B.L.Yadav - (1.) -This petition under Article 226 of the Constitution of India is directed against the order dated 23-11-82 allowing the substitution application in proceedings for preparation of final decree, as one Baleshwar Ram died. An objection was made by the petitioner that no substitution was made within time, hence substitution could not be allowed and the matter abated. But the learned Munsif has taken the view that as out of two defendants, one defendant died and the substitution was allowed, hence there was no question of abatement. Against that order, revision filed by the petitioner failed.
(2.) SRI M. P. Sinha, learned counsel appearing on behalf of the petitioner urged that Rule 12 Order 22 of the Code of Civil Procedure, 1908, (for short the Code), was to the effect that nothing under Rules 3, 4 and 8 shall apply to proceedings in execution of decree or order. The Allahabad High Court has made an amendment adding the following provision : " Allahabad-Add in the end or to " proceedings in the original courts taken after passing of the preliminary decree where the final decree also requires to be passed having regard to nature of the suit. " But this amendment was inconsistent with the main provisions of Rule 12 Order 22. In view of section 97 (1) of the Code of Civil Procedure (Amendment) Act, 1976, (Act No. 104 of 1976), (for short the Amendment Act), all local amendments made to any of the provisions of the Code either by State Legislature or by the High Court, which was inconsistent with the Code, as amended by the Amending Act, stood repealed. It was urged that as the Allahabad High Court amendment was inconsistent with the main provision of Order 22 Rule 12 of the Code, hence the substitution application could not be held maintainable in respect of preparation of preliminary or final decree and, consequently, that application could not have been allowed, and that the courts below have committed manifest error in allowing the substitution application. Having heard the learned counsel for the petitioner, I am of the view that Section 97 (1) of the Amendment Act would be applicable only when some amendment has been incorporated in the Code by the State of U. P. or by the Allahabad High Court, and the same is inconsistent with the main provisions made by the Amendment Act under the Code. The word ' inconsistent ' connotes ' want of consistency ', ' lack of accordance ' or harmony (with something or between things), ' incompatibility ', ' Contrarity ', ' opposition '. In others words, want of agreement or self contradictory. The provisions of Rule 12 of Order 22, are quoted below ;- " 12 Application of Order to proceedings :-Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. " Immediately after that Rule, the Allahabad High Court amendment has been added as indicated above. It means that the framers of the Code were already conscious that Rule 3 of Order 22, providing for procedure in case of death of one or several plaintiff or the sole plaintiff, or Rule 4 providing procedure in case of one or several defendants or the sole defendant, or Rule 8 providing when the plaintiff is insolvent bars to suit, would not be applicable to proceedings of any execution of a decree. Immediately thereafter Allahabad High Court amendment has to be added indicating that said Rules 3, 4 and 8 shall not apply to proceedings in original court taken after passing of the preliminary decree or where the final decree also requires to be passed. In case the provisions of Rule 12 in the Code provides that substitution proceedings on the death of defendant or the plaintiff would not apply to execution proceedings in case the Allahabad High Court made provisions by amendment that the said substitution proceedings would not apply to the proceedings in the original court taken after passing of the preliminary decree, once the final decree also requires to be passed I am accordingly of the view that the said amendment made by the Allahabad High Court has just added to the sphere of operation of Rule 12, and as such there is nothing inconsistent or contrary to provisions already made. In other words, the Allahabad High Court has made a supplementary or complementary provision and has not said anything contrary to what has been said earlier in Rule 12. . Recently in Ganpat Giri v. Had Additional District Judge, Ballia, 1986 AWC 181 SC , it was held that under Rule 72 of Order 21 of the Code the provision was that no holder of a decree in execution of which property is sold, shall, without express premission of the Court, bid for, or purchase the property. . The aforesaid provision indicate that a decree holder would not be permitted to purchase the property in execution of a decree except with the permission of the Court whereas by the Allahabad amendment, the clause ' with such permission ' read with the words ' property sold ', were to be deleted meaning thereby that by the Allahabad amendment ' with the express permission of the Court ' was deleted The original provision indicate that except with the permission of the Court no decree holder can purchase the property in execution proceedings, whereas the Allahabad amendment added ' inconsistent provision '. Hence it was held by the Supreme Court that the effect of Section 97 (1) of the Amendment Act was that all the local amendments made to any of the provisions of the Code, either by the State Legislature or by the High Court, which was inconsistent with the Code, as amended by the Amending Act, stood repealed. In the present case the amendment sought by the Allahabad High Court was not inconsistent, rather it applified or extended the scope of operation of the earlier provision of Rule 12 Order 22 and the amendment brought to Rule 12 was supplementary and complementary and the same could not be said to be inconsistent by any stretch of imagination, and I am of the considered opinion that the amendment of Allahabad High Court Rule 12 Order 22 is not inconsistent which could be deemed to have been repealed by the provisions of Section 97 (1) of the Amending Act.
(3.) . Learned counsel for the petitioner next urged that the preparation of final decree was not the execution proceeding. I am afraid this argument has also no legs to stand. The word ' decree ' has been defined under section 2 (2) of the Code and it means formal expression of an adjudication, which so far as regards the Court expressing it, conclusive determines the rights of the parties with regard to all or any of the matters in controversy in suit and may be either preliminary or final. In this view of the matter, the decree may also be preliminary or. final, or partly preliminary and partly final. Under English Law, however, decree means an order of a court pronounced on the hearing of a suit. A decree may be a ' decree Nisi ' or provisional, or may be an absolute or final decree. A decree Nisi is made absolute or final, or on proper steps being taken as the nature of the suit permits. Rules 12 to 16 and 18 of Order 20 of our Code and Rules 2 to 5, 7 and 8 of Order 34 of the Code deals with preliminary decree, but this list is not exhaustive of preliminary decrees. A preliminary decree is a step in a pending litigation, the suit still continues even after the preliminary decree. . The final decree has got some semblance of execution proceedings. If execution proceedings are genus, the preparation of final decree is species. The litigation between the parties is deemed pending till the preparation of final decree. Very often than not the field occupied by the preparation of preliminary and final decree overlaps. Amendment of Allahabad High Court added after Rule 12 Order 22 of the Code is not inconsistent with the main provision of Rule 12. I am of the view that Amendment is supplementary and complementary in nature.;