SADIQ ALI Vs. MANU NARANG

JUDGEMENT

(1.) The petitioners are obstructing the execution of a decree obtained by the respondent as long ago as in March 1973 against one Balsara who was the original defendant in the suit. The suit was Suit No. 3032 of 1962 and had been filed by the predecessor-in-title of the respondent against the said Balsara for possession of certain property. A Chamber Summons for the removal of the obstruction of the petitioners has been taken out in the year 1981 and that is Chamber Summons No. 74 of 1981. Apart from the merits of the obstruction, the petitioners told the Court below, namely, the City Civil Court, that the proceedings in obstruction are to be conducted in accordance with Rule 98 of Order 21 of the Code of Civil Procedure as substituted by the Bombay High Court by its Notification dated 30th September, 1966 and not in accordance with the procedure prescribed by the aforesaid provision as amended by the Central Parliament by the Amending Act 104 of 1976. The Court below was invited to frame an issue as per this contention and it has been so done by the Court below. It is in the following terms :

(2.) Before proceeding to consider the contentions raised on behalf of the petitioners, it would be profitable to review the relevant provisions of law in this regard. Code of Civil Procedure, 1908, is Act No. 5 of 1908, and as is well-known, it consists of two parts. There is that part of the Code which consists of section from section 1 to section 153. Then there are Schedules annexed to this body of the Code. What is important for our purpose is the First Schedule which contains the rules of procedure. This Schedule itself is divided into several parts called orders which in turn contain the rules prescribing the procedures which are necessarily consistent with the sections contained in the main part of the Code. That part of the Code which contains the sections has been consistently referred to in legal books as well as in judgments of the courts as the body of the Code and the rules contained in the First Schedule have been referred to as the rules. For the sake of uniformity. I will continue to refer to the same in these terms.

(3.) The body of the Code containing the sections could naturally be amended only by a legislature having legislative competence to do so. However, the rules contained in the First Schedule were allowed to be amended by the High Courts, if the High Courts so desired. This power to amend and the procedure for amending are provided in Part X of the body of the Code which deals with the rules which necessarily mean rules in the First Schedule. Section 121 of the Code says that the rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of Part X. Section 122 of the Code empowers the High Courts to make rules regulating their own procedure and the procedure of the Civil Courts subject to the superintendence of the High Courts. In exercise of this power, the High Court may by such rules annul, alter or add to all or any of the rules in the First Schedule. Though, therefore, the first part of section 122 mentions that the High Court may make rules regulating their own procedure and the procedure of the Courts subject to their superintendence the latter part of section 122 specifically empowered the High Courts to amend the rules contained in the First Schedule of the Code. The procedure for amending the rules has been prescribed in sections 123 to 125 of the Code. It is already noted that section 121 provides that the rules in the First Schedule were to have the effect as if they were enacted in the body of this Code, until annulled or altered in accordance with the provisions of Part X of the Code. Rules made after following the procedure prescribed in sections 123 to 126 were to be published in the Official Gazette and upon such publication or with effect from such other date as may be specified, they were to have the same force and effect as if they had been contained in the First Schedule. In other words, the power to make rules under section 122 was co-extensive with the legislative power of a competent Legislature and the rules made in exercise of power contained in section 122 of the Code were to have the same effect as the rules which were enacted by the Parliament. There was, however, one major restriction on the same, namely, the rules which were thus framed "shall be not inconsistent with the provisions in the body of this Code..........".