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High Court Of Madhya Pradesh
G. L. Oza and S. R. Vyas, JJ.
DEVENDRA KUMAR - Appellant
Versus
JAIDAYAL - Respondents
Civil Revn. 13 Of 1978
Decided On : 02/19/1980
CIVIL PROCEDURE CODE - AMENDMENT ACT, 1976 - SECTION 97(1) - REPEAL OF AMENDMENTS MADE BY HIGH COURTS - INTERPRETATION - 'PRINCIPAL ACT' - MEANING - SUB-RULE (2) OF RULE 11 OF ORDER 20, CIVIL PROCEDURE CODE, 1908 - AMENDMENT BY MADHYA PRADESH HIGH COURT - VALIDITY - 'BODY OF THE CODE' - MEANING.
Fact of the Case:
The petitioner, a judgment-debtor, filed an application under Sub-rule (2) of Rule 11 of Order 20 of the Civil Procedure Code, 1908, seeking facility of installments for payment of the decretal amount. The non-applicant decree-holder objected, arguing that the amendment made by the Madhya Pradesh High Court in Sub-rule (2) of Rule 11 was repealed by the Civil Procedure Code (Amendment) Act, 1976. The executing Court upheld the objection and dismissed the application. The petitioner filed a revision petition before a learned single Judge, who referred the question of whether the amendment made by the High Court stood repealed to a larger Bench.
Finding of the Court:
The Court held that the amendment made by the Madhya Pradesh High Court in Sub-rule (2) of Rule 11 of Order 20 of the Civil Procedure Code, 1908, did not stand repealed by the Civil Procedure Code (Amendment) Act, 1976. The Court interpreted Section 97(1) of the Amendment Act, which provides for the repeal of amendments made by High Courts, and held that the phrase 'principal Act' occurring in the last sentence of the provision refers to the sections of the Code and not to the schedule. The Court also interpreted the phrase 'body of the Code' occurring in Section 128 of the Code and held that it refers to the sections part of the Code and not the schedule.
Issues: 1. Whether the amendment made by the Madhya Pradesh High Court in Sub-rule (2) of Rule 11 of Order 20 of the Civil Procedure Code, 1908, stood repealed by the Civil Procedure Code (Amendment) Act, 1976? 2. The meaning of the phrase 'principal Act' occurring in Section 97(1) of the Amendment Act. 3. The meaning of the phrase 'body of the Code' occurring in Section 128 of the Code.
Ratio Decidendi: 1. The Court interpreted Section 97(1) of the Amendment Act and held that the phrase 'principal Act' occurring in the last sentence of the provision refers to the sections of the Code and not to the schedule. Therefore, the amendment made by the High Court in Sub-rule (2) of Rule 11 of Order 20, which was part of the schedule, was not repealed by the Amendment Act. 2. The Court interpreted the phrase 'body of the Code' occurring in Section 128 of the Code and held that it refers to the sections part of the Code and not the schedule. Therefore, the amendment made by the High Court in Sub-rule (2) of Rule 11 of Order 20, which was part of the schedule, was not inconsistent with the 'body of the Code' and was valid.
Final Decision: The Court answered the question referred to it by holding that the amendment made by the Madhya Pradesh High Court in Sub-rule (2) of Rule 11 of Order 20 of the Civil Procedure Code, 1908, did not stand repealed by the Civil Procedure Code (Amendment) Act, 1976.
( 1 ) THE question referred to us in this revision petition is :--
"whether in view of the provisions of Section 97 of the Civil Procedure code (Amendment) Act, 1976 the amendment, made by this Court in sub-rule (2) of Rule 11 of Order 20, Civil Procedure Code, 1906 stands repealed?"
It appears that in execution of a money decree for mesne profits the petitioner-judgment-debtor submitted an application on 7-12-1977 to the executing Court under Sub-rule (2) of Rule 11 of Order 20 of the Civil Procedure Code for facility of instalments for payment of the decretal amount. The non-applicant-decreeholder not only objected to the prayer made in the aforesaid application on merits, but also urged that Sub-rule (2) of Rule 11 of Order 20 as amended by the Madhya Pradesh High Court was no longer in force because of the provisions of the Civil Procedure Code (Amendment) Act, 1976 and it was contended that in view of Sub-rule (2) of Rule 11 of Order 20 as it stands in the civil Procedure Code after amendment the facility of instalments could only be given with the consent of the decree-holder and not as contemplated by the madhya Pradesh High Court amendment by issuing notice to the decree-holder. The executing Court upheld the objection raised by the decree-holder and the application of the judgment-debtor-petitioner was dismissed and it is against this order of the executing Court that the revision petition was filed before a learned single Judge of this Court. The learned single Judge after hearing the revision petition felt that an important question arose as to whether the amendment Act of 1976 amending the Civil Procedure Code repealed Sub-rule (2) of Rule 11 of Order 20 as modified by the Madhya Pradesh High Court. Consequently the question was framed and it has been placed before us for answer.
( 2 ) SUB-RULE (2) of Rule 11 of Order 20, Civil Procedure Code remains the same even after the amendment. It reads : "after the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit. " It was even before the Amendment Act of 1976 in the same terms. But the Madhya Pradesh High Court exercising powers under section 122 of the Civil procedure Code amended this rule and substituted the words 'with the consent of the decree-holder' occurring in this rule by 'after notice to the decree-holder'. This Sub-rule (2) of Rule 11 of Order 20 as amended by the Madhya Pradesh high Court before the Amendment Act of 1976 reads :--"after the passing of any such decree the Court may, on the application of the judgment-debtor and after notice to the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit. " After this the 1976 amendment Act was brought in force. ( 3 ) LEARNED counsel appearing for the petitioner contended that by Section 97 (1) of the Amendment Act only that much of the provision which was inserted by the High Court would be repealed which is inconsistent with the provisions of the 'principal Act' as amended by this Act and it was contended that this 'principal Act, occurring in the last sentence of Section 97 (1) refer to the Act i. e. sections and not to the Schedule part of it as according to the learned counsel even after the amendment Section 122 has been retained and the High court has been conferred with the powers to frame rules. Restrictions of these powers have been provided for in Section 128 and the only restriction is that such rule shall not be inconsistent with the provisions
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