KAKI PAPAYAMMA Vs. MARGADARSI CHIT FUNDS RAJAHMUNDRY

JUDGEMENT

(1.) THESE three revision petitions have been posted before us pursuant to an order of reference made by one of us (K. Ramaswamy J.) on September 21, 1984, to resolve the conflict between D. Venugopala Reddy v. Smt. Ch. Laxmi kantham, (1983) II An. W.R. 138 - and D. Subba Rao v. M. Lakshmi Kanthamma (AO No. 922/81 and batch dated October 4, 1983 - -, 1983(2) APLJ Short Notes 48). The circumstances leading to make such a reference are as under: The respondent obtained against one V. Ramakrishna a mortgage decree under Order 34 in O.S. No. 64/76 on the file of the trial Court. E.P. No. 23/78 was filed to bring the hypotheca to sale to realise the decree debt. Before E.P. schedule properties were brought to sale, the petitioners in all the revisions purchased different items of the E.P. schedule under registered sale deeds and they were put in possession of the same. The properties were brought to sale on March 15, 1983. The petitioners filed applications under Order 21 Rule 90 C.P.C. to set aside the sale of their respective properties. The lower Court relying upon the proviso to Order 21 Rule 90 called upon the petitioners to furnish security of the amounts realised by sale of the properties purchased by each one of them respectively. The petitioners contended that in view of the amendment made to Order 21 Rule 90 by the Parliament by the C.P.C. (Amendment) Act, 1976, Act No. 104 of 1976 -for short 'the Amendment Act'), there is no need to furnish security. They alternatively contended that as the properties were subjected to the hypotheca there was no need to furnish security. The lower Court, however, directed them to furnish security and on their failure to comply with, their applications were rejected by order dated August 21, 1983, and the sales were confirmed. Challenging the rejection, the aforesaid C.R.Ps. have been filed. As stated, when those came up before one of us (K. Ramaswamy J.) on September 21, 1984, the petitioners placed reliance on the decision in Venugopala Reddy's Case (supra) and contended that the proviso stood repealed. The view of the lower Court is thereby vitiated by an error of jurisdiction. The respondents relying on Subba Rao's Case (supra) contended that the proviso is still in vague as a valid piece of legislation and, therefore, the lower Court's order is perfectly legal and is within its jurisdiction to reject their applications. Since both the decisions are directly in conflict with one another, the matter has been referred to the Division Bench to resolve the conflict. Thus, it has come up before us.

(2.) SRI Veerabhadraiah, the learned counsel for the petitioners, contended that the proviso is inconsistent with the amended provisions of Order 21 Rule 90. By operation of Section 97 of the Amendment Act, the proviso stood repealed. Therefore, there is no power for the lower Court to call upon the petitioners to furnish security. He further contended that by virtue of the amendment, a right is created in the petitioners to have their grievance adjudicated without any insistence to furnish security. The proviso puts fetter on the exercise of the right conferred on the petitioners by Statute. Thereby, the proviso is directly in conflict with the amended provisions of Order 21 Rule 90. Therefore, the proviso stands repealed. He placed strong reliance on Venugopala Reddy's Case. We requested Sri J.V. Suryanarayana Rao, a member of this Bar, to assist the Court as amicus curiae, which he graciously accepted and assisted this Court for which this Court expresses its thanks to him. He contends that in Subba Rao's Case, the learned Judge proceeded on an erroneous premise that Parliament did not intend to annul or alter the First Schedule of the Code including the amendments added to the Schedule by the High Court in exercise of the power Under Section 122 of the Code; the Amendment Act, only with the main part of the Code, namely, the Sections, the Parliament thereby did not intend to repeal the proviso and, therefore, there is no inconsistency. As a fact, the Parliament was cognizant of several amendments made by various High Courts and in fact accepted some of the amendments by introducing suitable amendment to Order 21 Rule 90. There by the proviso introduced by Madras High Court and adopted by this Court was not accepted. The proviso is inconsistent with the amended provisions of Order 21, Rule 90. Therefore, the learned Judge in Subba Rao's Case did not lay down the law correctly. He read out amendments made by each High Court. Sri Lakshmana Sarma, the learned counsel for the respondents, while accepting that the proviso is inconsistent with the amended provisions of Order 21 Rule 90, states that the proviso is still a valid law. He adumbrated this contention by placing reliance on Section 122 - Power of the Court to make Rules - Sec. 123 - Continuance of the Rules made by the Rule Committee. He placed strong reliance on Section 128 of the Code, and thereby, he contends that the proviso continues to be a valid piece of legislation. As stated, he placed strong reliance on Subba Rao's Case. No other decisions have been cited by either counsel. In view of these rival contentions, the question that arises for consideration is whether the proviso inserted in 1936 by the Madras High Court and adopted by this Court is still a valid piece of legislation, continuing to occupy the field. Preceding the Amendment Act, Order 21 Rule 90 as applicable to State of Andhra Pradesh is as follows;

(3.) THOUGH the counsel on either side did not advert to the Constitutional provisions, we can broach the problem on the anvil of the Constitutional scheme adumbrated in Part XI -Relations between the Union and the States. Article 245(1) empowers Parliament, subject to the provisions of the Constitution, to make laws for the whole or any part of the territory of India. Article 246(1) gives exclusive power to Parliament to make laws in respect of any of the matters enumerated in the Union List of the Seventh Schedule. According to Article 246(2), Parliament, notwithstanding anything in clause (3) of Article 246, and the legislature of any State, subject to clause (1) of Article 246, have concurrent power to make laws in respect of any of the matters enumerated in the Concurrent List of the Seventh Schedule in case of inconsistency between laws made by Parliament and laws made by the Legislatures of States, Article 254 provides the indicia as to which law would have its sway. Article 254 postulates thus.