Arunachala Reddiar vs Muthusadasiva Mudaliar and Another

Satyanarayana Rao, J.—This appeal was referred to a Bench as Govinda Menon, J., was of opinion that as it raised a question of

importance it should be considered by a Bench, particularly in view of the conflict between two decisions, one of a Bench and the other of a Single

Judge, on the question raised in the appeal. The Bench decision is Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, and

the decision of the single Judge is Kamalammal Vs. Rajarathna Naicker, ..

The facts out of which this appeal arises may be shortly stated. The respondents obtained a final decree in a mortgage suit on nth February,

1941. The first execution petition was filed on 5th February, 1944, for the sale of the properties. That application was returned from time to time

for the filing of the sale papers and the encumbrance certificates, and while the decree-holder was praying for extension of time to comply with

those requirements, the executing Court required the decree-holder to produce also a copy of the final decree. The order directing production of a

copy of the final decree was made nearly two months after the filing of the application. The decree-holder obtained a month''s time to produce a

copy of the final decree, but as he was not in a position to produce the copy, the application was ultimately rejected by the Court on 28th June,

1944. The second execution petition was filed on 31st January, 1946. The judgment-debtor filed a counter in which he raised the contention that

execution was barred by limitation as the previous execution application was not one in accordance with law, as no decree copy was filed along

with the application.

This contention was overruled by the learned District Judge who heard the application, and he directed execution to proceed. The defendant

filed this civil miscellaneous appeal. The matter came up for admission before Rajamannar, J. as he then was, and while admitting the appeal, the

learned Judge made the following note:

The point in this C.M.A. is directly governed by Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, , but it is contended

that the effect of Rules 142 and 143 of the Civil Rules of Practice has not been considered in that decision. The point is arguable. Notice.

By the time the appeal came up for bearing before Govinda Menon, J., there was the decision of Somasundaram, J., in Kamalammal Vs.

Rajarathna Naicker, ., in which he considered the decision of the Bench in Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and

Another, , and was of opinion that Rules 142 and 143 of the Civil Rules of Practice are mandatory and as a decree copy was not filed along with

the first execution petition, the application was not one in accordance with law and would not save limitation for the succeeding execution petition.

In view of this decision which is in conflict with the Bench decision, Govinda Menon, J., thought that the matter should be considered by a Bench.

He, however, expressed his opinion that he was inclined to agree with the judgment of Somasundaram, J.

In view of these conflicting decisions, it becomes necessary, for us to examine the effect of the Civil Rules of Practice and canvass the

correctness of the decision of the Bench in Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, , which is in accordance

with an earlier decision of this Court in Pachiappa Achari v. Poojali Seenan ILR (1905) Mad. 557, which, however, was pronounced before the

Code of 1908 and under the Civil Rules of Practice made in the year 1905.

Before dealing with the decisions on the point, it is necessary to bear in mind the history of the Civil Rules of Practice, Nos. 142 and 143, with

which we are now concerned. Under the Code of 1882, the High Court was vested with the power of making rules of procedure. Section 652

runs as follows:

The High Court may, from time to time, make rules consistent with this Code to regulate any matter connected with its own procedure or the

procedure of the Courts of Civil Judicature subject to its superintendence. All such rules shall be published in the local official Gazette and shall

thereupon have the force of law.

By virtue of this power vested in the High Court, this Court framed Civil Rules of Practice, 1905, which came in o force on 1st April, 1905. Rules

164 and 165 are word for word the same as Rules 142 and 143 which are now found printed in, Vol. I of the Civil Rules of Practice complied by

Mr. Satyamurthi Ayyar. Under the Code of 1908 the rule-making power of the High Court is contained in Part X of the Code. By Section 122,

the High Court is empowered to make rules from time to time regulating its own procedure and the procedure of the Civil Courts subject to its

superintendence, and may by such rules annul, alter, or add to all or any of the rules in the First Schedule. Section 123 authorises the constitution

of a Rule Committee for the Province. The procedure for framing the rules is provided in subsequent sections. u/s 126, the rules require the

previous approval of the Government and have to be published u/s 127 in the Official Gazette. After the Code of 1908 came into force on 1st

