GULAM MOHAMMAD Vs. 1ST ADDL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition has been filed against the order of I Additional District Judge. Varanasi, dated 19-9-1980 affirming the order of the II Civil Judge. Varanasi by which he allowed applications 51-C dated 27-2-1979 and 57-C moved by the plaintiffs for bringing legal representatives of deceased plaintiff No. 1 and some of the defendants on record in a proceeding for preparation of final decree.

(2.) The sole controversy in the present writ petition centres round the question as to whether the provisions of Order 22, Rule 12. C.P.C. as amended by this court, apply to the case in view of the provisions of Section 97 of the C.F.C. (Amendment) Act (Act No. 104 of 1976). The other question which arises for determination is as to whether, in case, the Allahabad amendment to Order 22. Rule 12. C.P.C. survives after U. P. Act No. 104 of 1976, the same will have application to the present case.

(3.) As far as the first argument raised by the learned counsel for the petitioners is concerned, in my opinion the same has no force in view of the decision of the Full Bench of this Court reported in 1979 All LJ 401 (Smt. Chandra Rani v. Vikram Singh). The learned counsel for the petitioners conceded that in similar situation the Full Bench held that the provisions of Order 15. Rule 5. C.P.C. as added by State of Uttar Pradesh were not repugnant to the Civil Procedure Code as amended by Act No. 104 of 1976. If one sees the history of the proviso added to Order 22. Rule 12, C.P.C there is no escape from the conclusion that the proviso so added by the High Court to the aforesaid Order 22, Rule 12, C.P.C. was for the purposes of bringing it in conformity with the decisions by practically all the other High Courts in the country. The proviso is, therefore, in the nature of a clarification and thus by no stretch of imagination can be said to be in conflict with the main provisions of Order 22, Rule 12. C.P.C. There is thus no force in the contention raised by the learned counsel for the petitioners in so far as this argument is concerned.