N. Rajendran vs Shriram Chits Tamil Nadu Pvt. Ltd.

V. Ramasubramanian, J.—The civil revision petition arises out of the refusal of the District Munsif Court, Tiruvarur, to entertain an

application to condone the delay of 10 days in seeking to set aside the exparte order of attachment.

Heard Mr. N.S. Siva Prakash,Learned Counsel for the Petitioner and Mr. P. Ravishankar Rao,Learned Counsel for the Respondent.

The Respondent obtained an ex parte award on 17.7.2008 in ARC No. 44 of 2006 filed under the Tamil Nadu Chit Funds Act. One Mr. D.

Selvaraj, who was the first Defendant in those arbitration proceedings, was the borrower and three persons, by name Balashanmugam, Rajendran

and Krishnamurthy were the Guarantors. Mr. N. Rajendran who was one of the Guarantors, is the Petitioner herein.

The Respondent herein, the award holder, filed E.P. No. 70 of 2009 on the file of the District Munsif Court, Tiruvarur, for executing the award.

The executing Court set the Petitioner ex parte and ordered attachment of the salary on 14.7.2010.

Thereafter, the Petitioner herein filed an application in unnumbered E.A. No. of 2010 seeking condonation of the delay of 10 days in filing the

application seeking to set aside the ex parte order. The Petitioner filed the said application u/s 5 of the Limitation Act, 1963.

After referring to the provisions of Section 5 of the Limitation Act, 1963 and Order XXI, Rule 106, Code of Civil Procedure, the District

Munsif, Tiruvarur, rejected the unnumbered application as not maintainable, on the ground that Section 5 of the Limitation Act, 1963, has no

application to execution proceedings. Aggrieved by the said order, the Petitioner has come up with the above revision.

Relying upon a decision of a Division Bench of the Madhya Pradesh High Court in Devendra Kumar Vs. Jaidayal, and the decision of a Full

Bench of the Andhra Pradesh High Court in Ch. Krishnaiah v. Ch. Prasada Rao 2010 (2) CTC 225, it is contended by Mr. N. Siva

Prakash,Learned Counsel for the Petitioner that by virtue of the Madras (Pondicherry) High Court Amendment to Order XXI, a power to

condone the delay is conferred upon the Executing Court under the proviso to Sub-rule (3) of Rule 105 (as it existed earlier) of Order XXI. This

Madras High Court Amendment, according to theLearned Counsel for the Petitioner, was not repealed by successive amendments in the years

1976, 1999 and 2002 to the Code of Civil Procedure.

In response to the above contention, it is argued by theLearned Counsel for the Respondent that the Madras High Court Amendments to the

Code, made before 1976, stood repealed in view of the statutory provisions. According to theLearned Counsel for the Respondent, the issue is no

longer res integra, in view of the decision of the Division Bench in Natarajan N.M. v. Deivayanai Ammal 1989 (1) LW 178 and the decision of a

learned Judge of this Court in M. Ponnupandian Vs. Selvabakiyam, Pasa Annamarial, Bethelraj and Kodipritha, . TheLearned Counsel for the

Respondent also relies upon the decision of the Supreme Court in Damodaran Pillai and Others Vs. South Indian Bank Ltd., , in support of his

contention that Section 5 of the Limitation Act is not applicable to execution proceedings.

I have carefully considered the rival submissions. But, in order to understand the scope of the legal issue raised in this revision, it is necessary for

us to travel back in point of time, by about a few decades and trace the historical developments.

The Code of Civil Procedure, as it originally was, comprised of several parts. The first Part, which is commonly known as ""the Sections Part"",

comprised of Sections 1 to 158. The second Part comprised of a set of Rules under different Orders and is captioned as The First Schedule. The

third Part comprised of Schedules II, III, IV and V, all of which were repealed at various points of time under different enactments in 1940, 1956,

1952 and 1914 respectively. To the second Part comprising of the First Schedule, innumerable forms were attached as Appendices A to H.

Though all the different parts together constitute the Code of Civil Procedure, the contents of different Orders in the First Schedule were referred

to only as ""Rules"". This may be seen from Section 121 of the Code, which declares that the rules in the First Schedule shall have effect as if

enacted in the body of this Code, until annulled or altered in accordance with the provisions of this Part.

Therefore, the Code appears to have recognised, from the very beginning, that what was contained in the ""Sections Part"" should be taken to

be the ""body of the Code"" and what was contained in the First Schedule should be taken as ""the Rules"" (as per Section 121 of the Code).

As a matter of fact, the report of the Select Committee itself indicates that the Code was rearranged in 1908 into (i) body of the Code, and (ii)

Rules, for the purpose of giving a much needed elasticity to judicial procedure and to enable minor defects to be remedied, as they arise, without

resort to the Legislature. However, in order to confer upon those Rules, a statutory force, Section 121 itself provided that the Rules contained in

the First Schedule shall have effect as if they were enacted in the body of the Code.

After having created such a dichotomy between ""body of the Code"" and ""the Rules"", for the purpose of flexibility and after having conferred

statutory force even upon the Rules, Section 122 of the Code conferred powers upon the High Courts to make Rules regulating their own

procedure and the procedure of the Civil Courts, subject to their superintendence. Section 122 conferred powers upon the High Courts to annul,

alter or add to all or any of the Rules in the First Schedule. It must be noted that the power to amend is only with regard to the Rules contained in

the First Schedule and not with regard to the ""body of the Code"". Thus, the Code was conceived in 1908 as a complete document comprising of

an inflexible portion and a flexible portion.

In exercise of the powers conferred by Section 122 of the Code, several High Courts made several amendments to the Rules contained in the

First Schedule. For the purpose of our case, we are today concerned only with a few amendments made by Madras High Court to some of the

Rules contained in Order XXI of the Code.

Order XXI, as it was originally enacted in 1908, comprised only of 103 Rules. However, by P. Dis. No. 397 of 1945 dated 04.9.1945, Rules

104 and 105 were inserted by Madras (Pondicherry) High Court Amendment, to Order XXI. The Rules so inserted read as follows:

R.104. (1) The Court before which an application under any of the foregoing rules of this Order is pending may fix a day for the hearing of the

application.

(2) Where on the day fixed or any other day to which the hearing may be adjourned the applicant does not appear, when the case is called on for

hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the Respondent to whom the notice has been issued by the Court does not appear, the Court may hear the

application ex parte and pas such order as it thinks fit.

Explanation.-An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58 of this Order. R.105. (1) The applicant,

against whom an order is made under Sub-rule (2) of the preceding rule or the Respondent against whom an order is passed ex parte under Sub-

rule (3) of the preceding rule or under Sub-rule (1) of Rule 23 of this Order, may apply to the Court to set aside the order and if he satisfies the

Court that there was sufficient cause for his non-appearance, when the application was called on for hearing, the Court shall set aside the order on

such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the opposite party.

(3) An application under Sub-rule (1) shall be made within thirty days of the date of the order or where in the case of an ex parte order the notice

was not duly served, the date when the applicant had knowledge of the order.

(4) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under Sub-rule (1).

It was pointed out by Ganapatia Pillai, J, in M. Abdul Salam and Others Vs. Lourdusami Chettiar, that as per the Full Bench decision in

Alagasundaram Pillai Vs. Pichuvier, , the Courts governed by the Code had no inherent power to set aside orders in any case where other remedy

existed. Therefore, Ganapatia Pillai, J, pointed out that it was only with a view to remedy this state of affairs that Rules 104 and 105 were inserted

under Order XXI in the year 1945 by Madras High Court Amendment.

It must be noted that Code of Civil Procedure, 1908, consolidated and amended the existing law, whose history could be traced to (i) a first

Code of the year 1859, followed by various amendments in 1860, 1861 and 1871, (ii) a second Code enacted in 1877, followed by the

amendments in 1878 and 1879, and (iii) a third Code enacted in 1882. In the very same year 1908, the Indian Limitation Act was also issued.

Therefore, as pointed out by Ganapatia Pillai, J, Rules 104 and 105 were inserted by Madras High Court Amendment in 1945 for two

purposes, viz., (i) to confer a power upon the civil Courts to set aside its own orders and (ii) to enable the Court to condone the delay by invoking

Section 5 of the Limitation Act, 1908. In other words, Sub-rule (4) of Rule 105, making the provisions of Section 5 of the Limitation Act, 1908

applicable to the proceedings under Sub-rule (1), was intended to make the power of the 8 Court to set aside its own orders, more meaningful.

