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MR.JUSTICE N. SATHISH KUMAR A.S.No.586 of 2025 and CMP.No.10580 of 2025 Prema … Appellant

by Sekar Reporter · April 30, 2025

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N Sathis Kumar judge order

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 29.04.2025

CORAM:

THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

A.S.No.586 of 2025 and CMP.No.10580 of 2025

Prema … Appellant

Versus

Nallasellam … Respondent

Prayer: Appeal filed under Section 96 of Code of Civil Procedure, to set aside the preliminary judgment and decree dated 26.06.2024 in O.S.No.56 of 2022 on the file of Principal District Court, Perambalur.

For Appellant : Mr.R.Venkatesulu

Assistance rendered by : Mr.N.Manoharan

ORDER

Heard the learned counsel appearing for the appellant.

According to the learned counsel appearing for the appellant, except Item

No.2 and part of Item No.3, he has no other grievance in respect of other properties. It is his contention that the Item No.2 is the separate property of his mother. Similarly, Item No.3, in respect of 72 cents, preliminary decree ought not to have been granted.

Taking note of the above submissions, this appeal is admitted for the above limited purpose.
Notice to the respondent returnable by 23.06.2025. Private notice is also permitted.
In the meanwhile, the registry is directed to call for the records from the trial Court.
Till such time, passing of final decree alone is stayed.
An attention of this Court has been drawn to a decision of a Hon’ble Division Bench of this Court in the case of V.S.Chandrasekaran vs. R.Uma in A.S(MD).No. 5 of 2025 dated 25.04.2025, wherein, esteemed Brother Judge, Mr.

Justice G.R.Swaminathan, who authored the judgment after referring to

Karupuchetty’s case has observed as follows:

“The Hon’ble Judge after citing quite a few decisions of the Hon’ble

Supreme Court (U.P.Avas Evam Vikas Parishad vs. Sheo Narain

Kushwaha (2011) 6 SCC 456, Salem Advocate Bar Association, Tamil

Nadu vs. Union of India (2005) 6 SCC 344 and Mahadev Govind Gharge vs. Special Land Acquisition (2011) 6 SCC 321) rightly concludes that the aforesaid amendment had taken away the right of automatic admission and that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. No exception can be taken to this conclusion and the approach is, if we may say with respect, well-founded. But that would be the position only if the procedure regarding admission of first appeals filed under

Section 96 of CPC is governed by Order 41 of CPC alone.”

From the above, it is clear that the Hon’ble Division Bench did not take exception to the conclusion that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. My humble view is that right of appeal emanates from the substantive provision of Code, i.e., Section 96 of

Code of Civil Procedure and not under Order II Rule 3 of the Appellate Side Rules, Madras High Court. The Division Bench, thereafter, extracted Order II of the

Appellate Side Rules in its entirety and has observed as follows:

“Obviously, there is an inconsistency between Order 41 Rules 9 and 11 of CPC as interpreted by the Hon’ble Supreme Court and Order II Rules 1 to 3 of the Appellate Side Rules of the Madras High Court.

His Lordship Mr.Justice N.Sathish Kumar is of the view that since the Appellate Side Rules were framed prior to the 1999 amendments to Order 41 of CPC, they have to give way. We respectfully disagree with the said view.”

This Court in the case of Karupuchetty @ Vaiyapuri (Died) v Papathi vide order dated 07.03.2025made in A.S.No.148 of 2025 had examined the issue as to whether a first appeal under Section 96 of Code of Civil Procedure, 1908 was to be admitted automatically or whether the appeal ought to be listed for preliminary hearing for admission under Order XLI Rule 11. This Court took note of amendment to Order XLI Rule 9 and 11 by virtueof Act 46 of 1999 and found that the amended Order XLI Rule 11 did not require the Court to send for the record for the purposes of considering the appeal for admission/preliminary hearing. Therefore held that the old practice of the appeal being admitted by the Deputy Registrar under Rule 216 of the Standing Order cannot continue since the amended Order XLI Rule 9 did not require the Registrar to send for the record before the matter was placed before the Court under Order XLI Rule 11. In simpler terms, the ministerial power of the Registrar under the Standing Order 216 to admit the appeal and call for the records was no longer necessary in view of the amendments to Order XLI Rule 11.
In such view of the matter, this Court, after considering the judgments ofthe Supreme Court and other Hon’ble High Courts had observed as follows:

“On circumspection of the overall parameters discussed hereinabove, coupled with various judgments of High Courts and Supreme Court, it is amply clear that appeals should be posted before the Judge for admission. Thus, in view of the amendment to Order XLI Rule 11, all First Appeals shall be hereafter posted before the concerned Court for admission and it is for the Judge to decide whether the appeal requires to be admitted or there is no merit in the appeal, as the existing Rules or Standing Orders, which are inconsistent with the substantive provisions of the CPC, will not empower the Deputy Registrar of the Registry to number the appeal and call for records.”