January, 1909, no steps were taken by the High Court to re-enact the rules then in force, including Rules 142 and 143, with which we are now

concerned, under the procedure prescribed in Part X of the Code. From the Secretary of the Rule Committee, we gather that the proceedings of

the Rule Committee show that in 1910, the Registrar of this Court was of opinion that these rules should be re-enacted by the Code of 1908 but

the Rule Committee did not think it necessary in view of Section 157 of the Code. Under that section, it will be seen, that the old rules continue in

force, and have the same effect as if they had been made under the Code of 1908, unless they are inconsistent with any provision of the Code.

This section was construed by a Full Bench of this Court in Bademian Saheb v. Jankan Saheb (1038) 1 M.L.J. 495 : ILR 1938 Mad. 734 , and it

was there held that, if a rule is inconsistent with a provision in the Code it is invalid. At page 741 of the report, it was pointed out by the Full Bench

that after the Code of 1908 was enacted, the Civil Rules of Practice then in force were not re-enacted and published in accordance with the

provisions of Part X and that the validity of those rules therefore depended entirely on the provisions of Section 157 of the Code of 1908.

It will be seen from the foregoing that if a rule in the Civil Rules of Practice in force before 1908 is inconsistent with any provision of the Code of

1908, such a rule would be invalid and would have no operative force.

Rules 11 to 14 or Order 21 of the Code lay down the requirements of an execution application, and Rule 17, parts of which were amended by

this Court under its rule-making power lays down the procedure which the Court should follow on receiving an application for execution of a

decree. If the requirements of Rules 11 to 14 are complied with, then the Court would proceed with execution of the decree. But if they have not

been complied with, under Clause (1) of Rule 17, the Court may reject the application, if the defect is not remedied within a time to be fixed by the

Court. Of the provisions in Rules 11 to 14, it has been held by the Privy Council and by this Court that non-compliance with a permissive provision

like Rule 14 regarding the production of a Collector''s certificate does not make the application one not in accordance with law, but if a mandatory

provision like Sub-clause (2) of Section 11 requiring the number of a suit to be given in the application is not complied with, then the application

would not be one in accordance with law. The decision of the Judicial Committee is Govind Prasad v. Pawan-kumar (1943) 2 M.L.J. 121 : L.R.

70 IndAp 83: ILR 1943 Nag. 669 . It was considered by this Court in Vemulapalli Satyanarayana and Others Vs. Vetrapu Kajireddi and Others,

.

In Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, , which was a case in which a copy of the decree was not

produced, it was held by a Bench that non-compliance with the order of the Court directing the decree-holder to produce a copy of the decree

would not make the application one not in accordance with law. No doubt in that decision, no reference was made to Civil Rules of Practice 142

and 143. The earlier decision of this Court in Pachiappa Achari v. Poojali Seenan ILR (1905) Mad. 557, which was also a case relating to non-

production of the copy of a decree dealt with Rules 164 and 165 of the Civil Rules of Practice, and it was there held that the application,

notwithstanding the non-production of a copy of the decree was one in accordance with law. It was there pointed out that there being no omission

or error in the contents of the application itself, it was perfectly in accordance with law, and the defect of the non-production of a copy of the

decree was only an extraneous circumstance, the failure to produce which would not affect the validity of the application. It was also pointed out

that if a decree-holder does not comply with the order of the Court directing him to produce a copy of the decree, it would be perfectly open to

the Court not to proceed with the further execution until the defect is remedied by the production of the copy.

