JUDGMENT

(Prayer: Civil Miscellaneous Petition filed under Section 151 of C.P.C., seeking to the 2nd petitioner / 2nd respondent to sell 2.00 acres of land in Survey No.41, Sub-divided as Survey No.41/1B (part of item 9 in Schedule A-1) which is subject matter of the suit in O.S.No.13 of 2013 on the file of the Additional District Judge, Tiruvallur.)

R. Subramanian, J.

1. When these petitions were listed before us, the learned counsel for the appellant Mr.K.S.V.Prasad sought to give up respondents 4 to 8 in the appeal on the ground that he had not sought for partition of 'E' Schedule properties, which have been purchased by the said respondents. This was objected to by the learned counsel for the contesting respondents, Mr.M.S.Subramanian, pointing out that the plaintiff / appellant had, in the plaint, alleged that the value of the 'E' Schedule property must be taken into account while dividing the properties. When we pointed out that giving up the respondents 4 to 8 cannot be without prejudice to the contentions of the appellants, the learned counsel would submit except the 4th respondent in the appeal, all others have remained exparte before the Trial Court and therefore, notice to them, in the appeal, may be dispensed with under the proviso to Order 41, Rule 14(1) of C.P.C., inserted by way of Madras Amendment with effect from 17.11.1976.

2. It was pointed out at the Bar that the Madras Amendmennt, which was introduced on 17.11.1976 runs counter to the provisions of the Code as amended by Act, 104 of 1976. Therefore, by virtue of Section 97(1) of the Amending Act namely, Act 104 of 1976, the said proviso introduced by way of the Madras Amendment, which is inconsistent to Sub-Rule 4, Rule 14 of Order 41 would stand repealed. Therefore, the power of the Court to dispense with notice to persons, who remained exparte before the Trial Court in the main appeal itself is doubtful.

3. Since we also entertained a doubt regarding the inconsistency or otherwise of the provisions as well as the date from which, they were introduced and considering the importance of the issue, we had issued notices to all the major Bar Associations namely, Madras High Court Advocates' Association, the Madras Bar Association, the Women Lawyers' Association and the Law Association, requiring them to assist the Court in resolving the issue. We had also requested Mr.S.Parthasarathy, learned Senior Counsel to assist us in resolving the issue.

4. Upon service of notice as directed by us, representatives of various Law Associations had made their submissions on 25.09.2023. Upon hearing the learned counsel, who had appeared for the parties, respective Bar Associations and the Amicus, we find that the following points emerge for determination:-

i) Whether the proviso to Sub-Rule 1, Rule 14 of Order 41 of C.P.C., is inconsistent with Sub-Rule 4, Rule 14 of Order 41 inserted by way of Act, 104 of 1976.

ii) If our answer to Point No.1 is in the affirmative, what will be the effect of Section 97(1) of Act 104 of 1976 on the Proviso.

5. Before elaborating further on this issue, it will be of use to extract the relevant provisions of Order 41, Rule 14 before its amendment by Act, 104 of 197, which reads as follows:-

"R.14. Publication and service of notice of day for hearing appeal.

(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Appellate Court may itself cause notice to be served.- Instead of sending the notice to the Court from whose decree