GOPAL Vs. DISTRICT JUDGE BALLIA

JUDGEMENT

(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by State Legislature or by the High Court, which was inconsistent with the Code, as amended by the Amending Act, stood repealed.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 ;-

(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.