GURMIT SINGH Vs. SUSHIL SETHI

JUDGEMENT

(1.) A substantial question of law has arisen for determination in this revision as to whether sub-rule (3) of rule 2 of Order XXI of the Code of Civil Procedure (hereinafter referred to as the Code), would be read in Punjab in spite of its having been omitted by Section 36 of the Punjab Relief of Indebtedness Act, 1934 (hereinafter referred to as the Act), after the Code of Civil Procedure Amendment Act No. 104 of 1976 (hereinafter called the Amendment Act), by virtue of Section 97 thereof under which any provision made by the State Legislature, which is inconsistent with the provisions of the Principal Act as amended, stood repealed.

(2.) The aforesaid point arises out of the following facts. Smt. Sushil Sethi respondent obtained a decree for Rs. 19,540/- with costs against Gurmit Singh petitioner on 29th of July, 1976, and thereafter she took out execution of the decree and got the agricultural land of the judgment-debtor attached. While the execution was pending, the judgment-debtor filed application dated 10th of January, 1978, under Section 47 and Order XXI, rule 2(2) of the Code, stating therein that the entire amount had been paid to the decree-holder outside the Court and the adjustment of the decree be recorded by the Executing Court. The decree-holder, in reply to the aforesaid application, took the only stand that the application was time barred as it had not been presented within thirty days of the payment or the adjustment having been made. The Executing Court framed the following preliminary issue :-

(3.) Shri S.P. Jain, appearing for the judgment-debtor has submitted before me at the outset that the Court below has taken a wholly erroneous view of law and has misinterpreted the relevant provisions. According to him, Section 97 of the Amendment Act does not repeal the Act as the same is not inconsistent with any of the provisions of the principal Code as amendment by the Amendment Act and as such sub-rule (3) of rule 2 of Order XXI would not be read in the Code for purposes of application in Punjab as was the position before the Amendment Act. In order to appreciate the argument, it will be necessary to reproduce the relevant provisions. Rule 2 of Order XXI of the Code reads as follows :-