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Munnilal Kailash Chandra and ors. Vs. Akabai D/O. Malharrao and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 66 of 1959
Judge
Reported inAIR1960MP130
ActsCode of Civil Procedure (CPC) , 1908 - Sections 122 - Order 21, Rule 58; States Reorganisation Act, 1956 - Sections 2, 54, 119 and 120
AppellantMunnilal Kailash Chandra and ors.
RespondentAkabai D/O. Malharrao and anr.
Appellant AdvocateSwami Saran, Adv.
Respondent AdvocateB.L. Agarwal, Adv.
DispositionRevision allowed
Cases Referred and Shrikisan Shiv Pratap v. Dhulchand Kasturchand
Excerpt:
- - 1. this revision raises an interesting point......by the high court at nagpur in exercise of the powers conferred under section 122 of the code of civil procedure (hereinafter called 'the code') and which were in force in the former state of madhya pradesh as it existed before the reorganization of states on 1-11-1956, are enforceable in that territory of the new madhya pradesh which upto 31-10-1950 was called the part b state of madhya bharat.2. the material facts are these. in execution of a decree against kailash chandm (judgment-debtor), akabai (decree-holder) got his house attached. munnilal and others filed an objection petition under order 21 rule 58 of the code of civil procedure on 13-3-1959. without deciding that petition, the executing court fixed 1-7-1959, for the sale of the house. the objectors then filed an application.....
Judgment:
ORDER

Shiv Dayal, J.

1. This revision raises an interesting point. The question is whether the Rules made by the High Court at Nagpur in exercise of the powers conferred under Section 122 of the Code of Civil Procedure (hereinafter called 'The Code') and which were in force in the former State of Madhya Pradesh as it existed before the Reorganization of States on 1-11-1956, are enforceable in that territory of the new Madhya Pradesh which upto 31-10-1950 was called the Part B State of Madhya Bharat.

2. The material facts are these. In execution of a decree against Kailash Chandm (judgment-debtor), Akabai (decree-holder) got his house attached. Munnilal and others filed an objection petition under Order 21 Rule 58 of the Code of Civil Procedure on 13-3-1959. Without deciding that petition, the executing Court fixed 1-7-1959, for the sale of the house. The objectors then filed an application on May 8, 1959 praying that the sale be stayed until the disposal of their objection petition. The executing court rejected this application, by applying Rule 58(2) of Order 21 of the Code of Civil Procedure as amended by the Nagpur High Court. Aggrieved by the same the objectors have filed this revision petition.

3. The contention of Shri Swami Saran, learned counsel for the petitioners is that the decree was passed by and is being executed in a Court atGwalior, and Gwalior was a part of the former Madhya Bharat State so that unless and until the Rule made by the Nagpur High Court is adapted in the new State of Madhya Pradesh, it can have no application to this execution.

4. In order to appreciate this point, the scheme of the States Reorganisation Act 1956 (hereinafter called 'The Act') has to be examined.

5. Under Section 2 of the Act the following definitions are relevant:

(a) 'appointed day' means the 1st day of November, 1930.

(d) 'corresponding new State' means in relation to the existing State of Bombay, Madhya Pradesh, Mysore, Punjab or Rajasthan, the new State with the same name, and in relation to the existing Slate of Travancore-Cochin, the new State of Kerala.

(e) 'corresponding State means, in relation to the new State of Bombay, Madhya Pradesh, Mysore, Punjab of Rajasthan, the existing State with the same name, and in relation to the new State of Kerala, the existing State of Travncore-Cochin.

(g) 'Existing State' means a State specified in the First Schedule to the Constitution, at the commencement of this Act;

(h) 'law' includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having the force of law in the whole or in any part of the territory of India;

6. Section 9 (of part II) provides for the formation of a new State of Madhya Pradesh comprising of the territories enumerated therein including the territories of the 'corresponding State' of Madhya Pradesh (except certain districts) and the territories of the 'existing State' of Madhya Bharat except Sunel.

7. Part V deals with 'High Courts.'

8. Part XI is about 'Legal and Miscellaneous Provisions.' In this part Section 119 reads thus:

'The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.'

9. This section provides for a fiction and makes it very clear by the deeming provision that for the purpose of the application of the laws it must be forgotten that there has been reorganization of States'. Whatever laws were in force immediately before November 1, 1956 continue to operate in the respective areas of the existing States. In other words, all the laws which were in force in the territories of Madhya Bharat continue to operate in those territories notwithstanding the alteration of the territories or the formation of the new State and notwithstanding that the then existing State of Madhya Bharat does not today exist on the map of India.

