JUDGMENT Mukerji, J.
1. This is an appeal against a judgment of a learned single Judge of this Court. A preliminary point has been taken that no appeal is maintainable inasmuch as the learned Judge who pronounced the judgment did not grant leave to file an appeal as required by Section 10, Letters Patent, as recently amended. It has further been urged that the rule framed by the High Court as regards grant of leave to file a Letters Patent appeal is partially ultra vires of the High Court.
2. It appears that the judgment was delivered by Ashworth, J., on 12th March 1929. No application to obtain a certificate to the effect that the case was a "fit one for appeal" was made before the learned Judge. An application was later on made before the learned Chief Justice of the Court in pursuance of Rule 6-C, para. 2, Chap. 3 of the Rules of the Court, and on his granting such a certificate the appeal was filed.
3. The contention on behalf of the respondents is that the rules framed by the High Court were made only to facilitate the filing of an appeal, but those rules could not in any way override the very Letters Patent subject to which the rules had to be made. The amended Section 10, Letters Patent of this High Court runs as follows:
...Provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court...made on or after 1st February 1929 in the exercise of appellate jurisdiction In respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal...
4. It will be noted that ordinarily no right of appeal is given. The right of appeal that is given is subject to the condition that the Judge who passed the judgment declares that the case is a fit one for appeal.
5. No rule could be discovered by us, and none has been pointed out to us, which authorises the High Court to frame the rules, as they are to be found in Chap. 3, Rule 6-A to Rule 6-D. The question of the rule-making power of the High Court so as to carry out the provisions of the Letters Patent was raised so far back as in the case of Naubat Ram v. Harnam Das [1886] 9 All. 115. There the question raised was whether the rule framed by the High Court, namely, a Letters Patent appeal must be filed within 90 days of the passing of the judgment was or was not ultra vires of the Court, that is to say whether the High Court could limit by time the right of a Letters Patent appeal. The learned Judges who decided the case could not find any authority under which the rule had been framed and expressed the opinion that "the ultimate origin of the rule could not; be traced." The learned Judges thereupon assumed that it had a legal origin and was not ultra vires of the Court. Our own view is that the rules have been framed only because the provisions of the Letters Patent had to be carried out and unless any rules were framed it would be impossible to carry out the provisions of the Letters Patent granted by His Majesty. There can be no doubt, therefore, that the High Court has the power to do all things that may be necessary to do in order to carry out the provisions of the Letters Patent. That is the basis of the power of the High Court to make rules. That being the case, the powers of the High Court in framing rules cannot, evidently, override the rules provided for in the Letters Patent itself. The Letters Patent declares that an appeal shall be maintainable only on a certificate being granted by the Judge who decided the appeal that it was a fit one for appeal. It would not be within the province of any other Judge of the Court to take it upon himself to gay that the case was one in which an appeal should or might be filed.
6. We have looked into the provisions of law which authorised the High Court to frame rules and even there we find no authority for so framing rules as to override the provisions of the Letters Patent. The only authority which can override and amend the rules laid down in the Letters Patent is the Indian Legislature: see Section 35, Letters Patent. Section 122, Civil P.C., authorises High Courts from time to time, after previous publication, to make rules regulating their own procedure and the procedure of civil Courts subject to their superintendence. But this power is subject to this provision that such rules shall not be inconsistent with the provision in the body of this Code (Civil Procedure Code: see Section 128, Civil P.C.) and subject to the further provision that these rules shall not be inconsistent with the Letters Patent establishing the High Court: see Section 129 Civil P.C.
7. It seems to us to be clear that the High Court in framing the rules Chap. 3, Rule 6-C of the Rules of the Court overlooked the fact that the Letters Patent required the certificate from the Judge hearing the appeal himself. The High Court being only a subordinate legislative body in the matter of framing of rules, it has no power to so frame rules as to override either the provisions of the Civil Procedure Code or the provisions of the Letters Patent. The rule under consideration, therefore, is ultra vires of the High Court.
8. In the result we allow the objection raised by the learned counsel for the respondents and dismiss the appeal. In the circumstances of the case the parties shall pay their own costs.