DEVENDRA KUMAR Vs. JAIDAYAL
LAWS(MPH)-1980-2-11
HIGH COURT OF MADHYA PRADESH
Decided on February 19,1980

DEVENDRA KUMAR Appellant
VERSUS
JAIDAYAL Respondents


Referred Judgements :-

BIDIE V. GENERAL ACCIDENT,FIRE AND LIFE ASSURANCE CORPORATION LTD. [REFERRED TO]
DEPUTY CHIEF CONTROLLER OF IMPORTS AND EXPORTS NEW DELHI VS. K T KOSALRAM [REFERRED TO]
STATE OF UTTAR PRADESH VS. PT CHANDRA BHUSHAN MISRA [REFERRED TO]
CHANDRA BHUSHAN MISRA VS. JAYATRI DEVI [REFERRED TO]



Cited Judgements :-

SADIQ ALI VS. MANU NARANG [LAWS(BOM)-1984-9-18] [REFERRED TO]
DESABANDHU BEHERA VS. HARIMOHAN BEHERA [LAWS(ORI)-1991-4-8] [REFERRED TO]
N RAJENDRAN VS. SHRIRAM CHITS TAMIL NADU PVT LTD [LAWS(MAD)-2011-8-5] [REFERRED TO]


JUDGEMENT

G.L.Oza, J. - (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Act, 1976 the amendment, made by this Court in Sub-rule (2) of Rule 11 of Order 20, Civil Procedure Code, 1906 stands repealed?"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on merits, but also urged that Sub-rule (2) of Rule 11 of Order 20 as amended by the Madhya Pradesh High Court was no longer in force because of the provisions of the Civil Procedure Code (Amendment) Act, 1976 and it was contended that in view of Sub-rule (2) of Rule 11 of Order 20 as it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felt that an important question arose as to whether the Amendment Act of 1976 amending the Civil Procedure Code repealed Sub-rule (2) of Rule 11 of Order 20 as modified by the Madhya Pradesh High Court.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 of the 'body' of this Code and it was contended that the phrase 'body of this Code' is referable to the sections part only as the Schedule shall not be covered. It was further contended that the word 'Code' is defined in Section 2 Sub-clause (1) as 'Code includes Rules' which is an inclusive definition and it is only to distinguish the term 'Code' which in-cludes rules, the phrase employed in Section 128 is the 'body of the Code', It was therefore contended that as this rule modified by the Madhya Pradesh High Court was not inconsistent with the provisions of sections of the Civil Procedure Code, it could not be said to be invalid. Similarly even after the amendment as it is not inconsistent with the sections part of the Code of Civil Procedure, it could not be said that by operation of Section 97 (1) of the Amendment Act Sub-rule (2) of Rule 11 as amended by this Court stood repealed. Learned counsel in support of his contention placed reliance on the observations made in 'Craies on Statute Law' that :
"It is difficult to frame exhaustive definition of words consequently, 33 the Court said in R. v. Hall (h) "the meaning of ordinary words, when used in Acts of Parliament, is to be found, not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object which is intended to be attained. Similarly, Brett, M. R., said in The Dunelm (i)" 3 "My view of an Act of Parliament which is made applicable to a large trade or business is that it should be construed, if possible, not according to the strictest and nicest interpretation at language, but according to a reasonable and business interpretation of it with regard to the trade or business with which it to dealing."
and it was contended that the meaning which has to ho given to the words will depend upon the scheme of the Act rather than the strict literary meaning of the words. Learned counsel also placed reliance on the decision reported in Dy. Chief Controller of Imports and Exports, New Delhi v. K. T. Kosalram (AIR 1971 SC 1283).


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