundamental provisions in the body of the Code. The rules contained in the Schedules, whether in the original enactment of the legislature or whether introduced therein thereafter under the rulemaking power or not so introduced but yet made to regulate matters for which rules could be made, were all rules having the force of law and the aspect of original existence, subsequent introduction or the place of incorporation was not material, the object sought to be achieved being continuity in the administration, according to the existing system in each State; except to the extent of avoiding rules inconsistent with the body of the Code in a State where the scheme of the Code was similar to that of Act V of 1908 and the Schedules are either the same as, or though different from, the Schedules contained in Act V of 1908, not inconsistent with any of the provisions of the body of the Code, it would do no violence to say that the Schedule in the Act of the State was the one to apply and not the Schedule of Act V of 1908. It is true that on a doctrinaire approach it may be said that though the words are identical in both the Schedules what applies are the words in the Schedule to Act V of 1908 and not those contained in the Schedule to the Act in force in the State. The difference then becomes purely verbal and not of substance. It is in this background and on a broad view of the matter that I happened to state as I did in the order read above. 2. In the Civil Revision Petition referred to the Full Bench, however, the question of the correct interpretation and the scope of the application of clauses 1 and 2 of S.20 of Act II of 1951 does not arise because clause 3 of O. IX, R. 9 of the Code of Civil Procedure which extends S. 5 of the Limitation Act to applications for restoring suits dismissed for default was not in the Code of Civil Procedure of Travancore as enacted in the year 1100 (Act VIII of 1100) in which the scheme of Act V of 1908 was first followed. That clause was introduced into the Schedule to Act VIII of 1100 pursuant to the rule making power conferred upon the High Court in Part IX of the Act, Ss. 90 to 96. That clause was introduced into the Schedule to Act VIII of 1100 pursuant to the rule making power conferred upon the High Court in Part IX of the Act, Ss. 90 to 96. That power was exercised with the previous sanction of Government as required by S. 96, Cl. (1) and the rule was published as required by cl.(2) of that section in the Travancore Government Gazette dated 16.10.1120. (See the amendments then made (1120) 19 TLT 38 n at p. 41 n). A distinction between the Act passed by the legislature and a provision made under that Act by an authority in pursuance of the rule-making powers is intelligible and has been recognised in certain cases (see AIR 1941 Bombay 100: Emperor v. Raghunath: 42 Crl.L.J. 588). But it is difficult to understand what distinction could there be among the rules framed by the authority competent to make them from the circumstance of the place where the provision is inserted because the place of insertion cannot alter the authority, nature, force, application or effect of the rule. If a rule in Schedule I is annulled by the rule-making authority and substituted by another or a new rule is introduced by that authority, the rule substituted or added will certainly have the force and effect as if enacted in Schedule I but it will not be deemed to be one of the rules initially enacted by the legislature. Suppose the rule extending S. 5 of the Limitation Act to applications under O. IX, R. 9, was not put as a third sub-clause to that rule, could it make any difference in its operation or in the applicability of clauses 1 and 2 of S. 20 of Act II of 1951? Surely it will not and cannot because the force of a rule does not depend upon the place where it is written but upon the competency of the authority that made it. Indeed it has not been questioned in this case that the rule is ultra vires. Surely it will not and cannot because the force of a rule does not depend upon the place where it is written but upon the competency of the authority that made it. Indeed it has not been questioned in this case that the rule is ultra vires. In Ramsamahi v. Janaki Prasad (1931) Allahabad 466 FB) the effect of a rule introduced by the High Court in O. XXI of the Code of Civil Procedure, Act V of 1908, somewhat inconsistent with an earlier rule contained in the enactment made by the legislature arose and the Full Bench consisting of five Judges and presided over by Sulaiman, C.J. held that the new rule made by the High Court prevailed and the earlier one gave way because a power to make rules altering, amending or even annulling those contained in Schedule I was conferred upon the High Court and if in exercise of that power a rule was made conflicting with an existing rule the last mentioned rule must be considered to have been impliedly superceded to the extent of their inconsistency, though the proper thing might have been to amend the existing rule and avoid the inconsistency. The ratio of this decision is that the rules contained in Sch. I do not possess a statute or efficacy superior to or different from a rule made by the High Court under S. 122 but that all rules whether enacted by the legislature and embodied in Sch. I and those made by the rulemaking power subsequently, whether or not so embodied, have the same efficacy, all having the force of law with the additional circumstance that in the event of a conflict the rules made pursuant to the rulemaking power will prevail over those contained in Sch. I as originally enacted by the legislature, the “The Civil Courts Guide” and the “Civil Rules of Practice” are the names given for the publications issued by the States of Travancore and Cochin respectively incorporating the Rules made by the High Court pursuant to the rulemaking power conferred by the Sections of the Code of Civil Procedure. The names are given for facility of reference. The names are given for facility of reference. The circumstance of a different name and the fact of the issue of a separate volume will not justify the relegation of the rules contained therein to a category different from that to which other rules also made under the same power and by the same authority belong. 3. The content of the term ‘Code’ in the Code of Civil Procedure has to be regarded in considering the application of the 1st clause of the 20th Section of Act II of 1951. S. 2, cl. (1) says ‘Code’ includes Rules and cl. 18 provides that ‘Rules’ means rules and forms contained in the first schedule or made under S. 122 or S. 125. Obviously, therefore, the Code includes in the sections, the schedules as also the rules contained in the schedules as also those made under Ss. 122 and 125 but will not include the rules made under Ss. 129 and 130 of the Code of Civil Procedure regulating the procedure of the High Court in the exercise of its original civil jurisdiction (129) or with respect to any matter other than procedure under Art. 227 of the Constitution though these rules too have the force of law. This is the distinction, in fact the only distinction, between rules, namely, the rules coming within the ambit of the expression ‘Code’ and those that do not so come. These are the only two categories of rules contemplated in or recognised by the Code of Civil Procedure. The construction of causes 1 and 2 of S. 20 of Act II of 1951 may now be considered. They are as follows: “(1) If, immediately before the date on which the said Code comes into force in any Part B State, there is in force in that State any law corresponding to the said Code that law shall on that date stand repealed: Provided that the repeal shall not affect- (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or (c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. (2) Subject to the provisions contained in sub-s. (1), notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under any enactment hereby repealed shall, so far as they are consistent with the said Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the said Code, and by the authority empowered thereby in such behalf”. The first clause repeals any law in force in any Part B State corresponding to the Code of Civil Procedure. The law that is repealed would embrace the entire body of provisions relating to or regulating procedure in civil courts which would be the content of the term ‘Code’ according to the aforementioned definition contained in Act V of 1908. The proviso reserving the operation of the law need not be discussed for the purpose of the present case. In the State of Bombay v. United Motors ( AIR 1952 SC 252 at 262) His Lordship the Chief Justice delivering the judgment of the majority said: “The Act and the Rules having been brought into operation simultaneously, there is no obvious reason why the Rules framed in exercise of the power delegated by the Legislature should not be regarded as part of the “law” made by the State”. In Salmond on Jurisprudence (10th Edition, 1947, page 127) it said: “The law may be defined as the body of principle recognised and applied by the State in the administration of justice. In other words, the law consists of the rules recognised and acted on by courts of justice. We must recognize as law the sum total of the rules that are applied by the courts of justice in the exercise of any of their functions whether these are primary or essential or secondary or accidental.” S. 3, Cl. In other words, the law consists of the rules recognised and acted on by courts of justice. We must recognize as law the sum total of the rules that are applied by the courts of justice in the exercise of any of their functions whether these are primary or essential or secondary or accidental.” S. 3, Cl. 29 of the General Clauses Act, X of 1897 (Central) enacts: “‘Indian law’ shall mean any Act, Ordinance, Regulation, Rule, Order or Bye-law which before the commencement of the Constitution had the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act”. And Clause 51 provides: “‘Rule’ shall mean a rule made in exercise of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment”. To interpret the term ‘law’ as excluding rules framed or other matters done under the power conferred