Relying on the decision in Hurish Chundra Chowdhury v. Kali Sundari Debia (1882-1883) L.R. 10 IndAp 4 : ILR 9 Cal, 483 which considered

the effect of Section 610 of the Code of 1877 corresponding to Order 45, Rule 15, of the present Code, the learned Judges were also of opinion

that notwithstanding the mandatory nature of the language of Rule 164 of the Civil Rules of Practice which is the same as Rule 142 of the present

rules, the non-compliance with the requirement would not affect the validity of the application. I may point out in this connection that this decision,

though it was pronounced under the rules as they stood before 1908, these rules have the same force as the present rules, since u/s 652 of the

Code of 1882, the rules published in the local Gazette have upon such publication the force of law. Under the present Code, Section 127 also

contains a similar provision. It states that from the date of publication or from such other date as may be specified, the rules have the same force

and effect as if they have been contained in the First Schedule. The effect of the language in both the provisions is substantially the same. No

distinction can therefore be made merely on the ground that there is no similar or corresponding provision like Section 127 of the present Code in

the old Code of 1882, as did Somasundaram, J., in Kamalammal v. Rajarathna Naicker (1940) 1 M.LJ. 66.

The question therefore reduces itself to this. As the Rules 142 and 143 now relied on were made under the Code of 1882, would they have

the effect of overriding the provision in Order 21, Rule 11(3). In other words, is the provision in Rule 142 inconsistent with Order 21, Rule 11(3)

within the meaning of Section 157 of the Code ? If it is inconsistent, as stated already, the rule must be ignored and the provision in the Code must

prevail. Under Order 21, Rule 11(3), the Court is given an option to require the applicant to produce a certified copy of the decree. Under Rule

142 of the Civil Rules of Practice, the judgment-creditor shall, together with his petition for execution of transmission of the decree, file in Court a

certified copy of the decree sought to be executed. The provision in the Rule 142 is not only inconsistent with Sub-clause (3) of Rule 11 of Order

21 but is diametrically opposed to it. While the one gives an option to the Court the other makes it obligatory on the part of the applicant to file a

certified copy of the decree along with the application. I have therefore no hesitation in rejecting the argument of the appellant that there is no

inconsistency between the two provisions and that therefore u/s 157 of the Code the rule must be given effect to. As there is a clear inconsistency

and as under the Code the production of the copy of the decree is only optional, I am of opinion that the first execution petition in the present case

is one in accordance with law and that notwithstanding the omission on the part of the learned Judges who decided Pola Venkatarama Sastri Vs.

Kakumani Venkatanarasimhan and Another, to refer to these two rules, 142 and 143, the correctness of it is not in any way affected by such

omission. We think that the distinction pointed out in the decision in Kamalammal v. Rajarathna Naicker (1940) 1 M.LJ. 66. that Venkatarama

Sastri v. Venkatanarasimhan (1937) 2 M.L.J. 88 I was a case which related to an application for execution and not for transmission of a decree is

of no consequence for the reason that under Rule 142, whether it was an application for execution or one for transmission of the decree, the

requirement is the same, and the word used is "" shall "" and not "" may "". The attention of the learned Judge who decided Kamalammal v. Rajarathna

Naicker (1940) 1 M.LJ. 66. was not apparently drawn to Section 157 of the Code and to the fact that the Civil Rules of Practice which were in

force at the time Pachiappa Achari v. Poojali Seenan ILR (1905)Mad. 557 was decided are the same as are now found in Vol. I of the Civil Rules

of Practice compiled by Mr. Satyamurthi Aiyar. As pointed out by Mr. Satyamurthi Aiyar himself, the numbering of the rules and the arrangement

and the reference to the corresponding provisions of the old Code were all introduced by him and it is not as if the High Court under its rule-

making power had, under the Code of 1908 exercising its powers under Part X of the Code, altered the number of the rules. The alteration of the

numbers from 164 to 142 and from 165 to 143 was not made by the High Court but presumably by Mr. Satyamurthi Aiyar. The assumption

underlying the decision of the learned Judge (Somasundaram, J.) that the present rules as now found in Vol. I were enacted after the Code of

1908, is not correct. As pointed out already, even under the old Code, the rules framed under it have the force of law and stand on the same

footing as rules framed under the present Code. Apparently, the attention of the learned Judge was not drawn to the language of Section 652 of

the Code of 1882.

We are therefore of opinion that the decision of the Bench in Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, was

correctly decided and that the decision of the single Judge in Kamalammal Vs. Rajarathna Naicker, is erroneous. We uphold the decision of the

learned District Judge that the execution petition is not barred by limitation and the appeal is dismissed with costs.