10. Section 120 provides a machinery for making laws uniform if the State Government or the legislature so desired. Section 120:

'For the purpose of facilitating the application of any law in relation to any of the States formed or territory altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject tothe adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.'

11. It cannot be doubted that rules made by a High Court under Section 122 of the Civil P. C. are covered by the definition of the word 'law' in Section 2 of the Act. Section 122 of the Civil Procedure Code runs thus:

'High Courts for Part A States and Part B States may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.'

It is obvious enough that any of the rules in the first schedule or the Code could be annulled, altered or added to by such rules as a High Court made under that power. Rules made in exercise of that power became a part and parcel of the first schedule of the Civil Procedure Code so tar as that State was concerned. In that view of the matter, the rules made by the High Court of the 'corresponding State' of Madhya Pradesh (that is, the former M. P. which existed prior to November 1, 1956) continued to be operative in those territories of the new Madhya Pradesh State even after November 1, 1956. But since they have not yet been adapted under Section 120 of the States Reorganisation Act for the other territories of the 'corresponding new State (that is, the present State of Madhya Pradesh) they arc not operative and cannot regulate the procedure of the Civil Courts there. The territories of the former State of Madhya Bharat are, therefore, outside the operation of those rules.

12. Shri Babulal Agarwal learned counsel) for the decree-holder relies on Section 54 of the Act and argues that the rules made by the High Court of the former Madhya Pradesh under the Code of Civil Procedure apply to the whole of Madhya Pradesh as from the appointed day (that is, November 1, 1956). Section 54 runs thus:

'Subject to the provisions of this Part, the law In force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, with the necessary modifications, apply in relation to the High Court for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules and orders with respect to practice and procedure as are, immediately before the appointed day, exercisable by the High Court for the corresponding State:. . . . '

13. In my opinion Section 54 docs not apply to the rules made under the Civil Procedure Code regulating the procedure of the Civil Courts. This section speaks of the law.... .with respect to practice and procedure in the High Court .......' Thelaw, rules and orders referred to in the section are these which deal with the practice and procedure in the High Court' and not those which deal with practice and procedure 'in all courts.' The scheme of the Act itself supports that view because Section 54 falls in Part V of the Act, which relates to 'High Courts.'

14. A Rule made by a High Court in exercise of the Dowers vested in it under Section 122 of! the Code of Civil Procedure is a piece of delegated or subordinate legislation. It is to be read as engrafted on the first schedule. It regulates procedure in all civil courts. It will be governed by Section 119 and not by Section 54 of the Act.

15. It must, therefore, be held that the Code of Civil Procedure as was in force in the territories of the former Madhya Bharat State on 31-10-1956continues to operate in those areas of the new State of Madhya Pradesh. Therefore Order 21 Rule 58 as it stands in the first schedule of the Code of Civil Procedure applies to the present execution and the amendment made by the former Madhya Pradesh High Court does not apply to this case.

16. The next contention of Shri Swami Saran is that the executing court was bound to stay the whole case. It was imperative under Order 21, Rule 58(2). He relies on decisions reported in M. Varadaiah Chetti v. Narasimhalu, Chetty, AIR 1932 Mad 41; Sasthi Charan Biswas v. Gopal Chandra Saha, AIR 1937 Cal 390; Commr. of Income Tax v. Poona Electric Supply Co. Ltd., AIR 1947 Bom 263 and those reported in Shrichand v. Santosh Kumar, MBLJ 1953 HCR 493 and Shrikisan Shiv Pratap v. Dhulchand Kasturchand, MBLJ 1954 HCR 842. I must guard myself from expressing any opinion on that 'oint because the executing Court has not yet considered the application for stay in the above perspective. Before I part with this case, I must observe that an enquiry under Order 21 R, 58 of the Code is of a summary nature and should be expedited. In the instant case the objection had been instituted on March 13, 1959. If it had been disposed on by 30-6-1959 which means 3 1/2 months, all these questions would not have arisen. Let me hope that this will now be done with expedition .

17. For reasons stated above, this revision is allowed, the order passed by the executing Court on June 26, 1959 is set aside and it is directed that the application dated May 8, 1959 filed by the objector shall be considered in the light of the above observations and until the disposal of the last mentioned application (May 8, 1959) the sale shall remain stayed. There shall be no orders as to costs of this revision.


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