DEVENDRA KUMAR Vs. JAIDAYAL

JUDGEMENT

(1.) The question referred to us in this revision petition is :--

(2.) Sub-rule (2) of Rule 11 of Order 20, Civil Procedure Code remains the same even after the amendment. It reads : "After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment- debtor, or the taking of security from him, or otherwise, as it thinks fit." It was even before the Amendment Act of 1976 in the same terms. But the Madhya Pradesh High Court exercising powers under Section 122 of the Civil procedure Code amended this rule and substituted the words 'with the consent of the decree-holder' occurring in this rule by 'after notice to the decree-holder'. This Sub- rule (2) of Rule 11 of Order 20 as amended by the Madhya Pradesh High Court before the Amendment Act of 1976 reads :-- "After the passing of any such decree the Court may, on the application of the judgment-debtor and after notice to the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit." After this the 1976 Amendment Act was brought in force.

(3.) Learned counsel appearing for the petitioner contended that by Section 97 (1) of the Amendment Act only that much of the provision which was inserted by the High Court would be repealed which is inconsistent with the provisions of the 'principal Act' as amended by this Act and it was contended that this 'principal Act, occurring in the last sentence of Section 97 (1) refer to the Act i.e. sections and not to the Schedule part of it as according to the learned counsel even after the amendment Section 122 has been retained and the High Court has been conferred with the powers to frame rules. Restrictions of these powers have been provided for in Section 128 and the only restriction is that such rule shall not be inconsistent with the provisions of the 'body' of this Code and it was contended that the phrase 'body of this Code' is referable to the sections part only as the Schedule shall not be covered. It was further contended that the word 'Code' is defined in Section 2 Sub-clause (1) as 'Code includes Rules' which is an inclusive definition and it is only to distinguish the term 'Code' which in-cludes rules, the phrase employed in Section 128 is the 'body of the Code', It was therefore contended that as this rule modified by the Madhya Pradesh High Court was not inconsistent with the provisions of sections of the Civil Procedure Code, it could not be said to be invalid. Similarly even after the amendment as it is not inconsistent with the sections part of the Code of Civil Procedure, it could not be said that by operation of Section 97 (1) of the Amendment Act Sub-rule (2) of Rule 11 as amended by this Court stood repealed. Learned counsel in support of his contention placed reliance on the observations made in 'Craies on Statute Law' that :