by the Sections is to go counter to the provisions in the body of the Code providing that they shall have the force of law. It can hardly be contended that the rule having the force of law is no law. The second clause contains a transitory provision ensuring the continued force and effect of the previous provisions relating to and regulating the details of procedure for impleading the provisions contained in the body of the Code until such provisions are made ‘under the said Code’ (Act V of 1908) and by ‘the authority empowered thereby in such behalf’. The reference obviously is to the powers conferred by the sections in the body of the Code. Ss. 67, 69,70, 75, 78 and 107 refer to particular instances of the application of rules and forms. Part X of the Code containing Ss. 121 to 131 is the part relating to rules. The reference obviously is to the powers conferred by the sections in the body of the Code. Ss. 67, 69,70, 75, 78 and 107 refer to particular instances of the application of rules and forms. Part X of the Code containing Ss. 121 to 131 is the part relating to rules. Various matters for whose continuance clause 2 of S. 20 was enacted are all matters coming within the ambit of the provisions contained in Part X. Similar provisions prevailed in Part B States before Act II of 1951, whether the Code in force was of the type of Act V of 1908 with a body of the Code and Schedules and rules, or of the type of the earlier Indian Code of 1882 containing only sections, which conferred powers upon particular authorities similar to those contained in Part X of Act V of 1908. S.128, Cl. (j) provides for the framing of forms. The only authority to frame rules or prescribe forms, issue notifications or to do anything mentioned in clause 2 is contained in and conferred by the sections contained in the body of the Code. No provision in any of the Schedules to Act V of 1908 is directed to conferring power upon any authority to do any of the things mentioned in clause 2. The second clause prescribes two qualifications for the existing provisions to continue in force. The first is that they are consistent with the said Code and the second is that they would have the same force and effect as if they had been made.......under the said Code and by the authority empowered thereby in such behalf. The expression ‘Code’ in the two places in this clause must unquestionably have the same scope. In the second place referring to the conferment of power the Code must mean the body of the Code because it is only that part of it and not the Schedules that confers the power. To the reference to the consistency with the Code for the continued operation of the previous provisions the same meaning must therefore be ascribed. The prior provision would therefore continue in force so far as they are consistent with the body of the Code. To the reference to the consistency with the Code for the continued operation of the previous provisions the same meaning must therefore be ascribed. The prior provision would therefore continue in force so far as they are consistent with the body of the Code. A construction of clause 2 as insisting upon consistency not merely with the body of the Code but with the Schedules also would lead to the necessity of interpreting differently identical expressions in the same clause without any reason. The presumption that the same meaning is implied by the use of the same expression is not of much weight. If the context justified it the same word may be interpreted differently in the same statute and even in the same section. But there must be good reason for doing so (Maxwell, page 327: Craies page 159). The same word should ordinarily receive the same meaning throughout an Act (AIR 1938 Allahabad 613). A different construction would, however, be permissible if the text so indicates (AIR 1943 Calcutta 345 (FB)). Insistence on perfect consistency with schedule would affect the paramountcy of the rule making power, the only restriction imposed on which by S. 128 being that the rules should not be inconsistent with the body of the Code. That power admits of a rule altogether annulling Schedule I to Act V of 1908 and substituting new rules inconsistent with those contained in that rule. If a rule could be made after Act II of 1951 inconsistent with any part of Schedule I it would be contradiction to say that a previously existing rule to which is ascribed the same force and effect until the framing of a new rule by clause 2 will not operate on account of any inconsistency with a rule contained in Schedule I. This would be the position even if an existing rule is inconsistent with a rule contained in Schedule I. In this case, however, it cannot be said that there is any inconsistency. O. IX, R. 9, provides by the first clause for the presentation of an application by the plaintiff for restoration of a suit dismissed for default of appearance and the second clause enacts that no order should be made under the first unless notice of the application has been served on the opposite party. O. IX, R. 9, provides by the first clause for the presentation of an application by the plaintiff for restoration of a suit dismissed for default of appearance and the second clause enacts that no order should be made under the first unless notice of the application has been served on the opposite party. The addition of a third clause rendering the provisions of S. 5 of the Limitation Act applicable to such an application will in no way be inconsistent with any existing clause. Inconsistency arises only when co-existence is not possible. That the three clauses could together exist is clear from the fact that they do now exist and it is not contended that they could not co-exist. A third clause extending the provisions of S. 5 of the Indian Limitation Act to applications to set aside an abatement was enacted by the legislature in O. XXII, R. 9. In Krishnamachariar v. Rangammal (ILR 47 Madras 824 (FB)- (AIR 1925 Mad. 14) the contention that the introduction of a clause extending the provisions of S. 5 of the Indian Limitation Act to an application under O. IX, R. 13, was ultra vires the rule making powers of the High Court was repelled. Coutstrotter, C.J. said:- “I think the strongest ground on which the rule can be supported is this. S. 5 of the Limitation Act obviously contemplates its extension by means of rules. In my opinion, it is perfectly clear the High Court had power under the combined effect of S. 5 of the Limitation Act and S. 122 of the Code of Civil Procedure to apply the provisions of S. 5 which after all are the relaxation of the rigour of the law to a matter so eminently suitable to such an extension as to set aside ex-parte decrees”. 4. The facts of the present case may now be referred to. They are stated in paragraph 2 of the order of reference thus:- “The suit was filed on 7.5.1125 and it was dismissed for default on 22.10.1951. On 21.12.1951 the plaintiff applied under O. IX, R. 9 of the Code of Civil Procedure for setting aside the order dismissing the suit and for restoring it to file. An application to excuse the delay in filing the petition as also filed on 2.2.1952. No orders seem to have been passed on that petition. On 21.12.1951 the plaintiff applied under O. IX, R. 9 of the Code of Civil Procedure for setting aside the order dismissing the suit and for restoring it to file. An application to excuse the delay in filing the petition as also filed on 2.2.1952. No orders seem to have been passed on that petition. The court below allowed the restoration petition by its order dated 1.4.1952. The revision petition is from that order”. The application of the respondent-plaintiff to restore the suit under O. IX, R.9 was out of time because the period of limitation was only 30 days from the date of the dismissal of the suit. His application to excuse delay in filing the petition presented on 2.2.1952 has not yet been disposed of though the court below allowed the petition for restoration by order dated 1.4.1952. The third clause in O. IX, R. 9, extending S.5 of the Limitation Act to such an application was introduced on 14.5.1952. The question is whether the new clause introduced will apply to the case. The general principle, however, seems to be that the alterations in procedure are retrospective unless there be some good reason against it (page 226, Maxwell on Interpretation of Statutes). The provision which extended the time for making the decrees nisi absolute from three to six months applied to suits pending when the Act came into operation. (p.227) (Maxwell on Interpretation of Statutes, 10th Edn., 1953). If a statute deals merely with the procedure in an action and does not affect the rights of the parties it will be held to apply prima facie to all actions pending as well as future (Craies on Statute Law, 5th Edition, 1952, page 371). The rule of law that no party has a vested right in procedure and that the procedure to be applied is what prevails at the time which was relied upon by the petitioner in revision to disentitle the respondent-plaintiff to the advantage of clause 3 in O.IX, R.9, of the Travancore Code of Civil Procedure recoils upon him when on the facts it is clear that the application to excuse the delay which is and cannot but be a part of the application to restore the suit dismissed for default was pending (indeed it is even now pending and should be allowed) on 14.5.1952 when clause 3 was introduced by the High Court. That clause clearly applies to the proceedings because they were pending. In this view the order challenged in this revision was clearly right though the ground that supports it is not mentioned by the Court below. If clause 3 of O. IX, R. 9 of the Travancore Civil Procedure Code is saved by clause 2 of S. 20 of Act II of 1951 the plaintiff succeeds. Even if otherwise, clause 3 contained in O. IX, R. 9 of the present Code, Act V of 1908, leads to the same consequence. In Pandarinath v. Thakore Das (ILR 53 Bom. 453) where a suit was dismissed for default on 15.1.1923 and an appeal was filed against the order of dismissal which was dismissed on 30.6.1925 on the ground that the order was not appealable and the plaintiffs therefore made an application on 18.6.1125 to restore the suit to file under