With great respect to the Division Bench, the Court has closely read

Order XLI Rule 9 and Rule 11 of CPC and Order II Rules 1 to 3 of the Appellate

Side Rules and is unable to find any inconsistency as perceived by the Hon’ble Judges. Since the Division Bench has not pointed out what is the obvious inconsistency this Court must necessarily examine the provisions of law to find out if there is any inconsistency. Order XLI Rule 9, after the 1999 Amendment, reads as follows:

“9. Registry of memorandum of appeal (1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.”

Power to dismiss appeal without sending notice to Lower Court(1) The appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.

If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.”
Order II Rule 1 of the Appellate Side Rules reads as follows:

“The power and authority which under these or other rules or the practice of the Court are exercisable by the Registrar may be exercised by the Deputy Registrar or the Assistant Registrar of the Appellate Side or such other officers as the Chief Justice may specify. The Chief Justice may, by general or special order, specify the power and authority exercisable by such officers.”

A reading of the above rule indicate that it permits general delegation of powers of the Registrar under Order II of the A.S Rules to the Deputy Registrar or Assistant Registrar of the Appellate Side or such other officers as the Chief Justice may specify. This Court is unable to understand as to how this Order II Rule 1 conflicts with Order XLI Rule 9 which deals with the maintenance of a Book called the “Register of Appeal.” It is also not in conflict with Order XLI Rule 11 since that Rule deals with a preliminary hearing of the First Appeal, and has nothing to do with general delegation of powers which is covered by Order II Rule 1. Order II Rule 1 permits delegation of the powers of the Registrar, and not the delegation of the power of the appellate court to admit an appeal under Order XLI Rule 11 to the Deputy Registrar.
Order II Rule 2 of the A.S Rules, it reads as follows:

“Where any duty to be discharged under these rules or any enactment or any rules made thereunder is a duty which has heretofore been discharged by any officer, such duty shall, unless or until otherwise ordered, continue to be discharged by the same officer or by such other officer as the Chief Justice may by order direct. Where any new duty is to be discharged; the proper officer to discharge the same shall be such officer as Chief Justice may from time to time appoint.”

This rule deals with discharge of certain duties which were being performed by certain officers and provides for continuation of the same. This Court is unable to find any inconsistency between this Rule and Order XLI Rule 9 which deals which deals with the maintenance of a Book called the “Register of Appeal.” It is also not in conflict with Order XLI Rule 11 since that Rule deals with a preliminary hearing of the First Appeal. The power to hold a preliminary hearing under Order XLI Rule 11 is with the first appellate court and not with the Registrar/Deputy Registrar or Assistant Registrar as held in Mahadev Govind

Gharge v. LAO, (2011) 6 SCC 321 and Chetia v Jogadish Bhuyan, (2005) 6 SCC

81.

First and foremost, we must explain what is meant by “hearing the appeal”. Hearing of the appeal can be classified in two different stages; one at the admission stage and the other at the final stage. Date of hearing has normally been defined as the date on which the court applies its mind to the merits of the case. If the appeal is heard ex parte for admission under Order 41 Rule 11 of the Code, the court could dismiss it at that very stage or admit the same for regular hearing. Such appeal could be heard in the presence of the other party at the admission stage itself, particularly, in cases where a caveat is lodged by the respondent to the appeal.
The concept of “hearing by the court”, in fact, has common application both under civil and criminal jurisprudence. Even in a criminal matter the hearing of the case is said to be commenced by the court only when it applies its mind to frame a charge, etc. Similarly, under civil law also it is only when the court actually applies its mind to averments made by the party/parties, can it be considered as hearing of the case.
Order II Rule 3, only Rule 3(i)(a) deals with first appeals ie., appealsunder Section 96 against original decrees of subordinate courts. It states that in appeals against original decrees of subordinate courts, the Registrar shall issue notice forthwith. There is no inconsistency between Order II Rule 3(i)(a) and Order XLI Rule 9 which deals with the maintenance of a Book called the “Register of Appeal.” It is also not in conflict with Order XLI Rule 11 (1) since the preliminary hearing contemplated under that Rule is a judicial function which can be performed only by the “Appellate Court”. Order XLI Rule 11 requires the appellate court to fix a day and hear the appellant or his pleader. In Chetia v Jogadish

Bhuyan, (2005) 6 SCC 81, the Hon’ble Supreme Court has held as follows:

“A first appeal is generally open for hearing on questions of law and fact, both, and the appellate court possesses power to make all such orders as the original court could have made. The discretion conferred on the appellate court to dismiss the appeal at its threshold is a judicial discretion and cannot be exercised arbitrarily or by whim or fancy.”

