K.K. Narendran, J.
1. A Trichur merchant filed a suit for damages for non-delivery of goods sent to him by rail. The Union of India represented by the General Manager, Southern Railway and the consignor were made defendants. As a matter of fact, the goods were booked with the contractor, Sitamau Out Agency, Mandasor. Hence the 1st defendant-Railway filed an interim application under Order VIIIA, Rule 1 and Section 151 of the Civil Procedure Code to 'implead' the contractor, Sitamau Out Agency, The learned Sub Judge it seems, opened a bare Act of the Civil Procedure Code published by the Law Publishers, Allahabad and passed the following order :
'Notice to Out Agency refused. It is seen by the latest amendment of C. P. C, Order 8 (a) is repealed. Hence petition closed.'
The 1st defendant challenges the above order in this Civil Revision Petition.
2. Sections 122 and 128 of the Code of Civil Procedure read :
'122. Power of Certain High Courts to make rules. -- High Courts not being the Court of a Judicial Commissioner 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.'
'128. Matters for which rules may provide. -- (1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.
(2) In particular, and without prejudice to the generality of the powers conferred by Sub-section (1), such rules may provide for all or any of the following matters, namely:--
(a) to (d).....
(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;
(f) to (j) .....'
Section 157 of the Code of Civil Procedure reads:
'157. Continuance of orders under repealed enactments. -- Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.'
Order VIIIA, Rule 1, Civil Procedure Code, reads:
'VIIIA (1). Third party notice. --Where a defendant claims to be entitled to contribution from or indemnity against any person not already a party to the suit (hereinafter called a third party) he may, by leave of the Court, issue a notice (hereinafter called a third party notice) to that effect, sealed with the seal of the Court. The notice shall state the nature and grounds of the claim. Such notice shall be filed into Court with a copy of the plaint and shall be served on the third party according to the rules relating to the service of summons.'
Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 reads :
'97. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.'
Order VIIIA for 'Third Party Procedure' was inserted in the Code of Civil Procedure by a Kerala Amendment issuedas per Notification published in the Kerala Gazette dated 9-6-1959. Under Section 22 of the Code, High Courts have the power to make rules annulling, altering or adding to all or any of the rules in the First Schedule to the Code. As per Sec. 128 of the Code, the power of the High Court in this regard extends to the procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not. Order VIIIA was inserted in the Code by the High Court of Kerala by virtue of the powers vested with it under Sections 122 and 128 of the Code. As per Section 157, an amendment like the one inserting Order VIIIA in the Code will continue to have the same force and effect as any other provisions of the Code as long as the same is not inconsistent with the provisions of the Code. Section 97 of Amendment Act 104 of 1976 also saves an amendment like the one in question made by the High Court of Kerala inserting Order VIIIA in the Code. Order VIIIA is not in any way inconsistent with any of the provisions of the Code as amended by Act 104 of 1976. Hence, it goes without saying that the Kerala Amendment inserting Order VIIIA in the Code for 'Third Party Procedure' is unaffected by the Code of Civil Procedure (Amendment) Act, 104 of 1976 which came into force on 1-2-1977. As per Order VIIIA, Rule 1, the Court below was bound to issue notice to the third party mentioned in the interim application filed by the 1st defendant-petitioner in the facts and circumstances revealed by the pleadings in this case. It is true that the court was not bound to implead a party under Order VIIIA. But it was not on that ground that the interim application was dismissed by the court below as is clear from the order impugned. This is a clear case where the court below ought to have allowed the petitioner's request and issued notice to the third party. The dismissal of the petitioner's application has resulted in a refusal of exercise of jurisdiction by the court below Hence the order impugned is set aside. I. A. No. 725 of 1977 filed in O. S. No. 339 of 1975 will stand allowed to the extent indicated above.
3. The Civil Revision Petition is disposed of as above. There will be no order as to costs.
4. I do feel that the learned Sub Judge ought not to have disposed of the interim application in the casual way inwhich he has done. A copy of this order is to be communicated to the Sub Judge wherever he is.