Back
IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
Sadiq Ali another... Petitioners.
Versus
Manu Narang... Respondent.
Writ Petition No. 3328 of 1984, decided on 13-9-1984.
Advocates appeared :
C.K. Jaisinghani, for petitioners.
D.S. Parikh with Mrs. Sheela Balsari, for respondent.
CIVIL PROCEDURE CODE - RULE 98 OF ORDER 21 - AMENDMENT BY BOMBAY HIGH COURT IN 1966 - REPEAL BY CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 1976 - EFFECT - AMENDMENTS MADE BY HIGH COURTS IN FIRST SCHEDULE OF CODE - REPEAL TO THE EXTENT OF INCONSISTENCY WITH AMENDED PROVISIONS - POWER OF HIGH COURTS TO AMEND RULES IN FIRST SCHEDULE REMAINS INTACT - AMENDMENTS MADE BY BOMBAY HIGH COURT AFTER 1976 - EFFECT - RIGHT OF APPEAL - AVAILABILITY.
Fact of the Case:
The petitioners were obstructing the execution of a decree obtained by the respondent in 1973. A Chamber Summons for the removal of the obstruction was taken out in 1981. The petitioners contended that the proceedings in obstruction are to be conducted in accordance with Rule 98 of Order 21 of the Code of Civil Procedure as substituted by the Bombay High Court by its Notification dated 30th September, 1966 and not in accordance with the procedure prescribed by the aforesaid provision as amended by the Central Parliament by the Amending Act 104 of 1976.
Finding of the Court:
The Court held that Rule 98 of Order 21 as enacted by the Amending Act of 1976 governed the proceedings and not Rule 98 of Order 21 of the Code as amended by Bombay High Court in the year 1966. The Court further held that the amendments made by the High Courts in the First Schedule of the Code, which were inconsistent with the amended provisions of the First Schedule to the Code, were to stand repealed to the extent of their inconsistency with the latter provision.
Issues: 1. Whether Rule 98 of Order 21 as substituted by the Bombay High Court by Notification dated 30-9-1966 is applicable to the present Chamber Summons or whether Rule 98 of the First Schedule of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act, 1976, is applicable?
Ratio Decidendi: 1. The Code of Civil Procedure, 1908, consists of two parts: the body of the Code containing the sections and the First Schedule containing the rules of procedure. 2. The High Courts have the power to amend the rules contained in the First Schedule of the Code under section 122 of the Code. 3. The Code of Civil Procedure (Amendment) Act, 1976 amended both the body of the Code and the First Schedule. 4. Section 97 of the Amending Act repeals any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of the Amending Act, except to the extent that such amendment or provision is consistent with the provisions of the principal Act as amended by the Amending Act. 5. The phrase "the principal Act" in section 97 of the Amending Act refers to the entire Code of Civil Procedure, including both the body of the Code and the First Schedule. 6. Therefore, any amendments made by the High Courts in the First Schedule of the Code, which were inconsistent with the amended provisions of the First Schedule to the Code, were repealed to the extent of their inconsistency with the latter provision.
Final Decision: The petition was dismissed with costs.
"Is Rule-98 of Order 21 as substituted by the Bombay High Court by Notification dated 30-9-1966 is applicable to the present Chamber Summons or whether Rule 98 of the First Schedule of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act, 1976, is applicable ?"
Later the Court was invited to decide that issue as a preliminary issue, which again the Court did and answered that issue against the petitioner. In other words, it held that Order 21, Rule 98 as enacted by the Amending Act of 1976 governed the proceedings and not Rule 98 of Order 21 of the Code as amended by Bombay High Court in the year 1966. This order dated 16th April, 1984 is the subject matter of challenge in this petition under Article 227 of the Constitution.
2. Before proceeding to consider the contentions raised on behalf of the petitioners, it would be profitable to review the relevant provisions of law in this regard. Code of Civil Procedure, 1908, is Act No. 5 of 1908, and as is well-known, it consists of two parts. There is that part of the Code which consists of section from section 1 to section 153. Then there are Schedules annexed to this body of the Code. What is important for our purpose is the First Schedule which contains the rules of procedure. This Schedule itself is divided into several parts called orders which in turn contain the rules prescribing the procedures which are necessarily consistent with the sections contained in the main part of the Code. That part of the Code which contains the sections has been consistently referred to in legal books as well as in judgments of the courts as the body of the Code and the rules contained in the First Schedule have been referred to as the rules. For the sake of uniformity. I will continue to refer to the same in these terms.
3. The body of the Code containing the sections could naturally be amended only by a legislature having legislative competence to do so. However, the rules contained in the First Schedule were allowed to be amended by the High Courts, if the High Courts so desired. This power to amend and the procedure for amending are provided in Part X of the body of the Code which deals with the rules which necessarily mean rules in the First Schedule. Section 121 of the Code says that 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 Part X. Section 122 of the Code empowers the High Courts to make rules regulating their own procedure and the procedure of the Civil Courts subject to the superintendence of the High Courts. In exercise of this power, the High Court may by such rules annul, alter or add to all or any of the rules in the First Schedule. Though, therefore, the first part of section 122 mentions that the High Court may make ru
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
