Wanchoo, C. J. - (1.) THIS is an application by Ram Niwas for the restoration of an appeal which was dismissed by this Court on the 1st November, 1950. The reason why the appeal was dismissed was that the applicant had not paid the cost of preparing the paper book as required under Chapt. VII Rule 28 of the Rules of this Court. Consequently the appeal was dismissed for want of prosecution. Thereupon the applicant filed the present application for restoration on the 23rd July, 1951, seven months and twenty two days after the dismissal. Learned counsel for the opposite party has urged that the application is time barred under Art. 168 of the Limitation Act. The Article reads as follows : - "for the re-admission of an appeal dismissed for want of prosecution. Thirty days. The date of the dismissal" Learned counsel for the applicant however, relies on the case of Ramhari Sahu and others vs. Modan Mohan Mitter (I. L. R. 23 Calcutta P. 339 ). In that case the appeal had been dismissed for default on failure of the applicant to deposit the necessary cost of the preparation of the paper book in accordance with the Rules of the Court. There was then an application for readmission of the appeal. It was held that as the application was not under sec. 558 of the Civil Procedure Code which now corresponds to Order 41 Rule 19, Art. 168 of the Limitation Act did not apply and the application was not barred by the law of Limitation.
(2.) THIS case certainly supports the submission of the learned counsel for the applicant. The present application is also not under Order 41 Rule 19 but may be taken up under sec. 151 of the Code of Civil Procedure. But with all due respect to the learned Judges who decided that case we find ourselves unable to understand that decision. We would point out that there is no reason whatsoever in support of the decision that was arrived at. We are, therefore, unable to follow it. The words of Art. 168 are quite clear and it applies to all cases where there is an application for re-admission of an appeal which has been dismissed for want of prosecution. In the present case the appeal was dismissed because certain charges for preparing the paper book were not paid. Such a dismissal could only be called a dismissal for want of prosecution. We see no difference in principle between such a dismissal and a dismissal for want of deposit of process fees. Both, in our opinion, will be dismissals for want of prosecution and therefore, even though the application for ration may not lie under Order 41 Rule 19 but under sec. 151 of the Code of Civil Procedure, Art. 168 will equally apply whether the application is under one provision or the other. We are supported in our view by a Full Bench decision of the Rangoon High Court in (Shakoor) Abdul Ganny vs. Mrs, I. M. Russell (A. I. R. 1930 Page 228 ). There also the appeal was dismissed for default of payment of process fees prescribed under the rules of the Rangoon High Court. Dismissal was not covered by rules II, 17 or 18 of Order 41 and the application for restoration of the appeal could not be made under Order 41 Rule 19. The question then arose whether Art. 168 of the Limitation Act applied to the application for restoration which was made in that case. It was held that Art. 168 of the Limitation Act applied and the application had to be within the period prescribed by that Article. The case of Ramhari Sahu already mentioned was considered, in this case and Page, C. J. at page 232 observed as follows with respect to that case - "in Ramhari Sahu vs. Madan Mohan Mitter the ratio decidendi is not apparent, and the learned Judges did not state the grounds upon which their judgment was based. In my opinion the law was not correctly stated by the learned Judges who decided Ramhari Sahu's case". Another learned Judge namely Cunliffe, J. remarked as follows about Ramhari Sahu's case at Page 235 - "i have never understood Ramhari Sahu's case as I do not know on what principle it is decided". There is no reasoning in support of the decision in Ramhari Sahu's case. We agree that the Rangoon case should be followed in preference to the Calcutta case on which the learned counsel for the applicant relies. Our attention was also drawn to Wadia, Gandhy & Go. vs. Purshotam Sivji (I. L. R. XXXII Bombay page 1 ). That was a case with regard to Art. 178 of the Limitation Act and not with regard to Art. 168 with which we are dealing. In that case it was held that there was no period of limitation provided for an application by an attorney for payment of his costs under rule 859 of the High Court Rules and Art. 178 of the Limitation Act applied only to applications under the Civil Procedure Code. The case is, therefore, no authority for interpretation of Art. 168. But at the end of the judgment there seems to be an approval of Ramhari Sahus case mentioned above. It may, however, be pointed that the words of Art. 178 of the Act of 1877 and the corresponding Art. 181 of the present Act are substantially different from the words of Art. 168 with which we are dealing. The words with which the Bombay High Court was concerned in Wadia, Gandhy & Co. vs. Purshotam Sivji were "for an application for which no period of limitation is provided elsewhere in this schedule or by the Code of Civil Procedure sec. 230". On those words Bombay High Court could have come to the decision at which it did without approving the case of Ramhari Sahu. The words under Art. 168 are "dismissed for want of prosecution" and any appeal which is dismissed for want of prosecution in case of noncompliance of certain provisions in the Civil Procedure Code or in the rules of this Court will be covered by Art, 168. We are therefore, of opinion that the application in this case was time barred when it was presented. Learned counsel for the applicant then urges that he might be given the benefit of sec. 5 of the Limitation Act. In the first place we are of opinion that sec. 5 has no application in the present case, but even if it has, we do not think it is a fit case for condoning delay. We may point out that the appellant was given opportunity after opportunity to pay the expenses* of the preparation of the paper book. He did not avail of these opportunities. When the appeal was dismissed for want of prosecution he did not come within one month of the date of dismissal. Even after the period of limitation had expired he had been quiet for more than six months. We are therefore not prepared to grant any indulgence to the applicant. The application is hereby dismissed with costs to the opposite party. .;