Viswanatha Sastri, J.

I would be content merely to express my concurrence with the judgment just delivered but for the fact that we are differing from the considered

opinion of Somasundaram, J., shared as it is by Govinda Menon, J., in his order of reference. In the case of Kamalammal Vs. Rajarathna Naicker,

, Somasundaram, J., decided that, under the present Civil Procedure Code, it was obligatory upon a decree-holder making his first application for

execution to file along with the execution application a certified copy of the decree sought to be executed and that a first execution petition filed

without a certified copy of the decree was not one in accordance with law within the meaning of Article 182, Clause (5) of the Limitation Act. The

learned Judge considered that Rule 142 of the Civil Rules of Practice was the governing provision and that its language was so mandatory as to

render a first execution application filed without a certified copy of the decree, an application not in accordance with law. There is an earlier

decision of a Bench of this Court to the contrary reported in Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, , under the

present Civil Procedure Code, but Somasundaram, J., considered that the learned Judges of the Division Bench had not considered or discussed

the relevant provisions of the CPC or Rule 142 of the Civil Rules of Practice, an omission which, in his opinion, apparently detracted from the

weight due to the judgment of the Division Bench. It is true that the learned Judges of the Division Bench rested their ""decision solely on the

language of Order 21, Rule 11, CPC and did not refer to the provisions of Sections 121, 122 and 127 of the Civil Procedure Code, or Rule 142

of the Civil Rules of Practice on which Somasundaram, J., has rested his decision. The question, however, is whether the decision of Division

Bench in Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan and Another, which is binding on us and which governs this case, requires to

be reconsidered (if necessary by a Full Bench) by reason of its conflict with the decision of Somasundaram, J., in Kamalammal Vs. Rajarathna

Naicker, .. I am respectfully of the opinion that the decision of the Division Bench in Pola Venkatarama Sastri Vs. Kakumani Venkatanarasimhan

and Another, lays down the law correctly. I may observe, lest it should be supposed that the point was overlooked, that the application before

Somasundaram, J., was one for transmission of a decree for execution while here, as in Pola Venkatarama Sastri Vs. Kakumani

Venkatanarasimhan and Another, , the application was for execution to the Court which passed the decree. This difference is, however, immaterial

in view of the terms of Rule 142 of the Civil Rules of Practice and the effect attributed to that rule by Somasundaram, J, in his judgment above

referred to.

Rule 142 of the Civil Rules of Practice is a mere re-numbering of the old Rule 164 framed under the CPC of 1882. It is material to point out

that Rule 142 has not been made or promulgated in accordance with the procedure prescribed by Part X of the CPC of 1908. The question that

arises is, how far the provisions of the CPC of 1908 override or are overridden by the Civil Rules of Practice framed under the CPC of 1882.

Section 157 of the CPC furnishes the answer and provides that rules made under the CPC of 1882 shall, so far as they are consistent with the

Code of 1908, have the same force and effect as if they had been made under the new Code. The necessary corollary is that if the Civil Rules of

Practice framed under the old Code are, to any extent, inconsistent with the provisions of the CPC of 1908, they pro tanto cease to have

operation after the coming into force of the CPC of 1908. Order 21, Rule 11 is part of the CPC of 1908 and in so far as Rule 142 of the Civil

Rules of Practice is inconsistent with it, the latter must stand abrogated. This is the decision of the Full Bench of this Court in Bademian Saheb v.

Jankan Saheb (1098) 1 M.L.J. 495 : ILR 1938 Mad.734 a case evidently not brought to the notice of Somasundaram, J.

The next question is whether Rule 142 of the Civil Rules of Practice is inconsistent with or repugnant to Order 21, Rule 11 of the CPC of

1908. Order 21, rule n, Clause (2) lays down with minute particularity the formalities required for a valid execution application. In the reported

decisions some of these requirements have been considered to be of a mandatory character and non-compliance with them has been held to

render the application one not in accordance with law. Among the formalities so enumerated in Order 21, Rule 11, Clause (2) as essential for an

execution application, the production of a certified copy of the decree sought to be executed is not one. Further, Sub-clause (3) of Rule 11

provides that

The Court to which an application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree.

