(Made by Venkataramana Rao, J.)
The order of the learned District Munsif is in accordance with Rr. 114 to 120 of the Civil Rules of Practice but it is contended by Mr. C.S Swaminathan that the said rules are ultra vires as being in conflict with O. 20, R. 17 Civil Procedure Code, and as not having been framed in the manner and by the authority prescribed by the new Code for making valid new rules and for altering existing rules. When a question arose with reference to Rr. 179 and 180 of the previous Rules of Practice. Sadasiva Ayyar, J., in Viswanadhan Chetty v. Arunachalam Chetty(1) took the view that they were ultra vires under similar circumstances. As the question involved in this case affects the practice to be followed in the whole Presidency, I think it is desirable that this matter should be disposed of by a Bench. I accordingly refer this case to a Bench.
This case having been referred to a Bench and coming on for hearing on Monday the 1st February 1937 and the case having stood for consideration till Monday the 8th day of February 1937 the Court (Beasley, C.J, and Venkataramana Rao J.) made the following
ORDER OF REFERENCE
The question raised in this revision petition relates to the validity of certain Civil Rules of Practice made under the Code of Civil Procedure, 1882, but not re-enacted in accordance with the procedure laid down in Chap. X of the Code of 1908, and which are inconsistent with the rules in the First Schedule of the latter Code. The relevant provision on this matter is S. 157 of the Code of 1908 in and by which the rules framed under the Code of 1882. “So far as they are consistent with this Code (1908), have the same force and effect as if they had been made under this Code and by the authority empowered thereby in such behalf.” In Re The District Munsif of Tiruvallur(2) a Full Bench had to consider this question. The particular matter for consideration before them was whether the rules made by the Local Government under S. 269 of the Code of 1882, though inconsistent with O. 21, R. 43 of the Code of 1908 have any legal effect. They were of the opinion that the said rules not being inconsistent with the Code, as distinguished from the orders in the First Schedule to the Code, were in force. The learned Judges seem to interpret “the code” in S. 157 as meaning “the body of the Code.” It is desirable to point out that “Code” has been defined in S. 2 as including rules; and S. 121 enacts “that the rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of this part.” (Part X). The legislature, when it desires to draw a distinction between the body of the Code and the rules in the First Schedule expressly makes mention of the “body of the Code” (See Ss. 121 and 128). In the Full Bench decision there is no discussion of the provisions of the new Code here adverted to by us, and the learned Chief Justice who delivered the leading judgment observed that the point was not free from doubt. Since this decision, whenever the question came up for decision learned Judges who had to deal with it expressed a contrary view. In Viswanadhan Chetty v. Arunachalam Chetty Sadasiva Ayyar, J., observed that the Rr. 179 and 180 of the Civil Rules of Practice which were found inconsistent with the rules of the First Schedule were ultra vires “as not having been framed in the manner and by the authority prescribed by the new Code for the making of valid new rules and for altering existing rules.” These have been since re-enacted in accordance with the procedure prescribed by the new Code. In Immidisetti Dhanaraju v. Motilal Daga, J. held that R. 184 of the Civil Rules of Practice was ultra vires as being inconsistent with O. 21, R. 53 Civil Procedure Code. We may here mention that in Venkataswami v. Venkataramana Rao a Division Bench (Madhavan Nair and Cornish, JJ.) was of the opinion that R. 184 would be ultra vires but for S. 51 of the Code. In a recent decision reported in Murugappa Chettiar v. Ramasami Chettiar(3) Venkatasubba Rao, J., held that R. 199 of the Civil Rules of Practice to the extent to which it is opposed to and inconsistent with the provisions of the First Schedule, cannot take effect. He was of the opinion that Re The District Munsif of Tiruvallur(4) did not lay down any general rule. It seems doubtful if Re The District Munsif of Tiruvallur can be distinguished on this ground. As the matter is one of considerable importance, affecting as it does the practice in the Presidency and we feel doubts as to the correctness of the decision in Re The District Munsif of Tiruvallur we refer for the decision of a Full Bench the following question:
“Are Civil Rules of Practice made under the Code of 1882 but not re-enacted and published in accordance with the procedure prescribed in Part X of the Code of 1908 and inconsistent with any of the rules of the First Schedule of the latter Code valid and have they any legal effect?”
This petition coming on for hearing on Monday the 3rd January 1938, in pursuance of the aforesaid order of Reference to a Full Bench, and the case having stood over for consideration till Monday the 10th day of January 1938, the Court (The Chief Justice, and Madhavan Nair, Varadachariar, Lakshmana Rao and Stodart JJ.), expressed the following:
OPINION
(The opinion of the Court was expressed by The Chief Justice)
The petitioner filed a suit in the Court of the District Munsif of Dharmapuri for the taking of accounts of a partnership A preliminary decree was passed on the 9th of October 1933 and the District Munsif appointed a Commissioner to take the accounts. The plaint contained no allegation of irregularity or fraud, but during the taking of the accounts the petitioner wished to urge that certain transactions had been suppressed by the respondent and consequently asked that these matters should be inquired into. On objection being raised to this course the petitioner applied to the Court for an order directing the Commissioner to inquire into the alleged irregularities. By an order dated the 10th of February 1934 the District Munsif held that it was beyond the province of the Commissioner or the Court to embark on an inquiry into these allegations. He considered that it was then too late. The petitioner had had an opportunity of inspecting the accounts and as no objection had been raised before the passing of the preliminary decree the petitioner must be deemed to have waived all objection. The petitioner thereupon applied to this Court for revision of the Order. The matter came before Beasley, C.J and Venkataramana Rao, J. on the 8th February, 1937. Feeling some doubt as to the correctness of the decision of the Full Bench of this Court in Re District Munsif of Tiruvallur the following question was referred to a Full Bench of five Judges:
“Are Civil Rules of Practice made under the Code of 1882 but not re-enacted and published in accordance with the procedure prescribed in Part X of the Code of 1908 and inconsistent with any of the rules of the First Schedule of the latter Code valid and have they any legal effect.”
