ORDER
K.A. Swami, Ag. C.J
1. This Appeal is preferred against the order dated 1.6.1992 passed by the learned single Judge in Writ Petition No.2038/86 (LA). The Writ Appeal was filed on 23rd January 1993. Therefore, the office has raised an objection that the Appeal is barred by time, in the light of the provisions contained in Article 117 of the Limitation Act, 1963, and the appellant has not filed any application for condonation of delay.
2. The appellant has stated before the Registry that the appeal preferred under Section 4 of the High Court Act being the continuation of the remedy sought in the Writ Petition under Article 226 of the Constitution, it is not governed by the provisions contained in Article 117 of the Limitation Act, because the proceeding under Article 226 of the Constitution, is not a civil proceeding. Hence, the office has posted the matter before the Court for consideration.
3. Sri M.R.Rajagopal, learned Counsel appearing for the appellant contends that the petition filed under Article 226 of the Constitution is not a civil proceeding, but it is a special proceeding under Article 226 of the Constitution; therefore Article 117 of the Limitation Act, is not attracted, as it is attracted only to Civil proceedings. Reliance is placed by the learned Counsel for the appellant, in support of his submission, on a Decision of the High Court of Gauhati, in STATE OF ASSAM v. NARESHCHANDRA DAS, AIR 1983 Gauhati 24. It is also further submitted by the learned Counsel for the appellant that if Article 117 of the Limitation Act is held to be applicable to an appeal preferred under Section 4 of the Karnataka High Court Act, it would amount to placing an embargo on the exercise of the jurisdiction under Article 226 of the Constitution; and such an embargo can only be created either by amending the Constitution or by amending the High Court Act or by way of the Rules framed under Articles 226 and 227 of the Constitution.
4. It appears to us that it is not possible to accept any one of these contentions. The contention that a petition filed under Article 226 of the Constitution, is not a civil proceeding, is opposed to a decision of the Supreme Court in AIR 1965 S.C.1813, SAL Narayana Row and Anr. v. Ishwarlal Bhagwandas and Anr.. In the said Decision, the question that arose for consideration was, as to whether a proceeding under Article 226 of the Constitution, can be held to be a civil proceeding. After considering all the aspects of the matter, the Supreme Court ruled thus:
'16. On a careful review of the provisions of the Constitution, we are of the opinion that there is no ground for restricting the expression 'civil proceeding' only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutes. The preliminary objection raised by counsel for the assessee must therefore fail.'
Following the aforesaid Decision, a Division Bench of this Court, in GOUNDAPPA APPAYYA PATIL v. SHIVARI BHIMAPPA PATTAR, : ILR1991KAR3288 held thus:
'14. It may also be pointed out that Article 226 of the Constitution specifically provides that notwithstanding anything in Article 132 every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue any person or authority including in appropriate cases, any Government, within those territories, Directions, Orders or Writs including Writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warrantor and Certiorari or any of them, for the enforcement of any of the Rights conferred by Part 111 and for any other purpose. The words any other purpose have been interpreted for enforcement of any legal right. Therefore, W.P.No.2332/1965 was a proceeding in which enforcement of a legal right concerning the immovable property was in question. However, it is contended that the words any 'suit' or 'proceeding' occurring in Section 52 of the Transfer of Property Act must be read as contemplating either a suit or a proceeding instituted in an ordinary Civil Court. In other words, it is contended that the word 'proceeding' occurring in Section 52 of the Transfer of Property Act, only relates to original proceeding. It is necessary to point out that a proceeding under Articles 226 and 227 of the Constitution apart from being a civil or criminal or some other proceeding depending upon the nature of the right enforced in that proceeding is also an original proceeding. No doubt it is not an ordinary original jurisdiction but it is an extraordinary original jurisdiction. It is an independent proceeding and not a continuation of the proceeding before the Authorities below.......'
In addition to this, in the Writ Proceedings Rules framed in exercise of the jurisdiction under Articles 226 and 227 of the Constitution, the provisions of the Civil Procedure Code are made applicable to a proceeding under Articles 226 and 227 of the Constitution. Rule 39 of the Writ Proceedings Rules, reads thus:
'39. Application of the High Court of Karnataka Rules, etc. -The provisions of the High Court of Karnataka Rules, 1959, the rules made by by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958 and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 and/or Article 227 and Writ appeals In respect of matters for which no specific provision is made in these rules.'
Therefore, it is not possible to accept the contention.
5. When once it is held that a proceeding under Article 226 of the Constitution, is a civil proceeding, the provisions of the Indian Limitation Act, are attracted. The relevant Article in this regard is Article 117 of the Limitation Act, which reads thus:
'Art No.
Description of Appeal
Period of limitation to run
Time from which period begins
117
From a decree or order of any High Court to the same Court.
Thirty days
The date of the decree or order
The Appeal that is preferred under Section 4 of the High Court Act, is against the order passed by a learned Single Judge of this Court; therefore all the requirements of Article 117 of the Limitation Act, are attracted, as it provides that the appeal has to be preferred within 30 days from the date of the decree or order of any High Court to the same Court.
5. As far as the decision of the High Court of Gauhati is concerned, it has not taken into consideration the Decision of the Supreme Court in S.A.L.Narayana Row's case(supra). Therefore, we find it difficult to agree with the said Decision, of the Gauhati High Court.
6. It is next contended by Sri Rajagopal, learned Counsel for the appellant, that a Division Bench of this Court in A.V.KOWDI & CO. v. R.L.LAKSHMIDEVAMMA, : ILR1990KAR4355 has held that a limitation prescribed under Section 20 of the Contempt of Courts Act, is not applicable to the Contempt of Court proceedings under Article 215 of the Constitution, because the power that is exercised by this Court, is the power under the Constitution and hence only the Constitution can restrict that power. It may be pointed out that the said Decision cannot be made applicable to the case on hand because here the question is not one of exercise of the original jurisdiction under Article 226, but it is one of exercise of appellate jurisdiction under Section 4 of the High Court of Karnataka Act; therefore, the said Decision cannot be applied to the question under consideration. We therefore hold that the appeals preferred under Section 4 of the High Court of Karnataka Act, as to limitation, are governed by the provisions contained in Article 117 of the Limitation Act. Therefore, the appeal has to be preferred within 30 days from the date of the order or decree of the High Court to the same Court. Consequently, the appellant is granted two weeks to file the application for condonation of delay.