The necessary implication is that the production of the certified copy of the decree sought to be executed as an annexure to the first execution

application is not necessary and a cretified copy need be furnished only if and when the Court requires the applicant to produce it. Rule 142 in so

far as it requires an applicant who first applies to execute his decree to produce along with the application a certified copy of the decree is, in my

opinion, inconsistent with Order 21, Rule 11, Sub-rules (2) and (3) and the two provisions cannot stand together. By virtue of Section 157 of the

CPC of 1908, Rule 142 of the Civil Rules of Practice must give way and Order 21, rule II, Sub-rules (2) and (3) alone must govern the decision

of this question. On this part of the case, therefore, I regret I am unable to agree with the opinion of Somasundaram, J.

Even when the CPC of 1882 was in operation and Rule 164 of the Civil Rules of Practice (corresponding to Rule 142) framed under that

Code was in full force, it was held by a Division Bench of this Court in Pachiappa Achari v. Poojali Seman I.L.R.(1905) Mad. 557, that the

provisions of Rule 164 of the Civil Rules of Practice (now Rule 142) were merely directory and that non-compliance with them did not render an

application for execution one not in accordance with law. Reliance was placed by the learned Judges on the analogous provisions of Section 610

of the CPC of 1877 corresponding to Order 45, Rule 15 of the present Civil Procedure Code, providing for the transmission of decrees of the

Judicial Committee for execution by Subordinate Courts and requiring a copy of the decree sought to be executed to be filed along with the

application for transmission. In Hurrish Chunder Chowdry v. Kali Sundari Debia (1882-1883) L.R. 10 I.A. 4 at pp. 15. and 16 : ILR 9 Cal. 482 ,

the Judicial Committee observed that the requirement of Section 610, Civil Procedure Code, 1877, was merely of a directory-nature intended to

supply proper information about the Order in Council. Their Lordships in Pachiappa Achari v. Poojali Seenan ILR 28 Mad. 557, placed reliance

on this decision of the Privy Council and came to the conclusion that the provisions of Rule 164 (now Rule 142) of the Civil Rules of Practice were

merely directory and that the omission to file a certified copy of the decree sought to be executed along with the first execution application did not

detract from its validity. Somasundaram, J., distinguished the case in Pachiappa Achari v. Poojali Seenan I.L.R.(1905)Mad. 557, on the ground

that Rule 164 (now Rule 142) of the Civil Rules of Practice had not the force of law under the Code of 1882 while it has acq aired such force by

reason of the enactment of Sections 121, 122 and 127 of the CPC of 1908. With all respect there is no warrant for this assumption which is a

subversion of the true position. Section 652 of the CPC of 1882 gave the rules made under that Code statutory force as if enacted in the body of

the Code itself and Rule 164 (now 142) of the Civil Rules of Practice had the force of law when Pachiappa Achari v. Poojali Seenan ILR (1905)

Mad. 557 was decided. Indeed, the position is that Rule 142 of the Civil Rules of Practice (old Rule 164) was legally operative at the time when

Pachiappa Achari v. Poojali Seenan I.L.R.(1905) Mad. 557 was decided and has now ceased to be such by reason of its repugnance to Order

21, Rule 11, Sub-rules (2) and (3) of the CPC of 1908. The distinction between a mandatory and a directory provision is not always easy to draw

and Pachiappa Achari v. Poojali Seenan I.L.R.(1905)Mad. 557, having held that the requirement as to the production of a certified copy of the

decree was of a directory nature, might well have been allowed to stand on the principle of stare decisis especially as the matter is one relating to

procedure.

For these reasons, I agree with my learned brother that a first application for execution which is not accompanied by a certified copy of the

decree cannot, for that reason, be considered to be one not in accordance with law under Article 182, Clause (5) of the Limitation Act. I also

agree with his conclusion as regards the result of this appeal.