The Court as now constituted is called upon to give the answer.
The Civil Rules of Practice relating to suits for the dissolution of partnership and the taking of accounts are inconsistent with O. 20, R. 17, of the Code of Civil Procedure and it is this fact which has given rise to the question now under discussion. The Civil Rules of Practice require questions of irregularity or fraud to be raised and determined before the case is remitted to the Commissioner for the taking of the accounts. O. 20, R. 17, of the Code of Civil Procedure, however, states that the Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised. Therefore the Code allows questions of irregularity and fraud to be raised before the Commissioner if the Court considers that this should be done. It is to be observed that the Civil Rules of Practice were framed under the Code of 1882, which did not contemplate a preliminary decree in a partnership suit.
In order to answer the question referred it is necessary to examine certain provisions of the Code of 1908. S. 2(1) makes it clear that the Code, includes the rules in the First Schedule. Therefore O. 20, R. 17, is as much a part of the Code as the sections forming the body of the Act. S. 121 states that the rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part X, which comprises Ss. 121 to 131. Under S. 122, High Courts established under the Indian High Court Act, 1861, or the Government of India Act, 1915, may, from time to time, after previous publication, make rules regulating their own procedure, and the procedure of Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. S. 123 gives power to constitute a Rule Committee of the High Court and states how the Committee shall be composed. S. 124 requires the Committee to report to the High Court on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules and states that before making any rules under S. 122 the High Court shall take such report into consideration. S. 126 says that the rules made under Part X shall be subject to the previous approval of the authority prescribed by the proviso to S. 107 of the Government of India Act, 1915. So far as this Court is concerned, the authority is the local Government. S. 127 provides that the rules so made and approved shall be published in the Gazette of India or in the local Official Gazette, as the case may be, and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.
Section 157 stipulates that the rules made under the Code 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, but such rules must not be inconsistent with the new Code. If they are inconsistent, the old rules cease to have validity. When 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 Chap. X. No steps were taken under this Chapter and the validity of the present rules therefore depends entirely on the provisions of S. 157. As that section limits the validity of the old rules to such rules as are consistent with the present Code, it follows that rules which insist on questions of irregularity and fraud being decided before the preliminary decree is passed in a partnership suit are invalid.
As I have indicated, this reference has been necessitated as the result of the decision in Re District Munsif of Tiruvallur. That case was decided by Arnold White, C.J and Munro and Sankaran Nair, JJ. The question there was whether the rules made by Government under S. 269 of the Code of 1882 remained in force until rules were framed by the High Court under the new Code, though they might be inconsistent with O. 21, R. 43 of the new Code. The Court held that they did remain in force; and the reasoning given can be gathered from the following passage in the judgment of the learned Chief Justice at page 20 of the report:—
“There is nothing in the Code of 1908, as distinguished from the orders in the First Schedule to the Code, which is inconsistent with the rules issued under S. 269 though there is an inconsistency between the rules and O. 21, R. 43. But the High Court has power to alter the rules in the First Schedule. This being so, I do not think it follows that, because the rules made under the old section are inconsistent with the rules in the schedule, they are not consistent with this Code within the meaning of S. 157.
The point is not free from doubt, but until rules are made by the High Court, I think the rules made by Government under S. 269 of the old Code are in force,
“S. 157 is an enabling, not a repealing section. The rules have never been expressly repealed and I do not think we are bound to hold they are implicitly repealed by virtue of the words “so far as they are consistent with this Code”, which occur in S. 157.”
The learned Judges obviously overlooked the fact that by virtue of S. 2(1) the rules in the First Schedule of the Code of 1908 are as much a part of the Code as the sections themselves and it follows that if there is inconsistency between the old rules and the rules of the new Code the old rules must go.
It is not necessary to refer in detail to the other cases mentioned in the Order of Reference. They have been sufficiently dealt with there. It is quite clear that Re The District Munsif of Tiruvallur was wrongly decided and must be over-ruled. We accordingly answer the question referred in this way: The Civil Rules of Practice made under the Code of 1882, but not re-enacted and published in accordance with the procedure prescribed in Part X of the Code of 1908 are invalid if and in so far as they are inconsistent with any of the rules of the First Schedule of the latter Code.
This Civil Revision Petition coming on for final hearing this day after the expression of the aforesaid opinion of the Full Bench, the Court The Chief Justice and Lakshmana Rao, J. delivered the following:
JUDGMENT
The application for revision will be granted and the case remitted to the District Munsif to be dealt with in the light of the judgment of the Full Bench in this case. There will be no order as to costs.
Petition allowed.
N.R.R