O. IX, R.9 of the Code of Civil Procedure and the Subordinate Judge before whom it was made dismissed it as beyond time under Art. 164, Limitation Act, holding that under S. 5 of the Limitation Act the delay could not be excused, and an appeal was filed against that order during the pendency of which a rule extending the application of S. 5 of the Limitation Act was made by the Bombay High Court under S. 122 of the Code of Civil Procedure and published in the Bombay Government Gazette on 21.12.1927 the contention was urged that that rule was ultra vires because the rule alters the period of limitation, it was held: “The extension of the provisions of S. 5 of the Limitation Act to an application under O. IX, R. 9 is not an enactment of new period of limitation. If there was an alteration in the law of limitation different considerations would have prevailed. The change effected by the rule under S. 122 of the Code of Civil Procedure related to the procedure governing applications to restore suits dismissed for default to the file. The application was governed by Art. 164 of the Limitation Act and it continued to be governed by the same Act. The application filed beyond 30 days as required by Art. 164 was beyond time. The new rule relaxes the rigour of the law by extending the provision of S. 5 to applications under O. IX. The application was governed by Art. 164 of the Limitation Act and it continued to be governed by the same Act. The application filed beyond 30 days as required by Art. 164 was beyond time. The new rule relaxes the rigour of the law by extending the provision of S. 5 to applications under O. IX. The applicant was beyond time but the procedure of the Court was amended by enabling the Court to excuse the delay in such an application. S. 5 of the Limitation Act was not in any way amended or repealed. It is extended by the rule under S. 122 of the Code of Civil Procedure to an application under O. IX, R. 9”. This decision which I follow with respect answers an argument urged on behalf of the petitioner in revision that the application of the respondent having been filed beyond time could not have been allowed by the Court below because a valuable right accrued to him on account of the operation of the law of limitation. The existence of clause 3 in O. XXII, R. 9 in Act V of 1908 as enacted by the legislature providing that “The provisions of S. 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-r. (2)” shows that extending S. 5 of the Limitation Act which enables such extension by or under any enactment is not a matter of limitation but one of procedure. 5. The two questions asked in the order of reference are : “(1) Whether it was the Orders and Rules of the Indian Code of Civil Procedure or those of the Travancore Code of Civil Procedure that were in force in the Travancore area of this State between 1.4.1951 and 14.5.1952. (2) Whether, in a case in which a suit filed in the Travancore area before 1.4.1951 is dismissed for default after 1.4.1951 and an application for restoration of the suit is made after 1.4.1951 but before 14.5.1952, the applicant can avail himself of the provision contained in S. 5 of the Limitation Act”. (2) Whether, in a case in which a suit filed in the Travancore area before 1.4.1951 is dismissed for default after 1.4.1951 and an application for restoration of the suit is made after 1.4.1951 but before 14.5.1952, the applicant can avail himself of the provision contained in S. 5 of the Limitation Act”. I would answer both the questions alike, and say that the procedure in force before 1.4.1951 in the shape of rules, whether contained in the Schedule or not so contained, in so far as they are not inconsistent with any provision contained in the body of the Code, Act V of 1908, can be taken as having been re-enacted and in force within the meaning of clause 2 of 20 of Act II of 1951 and that in any event rules, made by High Court of Travancore under the rulemaking power conferred upon it by the pre-existing Code of Civil Procedure corresponding to Act V of 1908 including clause 3 of O. IX, R. 9, are rules whose continued application is ensured by the said clause 2. The application of the provisions of S. 5 of the Limitation Act is attracted whether the rules that apply to those contained in the Travancore Code of Civil Procedure or whether they be the rules framed by the Travancore-Cochin High Court which came into force on 14.5.1952, either by the continuance of the operation of the prior rule or the retroactive operation of the later rule as both have the consequence of avoiding the interregnum when the provisions of S. 5 of the Limitation Act cannot be applied. The order of the court below was not and cannot be challenged on the merits. 6. In no view of the matter can it be said that the Court below erred in allowing the respondent-plaintiff’s application to restore his suit to file and, therefore, the petition for its revision should be dismissed with costs. ORDER OF THE COURT The Civil Revision Petition is allowed with costs and the two questions referred to the Full Bench are answered in terms of the majority view. Allowed.