As discussed above, before the 1999 Amendment in CPC, Rule 216 of the Standing Orders required the first appeal to be posted before the Deputy

Registrar to admit the appeal as a matter of course. By admitting the appeal, the

Deputy Registrar would send for the records for the purpose of placing them before Court under Order XLI Rule 11. Order II Rule 3(i)(a) required the Registrar to send notice to the appellant. This notice is to notify him of the date fixed under Order XLI Rule 11 for hearing him or his pleader. Thus, the powers conferred on the Registrar under these provisions up to this stage were clearly ministerial or administrative in character. Once the records were before the Court pursuant to Rule 216 of the Standing Orders and the appellant and his pleader were present after notice under Order II Rule 3(i)(a), the role of the Court begins. The first appellate court would apply its judicial mind to examine the merits to see whether the appeal should be summarily dismissed under Order XLI Rule 11 if it is devoid of merits, or whether a date should be fixed under Order XLI Rule 12 for hearing the appeal on merits at length. There cannot be any inconsistency between Order XLI Rule 11 which contemplates the exercise of judicial functions by the appellate court and Order II Rule 3 which contemplates the exercise of ministerial or administrative functions by the Registrar.

In Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81, the Hon’ble Supreme Court has observed that the Order XLI Rule 11 stage is called the “motion hearing” or “hearing on admission” or “preliminary hearing”. The relevant extracts are as follows:

The word “appeal” is not found defined either in the Act or in the Code of Civil Procedure, 1908 (hereinafter “the Code” for short). In its natural and ordinary meaning an appeal is a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. The right of appeal is a substantive and valuable right of any appellant who is normally a person aggrieved by the impugned decision.According to sub-rule (1) of Rule 11 of Order 41 of the Code, the appellate court may, after sending for therecord, if it thinks fit to do so and after appointing a day for hearing the appellant, dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent. Though the court does not assign a particular name to the proceedings held on such a date of hearing or such a step in the procedure of hearing the appeal, in judicial circles, it is generally called a “motion hearing” or “hearing on admission” or “preliminary hearing”. Ordinarily a court of appeal, and specially a court of first appeal, would prefer to have the records of the lower court before it. But it is not always necessary. An appeal may raise a question of law alone and the appellate court may form an opinion at the preliminary hearing whether the appeal deserves to be heard bi parte on that question of law without sending for the record of the lower court. A first appeal is generally open for hearing on questions of law and fact, both, and the appellate court possesses power to make all such orders as the original court could have made. The discretion conferred on the appellate court to dismiss the appeal at its threshold is a judicial discretion and cannot be exercised arbitrarily or by whim or fancy. The appellate courts exercise the discretion in favour of summary dismissal sparingly and only by way of exception. However, that does not tantamount to saying that the appellate court does not possess the power to dismiss an appeal summarily and at the threshold. Such power to summarily dismiss can be exercised, depending on the facts and circumstances of a given case, before issuing notice to the respondent and even before sending for the record of the inferior forum.”

In the above decision, the Supreme Court has approved the following observations of the Bombay High Court in S.P. Khanna’s case, 1976 Tax LR 1740 (Bom),

“In the constitution of such appeal and its procedure, the stage of admission, like the one of final hearing after issue of notice, appears to us as inherent. Matters are placed for admission with a view to enable the Court to apply its mind to controversy and to find out whether the order questioned calls for reconsideration by the higher court. This is usually done by giving hearing to the party-appellant. It is implicit that at that stage the Court may adjudicate by finding against the petitioning appellant and upholding the order impugned. Such adjudication at the stage of admission of appeal is part of the jurisdiction of the appellate court and we have doubt whether that jurisdiction could be affected if it is explicitly granted by the statute by framing a rule of procedure. Placing the matters for admission before the Court are not mere matters of procedure but also involve exercise of judicial authority by the appellate court. Normally if the authority is conferred by the statute, we would be loath to hold that its effectiveness would stand curtailed by any procedural rule disabling the Court, of its power of hearing the appeal and pronouncing at the stage of admission about the merits of the appeal by finding out whether the same deserves further consideration by the Court.