However, in the year 1963, the Indian Limitation Act, 1908, was repealed and replaced by the Limitation Act, 1963. Under this 1963

Limitation Act, Section 5 was worded in such a manner that it was per se made inapplicable to execution proceedings. It is to be noted that

Section 5 of the Limitation Act, 1963, begins with a statement ""any application other than an application under any of the provisions of Order XXI

of the Code of Civil Procedure, 1908"". This led to an anomalous situation. On the one hand, the Madras High Court Amendment, by which Rule

105(4) had been inserted under Order XXI, made the provisions of Section 5 of the Indian Limitation Act, 1908, applicable to proceedings under

Rule 105(1). On the other hand, Section 5 of the Limitation Act, 1963, made it inapplicable to the proceedings under Order XXI. In the light of

such a mandate contained in the parliamentary enactment of 1963 (Section 5 of the Limitation Act), the High Court Amendment to Order XXI,

Rule 105(4) became otiose and unenforceable. It may be recalled from the first part of this discussion that the power of the High Courts, even to

amend the Code, was confined only to ""the Rules Part"" contained in the First Schedule. No power was conferred upon the High Court to amend

the ""Sections Part"" or the ""body"" of the Code. When the High Court had no power even to amend ""the Sections Part"" or the ""body of the Code"",

the High Court Amendment to Order XXI, Rule 105(4) could have no legs to stand after Section 5 of the Limitation Act, 1963, came into force.

The above conflict was resolved by the High Court by another amendment made with effect from 01.11.1972. The amendment made by the

Madras High Court with effect from 01.11.1972 did two things. The first was to delete Sub-rule (4) of Rule 105 and the second was to insert a

proviso under Rule (3) of Rule 105. The proviso inserted under Sub-rule (3) of Rule 105 of Order XXI, by the Madras High Court Amendment

with effect from 01.11.1972 reads as follows:

Provided that an application may be admitted after the said period of 30 days, if the applicant satisfies the Court that he had sufficient cause for not

making the application within such period.

The consequences of the above Madras High Court Amendment made with effect from 01.11.1972 were two fold, viz.,

(i) the conflict between Section 5 of the Limitation Act, 1963, and Order XXI, Rule 105(4) got resolved, with the deletion of Sub-rule (4); and

(ii) the power to condone the delay was conferred upon the Executing Court by a rule of procedure traceable to the proviso under Rule 105(3)

itself, rather than to an extraneous enactment, such as the Limitation Act, 1963.

After the Madras High Court Amendment of 1972, the entire CPC itself got revamped by Central Act 104 of 1976, which brought sweeping

changes to the rules of procedure followed by civil Courts. Act 104 of 1976 did not stop with an amendment to the Code, but also amended

Article 127 in the Schedule to the Limitation Act, 1963. A look at Act 104 of 1976, by which the entire Code was revamped, would show that

the said enactment was divided into six chapters. Chapters I to VI dealt with (i) preliminary, (ii) amendment to Sections, (iii) amendment of the

Orders, (iv) amendment of the Forms, (v) repeal and savings, and (vi) amendment of the Limitation Act, 1963. I am recording this for the sole

purpose of driving home the point that even the 1976 amendment retained the distinction between the ""body of the Code"" or the ""Sections Part of

the Code"" on the one hand and the ""Rules Part of the Code"" on the other hand.

Section 72 of the Amendment Act 104 of 1976, introduced several changes to the Rules contained in Order XXI of the Code. By this

Section, Rules 104 to 106 were inserted under Order XXI. It may be recalled that till 1976, Order XXI contained only up to Rule 103. Rules 104

to 106 introduced by Act 104 of 1976 read as follows:

104.-Order under Rule 104 or Rule 103 to be subject to the result of pending suit. -Every order made under Rule 101 or Rule 103 shall be

subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the

party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the

property.

Hearing of application.-

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the

application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant doesnot appear when the case is called on

for hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the

application exparte and pass such order as it thinks fit.

Explanation.-An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58.

Setting aside orders passed ex parte etc.

(1)The applicant, against whom an order is made under Sub-rule (2) of Rule 105 or the opposite party against woman order is passed ex parte

under Sub-rule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that

there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms

as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the

notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.

A comparison of Rules 104 and 105 inserted by Madras (Pondicherry) High Court Amendment with effect from 04.9.1945, with Rules 104 to

106 inserted by Amendment Act 104 of 1976, would show that Rule 104 of the Madras High Court Amendment is in pair materia with Rule 105

inserted by Amendment Act 104 of 1976. Similarly, Rule 105 of the Madras High Court Amendment is in pari materia with Rule 106, except that

neither the proviso under Sub-rule (3) of Rule 105 nor Sub-rule (4) of Rule 105, find a place in Rule 106 as inserted by the Amendment Act 104

of 1976.

Section 97 of the Amendment Act 104 of 1976 dealt with repeal and savings. Sub-section (1) of Section 97 reads as follows:

(1) Any amendment made, or any provision inserted in the principal Act by State Legislature or a High Court before the commencement of this

Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand

repealed.

The above provision made it clear that an amendment made by a State Legislature or High Court, to the principal Act, would also stand

repealed by the Amendment Act, if any such amendment was inconsistent with the provisions of the principal Act that were expressly repealed by

the Amendment Act 104 of 1976. Such an omnibus provision was incorporated obviously on account of the fact that the repeal and savings clause

contained in the Amendment Act cannot deal with innumerable amendments made by various High Courts or the State Legislatures to the Code

before 1976. Therefore, Section 97(1) of Amendment Act 104 of 1976 merely contained an omnibus provision to repeal by one stroke, all State

and High Court Amendments that became inconsistent with the provisions of the amended Code.

After the Code of 1976 came into force, conflicting opinions came to be expressed by two learned Judges of this Court (Balasubrahmanyan, J

and Mohan, J,) on the question of the applicability of the provisions of Section 5 of the Limitation Act, 1963, to applications under Order XXI.

Therefore, Kader, J, (as he then was) referred the issue to a Division Bench in Natarajan, N.M. Daivayanai Ammal [1989 (1) LW 178]. A careful

reading of the decision of the Division Bench in Natarajan, N.M. would show (paragraph 3 of the judgment) that what was referred to the Division

Bench was ""the question of applicability of the provisions of Section 5 of the Limitation Act, 1963, to applications under Order XXI of the Code"".

Therefore, the Division Bench referred to the provisions of Order XXI, Rule 105, as they existed prior to Act 104 of 1976 (in terms of

Madras Amendment), in the context of Section 97(1) of the Amending Act and the provisions of the Indian Limitation Act, 1908 and the

Limitation Act, 1963, and concluded that there is a statutory bar in applying the provisions of Section 5 of the Limitation Act, 1963, to the

proceedings under Order XXI of the Code.

But, a careful reading of the decision of the Division Bench would show

(i) that what was referred to the Division Bench and what was answered by the Division Bench was only the question about the applicability of

Section 5 of the Limitation Act, 1963, to the proceedings under Order XXI;

(ii) that consequently the focus of the Division Bench was only to Sub-rule (4) under Rule 105 of Order XXI inserted by way of Madras High

Court Amendment with effect from 04.9.1945; and (iii) that the Division Bench did not address itself to the amendment made by this Court with

effect from 01.11.1972, by which Sub-rule (4) to Rule 105 was deleted and a proviso was inserted under Sub-rule (3) itself to Rule 105.

In other words, the Division Bench did not deal with the deletion of Sub-rule (4) of Rule 105 by the High Court Amendment issued with effect

from 01.11.1972. The Division Bench also did not deal with the insertion of the proviso under Sub-rule (3) of Rule 105 by the very same High

Court Amendment with effect from 01.11.1972.

The non applicability of the provisions of Section 5 of the Limitation Act, 1963, as pointed out by the Division Bench in Natarajan, N.M.,

flowed out of the very statute itself. As pointed out earlier, Section 5 of the Limitation Act, 1963, begins with a statement ""any appeal or any

application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908"". Therefore, the Division

Bench was convinced to hold that in the light of the express bar u/s 5 of the Limitation Act, 1963, Sub-rule (4) of Rule 105 of Order XXI cannot

stand. To put it differently, if Sub-rule (4) of Rule 105 (as it stood prior to 1976) was allowed to stand, a very piquant situation would have arisen,

viz., Section 5 of the Limitation Act, 1963 which makes it inapplicable to the proceedings under Order XXI would stand in conflict with Rule

105(4) which made it applicable. There was only one way this conflict could be resolved, viz., by allowing Section 5 of the Central Act to stand

and allowing the destruction of Sub-rule (4) of Rule 105, which was only a High Court Amendment.

Therefore, the Division Bench found that the conflict could be easily resolved by holding that Sub-rule (4) of Rule 105 stood repealed impliedly

by Section 97(1) of the Amending Act 104 of 1976. But, this exercise itself was redundant, in view of the fact that Sub-rule (4) of Rule 105 was

not at all in force when the Division Bench considered the case in Natarajan, N.M., as it had been deleted by the High Court Amendment with

effect from 01.11.1972. Hence, the said decision of the Division Bench, cannot be taken to be providing the ratio decided for deciding the issue on

hand.

However, in M. Ponnupandian Vs. Selvabakiyam, Pasa Annamarial, Bethelraj and Kodipritha, , the proviso to Sub-rule (3) of Rule 105 of

Order XXI, inserted by the High Court Amendment with effect from 01.11.1972, was brought to the notice of S. Sardar Zackria Hussain, J, (as

he then was). However, the learned Judge merely followed the decision of a Division Bench in Natarajan, N.M. and held that after the Amendment

Act 104 of 1976, the provisions of Sub-rule (3) as well as Sub-rule (4) of Rule 105 were inapplicable. The real import of the proviso inserted to

Sub-rule (3) of Rule 105 was not analysed in the said decision. Therefore, the said decision also cannot be taken to be laying down the law with

regard to the statutory effect 16 of the proviso to Sub-rule (3) of Rule 105.

It is fundamental to point out that the applicability of Section 5 of the Limitation Act, 1963 would stand on a different footing than the power of

a Court to condone the delay, flowing out of the provisions contained in a statue which itself prescribes the period of limitation. There are several

special enactments where periods of limitation are prescribed. When those special enactments themselves provide a period of limitation as well as

a power upon the Court to condone the delay, one need not have to take recourse to the Limitation Act, 1963 at all. When a Court need not draw

power to condone the delay from Section 5 of the Limitation Act, but could draw such a power from the very provisions of the enactment under

which a case is decided, the said power cannot be obliterated, except by any express or implied repeal, in terms of any amendment made

specifically.

In Damodaran Pillai and Others Vs. South Indian Bank Ltd., , the Supreme Court was concerned with the effect of the Kerala Amendment to

Rule 105. As seen from paragraph 15 of the decision, the Supreme Court pointed out that the Kerala Amendment providing for the application of

Section 5 of the Limitation Act under Rule 105 of Order XXI became inapplicable, after coming into force of the Limitation Act, 1963. In other

words, the Kerala Amendment appears to have been in tune with Sub-rule (4) of Rule 105 inserted in the year 1945 by way of amendment by this

Court. Therefore, the Supreme Court held that after the Limitation Act, 1963, came into force, the Kerala Amendment, taking recourse to Section

5 of the Limitation Act, 1908, would not be applicable. But, it is not known whether there was any amendment in Kerala, similar to one that was

made by this Court with effect from 01.11.1972, by which, Sub-rule (4) was deleted and a proviso was inserted under Sub-rule (3) itself.

Therefore, the decision in Damodaran Pillai cannot be invoked to the advantage of the Respondent, in the absence of a clear indication that even in

Kerala, a proviso was inserted under Sub-rule (3) of Rule 105, as this Court has done with effect from 01.11.1972.

In Ch. Krishnaiah, a Full Bench of the Andhra Pradesh High Court was concerned with the question as to whether Order XXI, Rule 106(4),

CPC was enforceable in the State of Andhra Pradesh or not. After taking note of Section 122, Code of Civil Procedure, and Section 29 of the

Limitation Act, the Full Bench of the Andhra Pradesh High Court distinguished the decision in Damodaran Pillai and held that notwithstanding the

repealing provisions contained in 1999 and 2002 Amendments to the Code of Civil Procedure, Rule 106(4) of Order XXI, inserted by the High

Court in exercise of the power u/s 122, would enable a party even to invoke Section 5 of the Limitation Act.

I would not go so far, as the Full Bench of the Andhra Pradesh High Court had gone. In fact, I need not. As pointed out earlier, a Court in

Tamil Nadu need not, nay cannot, invoke Section 5 of the Limitation Act, 1963, by taking recourse to Rule 105(4) as Sub-rule (4) was deleted

way back in 1972. It is enough if the proviso to Sub-rule (3) of Rule 105 is invoked.

But, then the next question which is crucial is as to whether the proviso under Sub-rule (3) of Rule 105 also stood repealed in terms of Section

97(1) of Amendment Act 104 of 1976 or not.

The above question came up for consideration before a Division bench of Madhya Pradesh High Court in Devendra Kumar Vs. Jaidayal, .

The Division Bench of Madhya Pradesh High Court took a view that the expression ""principal Act"" occurring in the last sentence of Section 97(1)

of the Amendment Act 104 of 1976 would refer only to the ""body of the Code"" or the ""Sections Part of the Code"" and not to the First Schedule.

Consequently, the Division Bench of the Madhya Pradesh High Court held that the Madhya Pradesh High Court Amendment to Order XX, Rule

11(2), made prior to 1976, did not stand repealed by Act 104 of 1976, as it was not inconsistent with the amendments introduced.

I would also not go so far as the Madhya Pradesh High Court had done. It is for the simple reason that if the phrase ""principal Act"" is

construed to mean only the ""body of the Code"", Section 97(1) of Act 104 of 1976 would have no meaning at all. The only power that the High

Courts have u/s 122 of the Code is to amend the First Schedule and not the body of the Code. When Section 122 of the Code does not confer

any power upon the High Court to amend the body of the Code, but confers power only to amend the Rules in the First Schedule, the question of

repealing the amendment to the body of the code, if any made by the High Court, would not arise at all. In other words, if the expression ""principal

Act"" appearing in Section 97(1) of the Act 104 of 1976 is taken to indicate the amendments made only to the body of the Code, it would actually

be repealing something that a High Court never did and could never have done. Therefore, today, the only test is as to whether the amendments

made by the Madras High Court with effect from 01.11.1972 would also stand repealed either by Amendment Act 104 of 1976 or by the

subsequent Amendment Acts.

Section 97 of the Amendment Act 104 of 1976 repealed only those State amendments, which were inconsistent with the amendments

introduced under Act 104 of 1976. Similarly, Section 32 of the Amendment Act 46 of 1999 also made it clear that any amendment made or any

provision inserted in the principal Act by a State Legislature or High Court shall also stand repealed, except insofar as it is consistent with the

provisions of the principal Act. In other words, the State or High Court Amendments, which were inconsistent with the amended provisions, were

directed to stand repealed.

Act 22 of 2002 contained a provision for repeal and savings u/s 16. Section 16(1) was in pari materia with Section 32(1) of Act 46 of 1999,

both of which were identical to Section 97(1) of Act 104 of 1976. Therefore, what should be taken to have been repealed would be those

provisions of the State or High Court Amendment, which became inconsistent with the amendments introduced. There is nothing on record to

show that the proviso to Sub-rule (3) of Rule 105, which would now become the proviso to Sub-rule (3) of Rule 106 of Order XXI, is, in any

way, inconsistent with the amendments introduced either in 1976 or in 1999 or even in 2002. So long as the proviso under Sub-rule (3) is not

shown to be inconsistent with any of the amendments, it cannot be stated to have been repealed under the Central Amendment Acts.

Therefore, I am of the view that the order of the Court below, refusing to entertain the application on the ground that it was filed beyond 30

days and that there was no power to entertain the same, is not in accordance with law. Hence, the impugned order of the Court below is set aside

and the Court below is directed to number the application and take it up for hearing.

However, in view of the fact that the award has also attained finality, I should put the Petitioner on terms. Hence, the Petitioner is directed to

pay a sum of Rs. 10,000/-directly to the Respondent on or before 27.9.2011, which will be appropriated towards the decree debt. The Court

below shall call the application on 29.9.2011 to see if the Petitioner has complied with the condition. If he has complied with the condition, the

Court below shall proceed further with the hearing of the application and dispose it of in accordance with law, within a period of two months.

Consequently, M.P. No. 1 of 2011 is closed.