DEVENDRA KUMAR Vs. JAIDAYAL

JUDGEMENT

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

(2.) IT appears that in execution of a money decree for manse profits the petitioner judgment -debtor submitted an application on 7 -12 -1977 to the executing Court under sub -rule (2) of rule 11 of Order 20 of the Civil Procedure Code for facility of instalments for payment of the decretal amount. The non applicant -decree -holder not only objected to the prayer made in the aforesaid application on merits, but also urged that sub -rule (2) of rule 11 of Order 20 as amended by the Madhya Pradesh High Court was no longer in force because of the provisions of the Civil Procedure Code (Amendment) Act, 1976 and it was contended that in view of sub -rule (2) of rule 11 of Order 20 as it stands in the Civil Procedure Code after amendment the facility of instalments would only be given with the consent of the decree -holder and not as contemplated by the Madhya Pradesh High Court amendment by issuing notice to the decree holder. The executing Court upheld the objection raised by the decree holder and the application of the judgment debtor - petitioner was dismissed and it is against this order of the executing Court that the revision petition was filed before a learned Single Judge of this Court. The learned Single Judge after hearing the revision petition felt that an important question arose as to whether the Amendment Act of 1976 amending the Civil Procedure Code repealed sub -rule (2) of Rule 11 of Order 20 as modified by the Madhya Pradesh High Court. Consequently the question was framed and it has been placed before us for answer.

(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by section 97 (1) of the Amendment Act only that much of the provision which was inserted by the High Court would be repealed which is inconsistent with the provisions of the 'principal Act' as amended by this Act and it was contended that this 'principal Act' occurring in the last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 17(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 S.2 sub -clause (l) as 'Code includes Rules' which is an inclusive definition and It is only to distinguish the term 'Code' which includes 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 net inconsistent with the section's 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 'Craise on Statute Law' that: