GANPAT GIRLversusIIND ADDITLONAL DISTRICT JUDGE, BALIA & ORS.

                                                                15


                             GANPAT G!Rl                             A
                                 v.
                  !IND ADD!TlONAL DISTRICT JUDGE,
                            BALIA &ORS.

                           JANUARY 7 , 1986

              [E.S, VENKATARAMIAH AND R.B. MISRA, JJ.]

         Code of Civil Procedure (Amendment) Act 1976 - S. 97 -
   Scope of - Amending Act - Effect of - On entire Code of Civil
   Procedure, 1908,
         Order 21 Rule 72 (as in force in State of U.P.) -
   Whether ceases to operate on commencement of the Code of Civil    c
   Procedure (Amendment) Act, 1976.
         Code of Civil Procedure prior to its amendment by Code
   of Civil Procedure (Amendment) Act 1976, by sub-rules (1) and
   (3) of Rule 72, Order 21 laid down that no holder of a decree
   in execution of which property is sold shall, without the
   express permission of the Court, bid for or purchase the          D
   property and that where a decree-holder pruchases, by himself
   or through another person, without such permission, the court
   may, if it thinks fit.. on the application of the judgment-
   debtor or any oth.ir person whose interests are affected by the
   sale, by order set aside the sale, In the State of Uttar
   Pradesh, the High Court of Allahabad, by an amendment made to     E
   the aforesaid Rule, deleted sub-rules (1) and (3), The result
   was that in the case of a decree-holder the need for obtaining
   the express permission of the executing court before offering
'. the bid for or purchasing the property put up for sale under
   sub-rule (1) was not there and the power of the court to set
   aside the sale under sub-rule (3) of Rule 72 in the absence of    F
   such permission had also been taken away,
         By the Amending Act, 1976 seve~al amendments were
   carried out to the Code on the basis of the recommendations of
   the Indian Law Commission in its 54th Report in 1973. Since
   there were in force in different parts of India several
   amendments to the code which had been effected by the State       G
   Legislatures or by the High Courts, the Law Commission
   recommended that a new Rule 72-A may be .i<dded to Order 21 in
   which there was reference to sub-rules (2) and (3) of Rule 72


                                                                     H
    16                   SUPREME COURT REPORTS     (1%61 l s.c.R.

A
    in sub-rule (3) of Rule 72~A. Hence, even though Rule 72 was -1
    not amended by the Amending Act, its retention in the form in
    whieh it was in the code had been recommended by the Law
    Commission. Section 97 ( l) of the Amending Act provides that
    "any amendment made, or any provision · inserted in the
    principal Act by a State Legislature or a High Court before
B   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,"
            Respondent No. 3 obtained a decree for recovery of 1110ney
    on July 29, 1977 against the appellant. In execution of the .
    said decree, the illllllOveable property belonging to the
c   appellant was brought to sale by court on August 4, 1978 and
    at that court sale respondent No.3 was declared as the
    successful bidder, Before the sale was confirmed, the
    appellant filed an application for setting aside the sale on
    the ground that the decree holder had not obtained prior
    permission of the executing court under Rule 72(1) of Order 21
D   of the Code, The executing court set aside the sale, since
    admittedly no such permission had been obtained by the
    decree"'holder.
            The District Judge affirmed the aforesaid order in a
    revision petition filed by respondent No.3 - Decree-holder on
    the ground that on the commencement of the Amending Act by
E   virtue of section 97(1) thereof the local amendment made to
    Rule 72 of Order 21 of the Code prior to that date ceased to
    operate and the Code as amended by the Amending Act applied to
     the case. Aggrieved by the decision of the District Judge,
     respondent No.3 filed a petition under Art.226 before the High
    Court of Allahabad. The High Court all.owed the Writ Petition
F   holding that since the amending Act had not made amendment of
    any kind in so far as Rule 72 of Order 21 was concerned, the
     amendment made by the High Court of Allahabad to Rule 72 of
     Order 21 of the Code prior to the commencement of the Amending
    Act remained intact.
             Allowing the appeal to this Court ,
G            HELD: 1. The High Court was in error in holding that the
     ameru!.ed Rule 72 of Order 21 which was in force in the State of
     Uttar Pradesh prior to February 1, 1977 continued to be in
     force after that date and that the court sale held in which
     the decree-holder had purchased the property without the
     express permission of the executing court was unassailable
H    under sub-rule (3) of Rule 72. Therefore, the order passed by
     the High Court is set aside and the order passed by t ~e
        GANPAT GIRI v. l!ND ,ADDL. DISTT. JUDGE [vENKATARAMIAH, J.]   17
                                                                           A
        District Judge affirming the order of the executing court Is
  'r    restored. [24 C; 24 F]
              2.1 The object of section ·97 of the Amending Act appears
        to be that on and after February I, 1977 throughout India
        wherever the Code was in force, there should be same
        procedural law in operation in all the Civil Courts subject,       B
        of course, to any future local amendment that may be made··
        either by the State Legislature or by 'the High Court, as the
        case may be, in accordance with law. Until such amendment is
...,.   made the code as amended by the Amending Act alone should
        govern the procedure in civil courts which are governed by the
        Code. [19 F-G]
              2.2 The effect of section 97(1) is that all local
        amendments made to any of the provisions of the Code either by
                                                                           c
        a State Legislature or by a High Court which were inconsistent
        with the Code as amended by the Amending Act stood repealed
        irrespective of the fact whether the corresponding provision
        in the Code had been amended or 100dified by the Amending Act
        and that was subject only to what was found in sub-section (2)
                                                                           D
 .~     of section 97. Moreover, sub-section (3) of section 97 sets at
        rest doubts, if any, by making the Code as amended by the
        Amending Act applicable to all proceedings referred to therein
        subject to sub- section (2) of section 97. [23 G-11]
              CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18 of
        1986.
                                                                           E
              From the Judgment and Order dated 9.4.1985 of the
        Allahabad High Court in C.M.W.P. No. 2754 of 1981.

              S.N. Kacker   (Amicus curie) and   B.S. Chauhan for the
        Appellant.
                                                                           F
              Sunil K. Jain for the Respondents.
              The Judgn..nt of the Court was delivered by
              VENKATARAMIAH, J. We are principally concerned in this
        case with the effect of section 97 of the Code of Civil
        Procedure (Amendment) Act, 1976 (104 of 1976) (hereinafter
        referred to as 'the -Amending Act') on any amendment made or
                                                                           G
        any provision inserted in the Code of Ci vii Procedure, 1908
        (hereinafter referred to as. 'the Code') by a State Legislatµre
        or a High Court prior to the commencement of the Amending Act,
        i.e., prior to February I, 1977 in the different local areas
        in India where the Code is in force if they be inconsistent
        with the provisions of the Code as amended by the Amending
                                                                           H
        Act.
        18                  SUPREME COURT REPORTS     [1986] l s.c.R.


             Section 97(1) of the Amending Act reads thus:-
A
                  "any amendment made, or any provision inserted in
                   the principal Act by a StatP; 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 is however subject to sub-section
                                                                         ...
B
        (2) of section 97 of the Amending Act which provides that
        notwithstanding that the provisions of the Amending Act have
        come into force or the repeal under sub-section (1) of section
        97 of the Amending Act has taken effect, and without prejudice
        to the !ilenerality of the provisions of section 6 of the
        General Clauses Act, 1897, the provisions in clauses (a) to
c       (zb) of' that sub- section would prevail. Sub-section (3) of
        section 97 of the Amending Act provides that save as otherwise
        provided in sub-section (2), the provisions of the principal
        Act, as amended by the Amending Act, shall apply to every suit
        proceeding, appeal or application pending at the commencement
        of the Amending Act or instituted or filed after such
D
        connnencement, notwithstanding the fact that the right, or
        cause of action, in pursuance of which such suit, proceeding,
        appeal or application is instituted or filed, had been
        acquired or had accrued before such commencement.
             The principal Act referred to in section 97 is the Code.
        By the Amending Act several amendments were carried out to the
E
        Code on the basis of the .recommendations of the Indian Law
        Commission which had considered extensively the provisions of
        the Code before it submitted its 54th Report in 1973. By the
        time the Law Commission took up for consideration the revision
        of the Code, there were in force in different parts of India
        several amendments to the Code which had been effected by the
F
        State Legislatures or by the High Courts. The subject of civil
        procedure being in Entry 13 of List III of the Seventh
        Schedule to the Constitution, it is open to a State
        Legislature to amend the Code insofar as its State is
        concerned in the same way in which it can make a law which is
        in the Concurrent List. Section 122 of the Code empowers the
G
        High Courts to make rules regulating the procedure of civil
        courts subject to their superintendence as well as rules regu-
        lating their own procedure. These rules no doubt must not be
        inconsistent with the body of the code. But they can amend or
        add to rules in the First Schedule to the Code. Section 129 of
    H
GANPAT GIRI v. UNO ADDL. DlSTT. JUDGE [VENKATARAMIAH, J.]        19

                                                                       A
the Code which is overlapping on section 122 of the
Code to some extent cortf ers power on the Chartered High Courts
to make rules as to their original civil procedure. As
mentioned earlier, before the Amending Act came into force on
February 1, 1977 many of the provisiona of the Code and the
First Schedule had been amended by the State Legislatures or           B
the High Courts as the case may be and such amended provisiona
had been brought into force in the areas over which they had
jurisdiction. When the Amending Act was enacted making several
changes in the Code Parliament also enacted section 97
providing for repeals and savings and the effect of the
changes on pending proceedings.
     There are three sub-sectiona in section 97 of the                 c
Amending Act. A reading of section 97 of the Amending Act
shows that it deals Joli~ll ;;"118 effect of the Amending Act on the
entire Code both the . main part of the Code consisting of
sections and the First Schedule to the Code which contains
Orders and Rules. Section 97(1) of the Amending Act takes note
of the several local· amendments made by a State Legislature           D
and by a High Court before the commencement of the Amending
Act and states that any such amendment shall except insofar as
such amendment or' provision is consistent ·With the provisjons
of the Code as ·amended by the Amending Act stands repealed. It
means that any local amendment of the Code which is
inconaistent with the Code as amended by the Amending Act              E
would cease to be operative on the commencement of the
Amending Act, i.e., on February 1, 1977. The repealing
provision in section 97(1) is not confined in its operation to
provisions of the Code including' the Orders and Rules in the
First Schedule which are actually amended by the Amending Act.
The object of section 97 of the Amending Act appears to be             F
that on and after February l, 1977 throughout India wherever
the Code was in force there should be same procedural law in
operation in all the civil courts subject of course to any
future local amendment that may be made either by the State
Legislature or by the High Court, as the case may be in accor-
dance ·with law. Until such amendment is made the Code as amen-        G
ded by the Amending Act alone should govern the procedure in
civil courts which are governed by the.Code. We are emphasis-
ing this in view of the decision of the Allahabad High Court
which is now under appeal before us.
     This appeal by special leave is filed against the
judgment dated April 9, J.985 in Civil Miscellaneous Writ              H
Petition No. 2754 of 1981 en the file of the High Court of
Allahabad.
    20                   SUPREME COURT REPORTS      [19861 1 s.c.R.

          Jamuna Chaubey, respondent No. 3 herein obtained a decree·
A   for recovery of money of July 29, 1977 against the appellant
    Ganpat Giri in Original Suit No. 359 of 1973 on th" file of
    the Munsiff East, Balia. In execution of the said decree· the
    immovable property belonging to the appellant was brought to
    sale by court on August 4, 1978 and at that court sale
    respondent No.3 was declared as the successful bidder. Before
    the sale was confirmed, on August 12, l978 the appellant filed
B   an application for setting aside the sale under Rule 90 of
    Order 21 of the Code on several grounds. Later on he made an
    application stating that the sale was liable to set aside as
    respondent No. 3 who was the decree holder had not obtained
    the permission of the executing court under Rule 72(1) of
    Order 21 of the Code. The delay in filing that application was
c   condoned. The executing court upheld the plea of the judgment
    debtor, the appellant herein, relying upon sub-rule (3) of
    Rule 72.of Order 21 of the Code and set aside the sale by its
    order dated February 20, 1979, since admittedly no such
    permission had been obtained by the decree holder. The
    application under Rule 90 of Order 21 of the Code was
0   dismissed as not pressed. Another prayer made under Rule 89 of
    Order 21 of the Code was rejected on the ground that it had
    become infructuous. Aggrieved by the decision of the executing
    court respondent No. 3. filed a revision petition before the
    District Judge, Balia under the provisions of section 115 of
    the Code (as amended by section 3 of the Code of Civil
E   Procedure (Uttar Pradesh Amendment) Act 1978 with effect from
    August 1, 1972). The District Judge dismissed the revision
    petition on October 13, 1980. Against the decision of the
    District Judge respondent No. 3 filed a petition under Article
    226 of the Constitution before the High Court of Allahabad.
    The petition was allowed by the High Court holding that the
F   case was governed by Rule 72 of Order 21 of the Code as it was
    in force in the State of Uttar Pradesh before the Amending Act
    came into force. It may be stated here that both the executing
    court and the District Judge had upheld the contention of the
    judgment debtor that on the collllllencement of the Amending Act
    by virtue of section 97(1) thereof the local amendment made to
G   Rule 72 of Order of the Code prior to that date ceased to
    operate and the Code as amended by the Amending Act applied to
     the case. The High Court however took the view that since the
    Amending Act had not made amendment of any kind in so far as
    Rule 72 of Order 21 was concerned, the amendment made by the
     High Court of Allahabad to Rule 72 of Order 21 of the Code
H   prior to the commencement of the Amending Act remained intact.
            GANPAI GIRI v. IIND ADDL. DISTI. JUDGE [VENKATARAMIAH, J, j   21


            The High Court did not say anything on the question of                 A
            condonation of delay in making the application under Rule
            72(3) of Order 21 of the Code. It however stated that the
            application under Rule 89 of Order 21 of the Code could still
            be considered by the executing court. In this appeal by
            special leave ehe order of the High Court is questioned.
                 For purposes of ready reference Rule 72 of Order 21 as it     B
            is in the Code and as it was in the State of Uttar Pradesh
            prior to the commencement of the Amending Act are set out
    \       below:
                       "Order 21 Rule 72 88 it is in the Code.
                       72. Decree-holder not to bid for or buy property
                       without permission. - (1) No holder of a decree in
                       execution of which property is sold shall, without      c
                       the express permission of the Court, bid for or
                       purchase the property
                       Where decree-holder purchases, amount of decree may
                       be taken as payment. - (2) Where a decree holder
                       purchases with such permission, the purchase money
'   .,_,_              and the amount due on the decree may, subject, to       D
                       the provisions of Section 73, be set off against
                       one another, and the Court executing the decree
                       shall enter up satisfaction of the decree in whole
                       or in part accordingly.
                       (3) Where a decree-holder purchases, by himself or
                       through another person, without such permission,        E
                       the Court may, if it thinks fit, on the application
                       of the judgment-debtor or any other person whose
                       interests are affected by the sale, by order set
                       aside the sale; and the costs of such application
                       and order, and any deficiency of price which may
                       happen on the re-sale and all expenae attending it,     F
                       shall be paid by the decree-holder."
                       ''Order 21 ·Rule 72 88 it was in force in the State
                       of Uttar Pradesh prior to the colilllAAcement of the
                      Ammdfng Act.

                      Where a decree-holder purchases the property sold,       G
                      the-purchase money· and the amount due on the decree
                      may, subject to the provisiona of section 73 be set
                      off against one another, and the Court executing
                      the decree shall enter up satisfaction of the
                      decree in whole or in part accordingly. 11
                                                                               H
    22                    SUPREME COURT REPORTS         [1986] l s.c,R.


    The difference between the Code and . the rule as it was in
A   force in State of Uttar Pradesh prior to the collllllencement of
    the Amending Act was that in the State of Uttar Pradesh
    sub-rules (1) and (3) of Rule 72 of Order 21 had been
    completely deleted and sub- rule (2) had been renumbered as
    Rule 72 with the modification that for the words "wi.th such
    permissfon" the words "the property sold" had been substitu-
    ted. The result was that in the case of a decree-holder the
B   need for obtaining the express pennission of the executing
    court before offering the bid for or purchasing the property
    put up for sale under sub-rule (l) was not there and the power
    of the Court to set aside the sale under sub-rule (3) of Rule
    72 in the absence of such pennission had also been taken away.
         The question whether Rule 72 of Order 21 of the Code
c   required any modification was considered by the Law Collllllission
    before it made its recommendation in its 54th Report. Its
    observations at pp 182-183 of the Report are as follows:
               "Order 21, rule 72
               21.36. With reference to Order 21, rule 72, a point
               was considered in the earlier Report. A recommen-
D              dation had been made in the Fourteenth Report to
               the effect, that a decree-holder should be allowed
               to purchase property unless the court has prohibi-
               ted him from doing so. The object of the recommen-
               dation was to avoid the delay that is frequently
                caused when the warrant of sale is returned unex~­
E               cuted in the absence of bidders. An amendment
                carrying out this recommendation was proposed in
                the draft Report on the Code which had been
                circulated.   Cormnents   received   thereon,   however,
                emphasised the need for the court being aware of           .,.
                any proposal by the decree holder to bid. The
F               earlier Collllllission thought that there was for~e in
                this approach and a decision was taken not to
                disturb the existing rule.

                We have considered this matter further, and have
                come to. the conclusion that the approach in the
G               earlier Report on the Code was correct. Hence no
                change is recommended.

                Order 21, rule 72


H
     GANPAT GIRI v. IINO ADDL. DISTT. JUDGE [VENKATARAMIAH, J.]       23

                21. 36-A. We have considered the more fundamental
                question if rule 72 should be retained at all. The         A
                object behind this provision is to ensure fairness
                in the auction. The decree holder, if interested in
                purchasing the property himself, can conceivably,
                keep back or discourage (or even mislead) prospec~
                tive purchasers. Ordinarily, the fetching of a
                higher purchase price would be in his interest (as         B
                likely to satisfy his claim without further execu-
                tion). But it should not be forgotten that when he
                is the purchaser this consideration takes leave,
                and he like every purchaser would like the price to
                be low. To a certain extent , he has a hand . in
                initiating, the sale, though not so in theory. It
                is he who obtains the proclamation of sale; and,           c
                though the' rules in Order 21 do not so require, it
                is he who is expected to assist, and even to guide,
                the process serving staff in various matters
                concerning     execution   e.g.,   affixation   of   the
                proclamation etc. He also estimates the price. For
-<              these reasons, it is better to keep the existing           D
                safeguard.''
          Having observed this, it proceeded to recommend that a
     new rule 72-A may be added to Order 21 in which there was
     reference to sub-rules (2) and (3) of Rule 72 in sub-rule (3)
     of Rule 72-A.
          It is thus seen that even though Rule 72 was not amended         E
     by the Amending Act its retention in the form in which it was
     in Code had been recommended by the Law Commission for the .
     reasons given by it.
          Now reverting to section 97(1) of the Amending Act, the
     High cOurt was in error iti holding that because no 'amendment
 ~   had been made to Rule 72 by the Amending Act, section 97(1)           F
     had no effect on the Rule as it was in force in the State of
     Uttar Pradesh before the commencement of the Amending Act. As
     observed earlier, the effect of section 97(1) is that all
     local amendments made to any of the provisions of the Code
     either by a State Legislature or by a High Court which were
     inconsistent with the Code as amended by the Ainending Act            G
     stood repealed irrespective of the fact whether the corres-
     ponding provision in the Code had been amended or modified by
     the Amending Act and that was subject only ·to what was found
     in sub-section (2) of section 97. Sub-section (3) of section
     97 provides that save as otherwise provided in sub- section
                                                                           H
    24                    SUPREME COURT REPORTS      [ 1986] l s.c.R.


    (2) the provisions of the Code as amended by the Amending 'Act
A   shall apply to every suit, proceeding, appeal or application        ·-!
    pending at the commencement of the Amending Act or instituted
    or filed after such commencement notwithstanding the fact that
    the right or cause of action in pursuance of which such suit,
    proceeding, appeal or application is instituted or filed had
    been acquired or had accrued before such commencement. Sub-
B   section (3) of section 97 sets at rest doubts, if any, by
    making the Code as amended by the Amending Act applicable to
    all proceedings referred to therein subject to sub-section (2)        Y
    of section 97.
          The High Court was therefore in error in holding that the
    ainended l\ule 72 of Order· 21 which was in force in the State of
c   Uttar Pradesh prior to February l, 1977 continued to be in
    force after that date and that the court sale held in which
    the decree holder had purchased the property without the
    express permission of the executing court was unassailable
    under sub-rule (3) of Rule 72,
          We do not in the circumstances of the case find any merit
D   in the contention of the respondent No. 3 that the prayer made
    under Order 21, Rule 72(3) of the Code was barred by time
    particularly because of the doubts about its applicability in
    the State of Uttar Pradesh being there. At this stage we find
    it unjust to consider the plea of limitation when the High
    Court and the Subordinate Courts below have not found it
    proper to reject the application on that ground.
E         The order passed by the High Court is, therefore, set
    aside and the order passed by the District Judge affirming the
    order of the executing court is restored.

         The appeal is accordingly allowed. No costs.

         We thank Shri S.N. Kacker, Senior Advocate, who assisted
F   us in this case at our request as amicus curiae.




    M.L.A.                                          Appeal allowed.




                                                                              ''



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