Sankarasubban, J.

S.A.No.362 of 1990 has come before us on a reference by one of us, Bhaskaran,J., by order dated 21st December 2001. Suit, O.S.No.233 of 1980 was filed for redemption of mortgage. Two questions of law raised in the Second Appeal, which are as follows:

1. Can a composite decree for redemption of mortgage, drawn in form 7D under Order 34 Rule 4 of the Code of Civil Procedure as provided by notification dated 10.12.1973 issued by the High Court of Kerala, be drawn up after the Code of Civil Procedure Amendment Act 104 of 1976?

2. Is not the decree now granted irregular and improper, inasmuch as, it is not in conformity with Order 34 of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure Amendment Act 104 of 1976?

The suit out of which, the present Second Appeal is filed is O.S.No.233 of 1980. The suit was filed for redemption of mortgage evidenced by document dated 11.12.1951.

2. The suit was dismissed by the trial court on 28.5.1984. Against that decree, an appeal was preferred by the plaintiff. The Appellate Court granted a decree to redeem the mortgage on 14.12.1989. According to the appellant, on 15.1.1974, under Section 122 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), the High Court of Kerala recommended changes in Order 34 of the CPC. This was accepted by the Government and the Government issued notification. The main feature of this amendment is that in a suit for redemption, only one decree was contemplated as against preliminary and final decrees. In 1976, the CPC was amended. The suit was filed on 10.1.1980. As already stated, the suit was dismissed. According to the appellants, by the coming into force of the amended CPC 1976 on 1.2.1977, as per Section 97(1), Order 34 as stood in Kerala was repealed. On 14.12.1989, the lower Appellate Court granted a composite decree instead of passing a preliminary decree. On 20.11.1990, the High Court of Kerala again substituted Order 34 to its original position that was available in 1973. Thus, by notification dated 20.11.1990, need for passing a preliminary decree in a suit for redemption, was dispensed with. According to the appellants, a decision of this Court reported in State Bank of Travancore v. Balakrishnan – 1990(1) K.L.T.391 held that after the 1977 amendment, Order 34 of the CPC enacted in the State of Kerala was repealed and hence, two decrees are to be passed instead of a composite decree. Since the lower Appellate Court passed only a composite decree, learned counsel for the appellant submitted that that procedure is wrong. It appears that this is one of the contentions in the Second Appeal and this contention was taken up and the matter was referred to the Division Bench.

3. When the matter came before the Division Bench, learned counsel for the appellant submitted that O.P.No.14175 of 1998 had been filed by the petitioner on behalf of another client challenging the amendment by Ext.P2. Hence, that petition was also called and heard along with the Second Appeal. In O.P.No.14175 of 1998, the High Court of Kerala is the third respondent. Notice was taken by the Registrar and a statement was filed on behalf of the High Court. With regard to the amendment made to Order 34 of the CPC, the prayer in the Original Petition is to issue a writ of certiorari or other appropriate writ or order quashing Ext.P1 notification dated 20.11.1990 by which Order 34 was amended. Another prayer is to declare that Order 34 of the CPC as amended by the Amendment Act 104 of 1976 will govern all suits for foreclosure, sale or redemption of mortgage in the State of Kerala and to declare that Order 34 of the CPC introduced by Ext.P1 notification is repugnant to Order 34 of the CPC as amended in 1976 and therefore void and inoperative.

4. It appears that the petitioner in the Original Petition was a defendant in a suit for recovery of amount on the basis of a mortgage, viz., O.S.No.97 of 1990, which was filed on 15.10.1990.