http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: GANPAT GIRI

       Vs.

RESPONDENT: IIND ADDITIONAL DISTRICT JUDGE,BALIA & ORS.

DATE OF JUDGMENT07/01/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1986 AIR  589            1986 SCR  (1)  15  1986 SCC  (1) 615        1986 SCALE  (1)21

ACT:      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 Procedure (Amendment) Act, 1976.

HEADNOTE:      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 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 other  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 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 such permission had also been taken away.      By the  Amending  Act,  1976  several  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  Legislatures or  by  the  High  Courts,  the  Law Commission recommended  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 16 in sub-rule (3) of Rule 72-A. Hence, even though Rule 72 was not amended  by the  Amending Act, its retention in the form in which  it was in the code had been recommended by the Law Commission. Section  97(1) of the Amending Act provides that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

"any amendment  made,  or  any  provision  inserted  in  the principal Act  by a 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."      Respondent No.3 obtained a decree for recovery of money on July  29, 1977 against the appellant. In execution of the said  decree,  the  immoveable  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,  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 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 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 allowed the  Writ Petition  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, ^      HELD: 1.  The High  Court was  in error in holding that the amended  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 under  sub-rule (3)  of Rule 72. Therefore, the order passed  by the  High Court  is set aside and the order passed by the 17 District Judge affirming the order of the executing court is restored. [24 C; 24 F]      2.1 The  object of  section  97  of  the  Amending  Act appears to  be that on and after February 1, 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 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 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 modified by  the Amending  Act and  that was subject only to what was  found in  sub-section (2) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

to all  proceedings referred  to  therein  subject  to  sub- section (2) of section 97. [23 G-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 18 of 1986.      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.      Sunil K. Jain for the Respondents.      The Judgment 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 any provision  inserted in the Code of Civil Procedure, 1908 (hereinafter  referred   to  as   ’the  Code’)  by  a  State Legislature or a High Court prior to the commencement of the Amending Act,  i.e.,  prior  to  February  1,  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 Act. 18      Section 97(1) of the Amending Act reads thus:-           "any amendment  made, or any provision inserted in           the principal Act by a 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 is  however subject to sub-section (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 generality  of the provisions of section 6 of the  General Clauses Act, 1897, the provisions in clauses (a) to  (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  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.      The principal  Act referred  to in  section 97  is  the Code. By  the Amending  Act several  amendments were carried out to  the 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 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  High Courts to make rules regulating

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

the   procedure   of   civil   courts   subject   to   their superintendence  as  well  as  rules  regulating  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 19 the Code  which is overlapping on section 122 of the Code to some extent  confers 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 provisions of the Code and the  First   Schedule  had   been  amended   by  the   State Legislatures or  the High Courts as the case may be and such amended provisions  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-sections  in  section  97  of  the Amending Act.  A reading  of section  97 of the Amending Act shows that  it deals  with the 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 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  provisions of  the Code as amended by the Amending Act stands  repealed. It  means that  any local amendment of the Code  which is  inconsistent with the Code as amended by the  Amending  Act  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 that  on and  after February 1, 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 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. We are emphasising 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,  1985 in  Civil Miscellaneous  Writ Petition No.  2754 of  1981 on the file of the High Court of Allahabad. 20      Jamuna Chaubey,  respondent No.  3  herein  obtained  a decree for  recovery of  money of  July 29, 1977 against the appellant Ganpat  Giri in  Original Suit  No. 359 of 1973 on the 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, 1978  the appellant  filed 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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 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 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 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 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 commencement of  the Amending Act by virtue of section 97(1) thereof the  local amendment made to 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 prior to the commencement of the Amending Act remained intact. 21 The High  Court did  not say  anything on  the  question  of 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 the order of the High Court is questioned.      For purposes  of ready reference Rule 72 of Order 21 as it 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 as 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           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 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,           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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

         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 expense           attending it, shall be paid by the decree-holder."           "Order 21  Rule 72 as it was in force in the State           of Uttar  Pradesh prior to the commencement of the           Amending Act.           Where a decree-holder purchases the property sold,           the purchase  money and  the  amount  due  on  the           decree may,  subject to  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." 22 The difference  between the  Code and  the rule as it was in force in State of Uttar Pradesh prior to the commencement 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 "with such permission" the words  "the property  sold" had  been  substituted.  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  such permission  had also  been taken away.      The question  whether Rule  72 of  Order 21 of the Code required  any   modification  was   considered  by  the  Law Commission 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           recommendation had  been made  in  the  Fourteenth           Report to  the effect, that a decree-holder should           be allowed  to purchase  property unless the court           has prohibited  him from  doing so.  The object of           the recommendation  was to avoid the delay that is           frequently caused  when the  warrant  of  sale  is           returned unexecuted  in the absence of bidders. An           amendment carrying  out  this  recommendation  was           proposed in the draft Report on the Code which had           been  circulated.   Comments   received   thereon,           however, emphasised  the need  for the court being           aware of any proposal by the decree holder to bid.           The earlier  Commission  thought  that  there  was           force 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           earlier Report  on the  Code was correct. Hence no           change is recommended.           Order 21, rule 72 23           21. 36-A.  We have considered the more fundamental           question if rule 72 should be retained at all. The           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) prospective  purchasers. Ordinarily,  the           fetching of  a higher  purchase price  would be in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

         his interest  (as  likely  to  satisfy  his  claim           without further  execution). 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, 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           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 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 in holding that because no amendment had been  made to Rule 72 by the Amending Act, section 97(1) 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 Amending Act stood  repealed   irrespective  of   the  fact  whether  the corresponding 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 24 (2) the  provisions of  the Code  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   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-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.      The High  Court was  therefore in error in holding that the amended  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 under sub-rule (3) of Rule 72.      We do  not in  the circumstances  of the  case find any merit 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

below have  not found it proper to reject the application on that ground.      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 us in this case at our request as amicus curiae. M.L.A.                                  Appeal allowed. 25