All this process involved in ‘admission’ has clear juridical efficacy and recognition. It subserves the dynamics to have a speedy and sure disposal of matters brought before the higher forums in the judicial hierarchy. The Code of Civil Procedure permits expressly the rejection of appeals at admission stage by enacting provision like Order 41 Rule 11 CPC. Even without such a provision, we would think that it would be inbuilt (sic) (inbred) in the appellate jurisdiction enabling the Court to hear the appellant as to the matter brought before it and reject the appeal which may prima facie have no merit or may suffer from the defects of untenability, limitation as well of incompetency. This stage, which is treated as admission stage of an appeal, appears to protect the litigation from waste of costs as well of public and private time. That can effectively check meritless and vexatious litigations. All these considerations must be kept in view while considering the form of appeal provided by statute. Provisions of Section 483 and the appeal thereunder cannot be treated as an exception and as erasing out all these juridical as well as judicious considerations inherent in the admission stage of an appeal. We can well observe that the stage of admission of appeals in company matters is neither superfluous nor unnecessary. In fact that posits serious exercise of appellate authority full of judicial consequences. Unless there is something expressly dispensing with that stage, it would be neither just nor proper to hold that in the appeals under Section 483 there cannot be a hearing at the admission stage. We have already indicated that what was observed in Golcha case [(1970) 3 SCC 65 : AIR 1970 SC 1350] was with reference to the rule of this Court and nothing more. That observation cannot further be strained or logically extended as laying down that in an appeal under Section 483 of the Act the appellate court is powerless at the stage of admission to find out the merit of the appeal or is disabled from rejecting it though it may be worthless. It is well settled that possible logical extensions from the ratio of a judgment surely are not part of the ratio itself and it is hazardous to apply precedents in that manner.”

From the above dictum, it is clear that the Order XLI Rule 11 stage is known as the stage of admission hearing or preliminary hearing where the Court performs a judicial function by applying its mind to the merits of the appeal.
It is to be noted that the Hon’ble Division Bench in paragraph 14 of its judgment has clearly noted that when the earlier Rules were repealed in the year 1965, the power of Registrar to admit has taken away and the word ‘admit’ is consciously absent. However, the Hon’ble Division Bench did not propose to go into the issue if the Registrar retains the power to admit the appeals filed under Section 96 of Code of Civil Procedure. Therefore, when the 1965 Rules itself has taken away the word ‘admit’, the Registrar cannot exercise power of the Court to admit appeal.
It is well settled that a judicial function of the Court cannot be delegated. The Court may delegate its ministerial functions to its Officers which it has done through the Appellate Side Rules. In Jamal Uddin Ahmad v. Abu Saleh Najmuddin, (2003) 4 SCC 257, the nature of a judicial function was explained, and it was held that the same is inalienable. It was held:

“The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.

“The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges.”

In other words, the power to hold an admission hearing under Order XLI Rule 11 requires the first appellate Court to apply its mind to the merits of the case. It is unquestionably a judicial function and is inalienable and cannot be delegated to a Deputy Registrar. In the above judgment, the Hon’ble Supreme Court has explained the distinction between judicial and ministerial or administrative functions as follows:

“The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorization. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be “delegation” as also there can be “authorization” in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions postdecision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength. The Judges rarely receive personally any document required to be presented to the Court. Plaints, petitions, memoranda or other documents required to be presented to the Court are invariably received by the administrative or ministerial staff, who would also carry out a preliminary scrutiny of such documents so as to find that they are in order and then make the documents presentable to the Judge, so that the valuable time of the Judge is not wasted over such matters as do not need to be dealt with personally by the Judge.”

An admission hearing under Order XLI Rule 11 being a judicial functioncannot be delegated. The powers delegated under the Appellate Side Rules is to “aid the Judges in discharge of their judicial functioning” and not to usurp them.
The Hon’ble Division Bench has also relied upon Section 122 CPC and the decision of the Hon’ble Supreme Court in Malthesh Gudda Pooja v. State of

Karnataka, (2011) 15 SCC 330. Sections 121 and 122 read as follows:

“121. Effect of rules in First Schedule —The rules in a 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.”

Power of certain High Courts to make rules —[High Courts [not being the Court of a Judicial Commissioner] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.”

A combined reading of the two provisions would show that the Rules in the Code will operate by default, and that the High Court is empowered to “annul, alter or add” to any of the Rules in the First Schedule to the Code. In Malthesh Gudda Pooja v. State of Karnataka, (2011) 15 SCC 330, the Hon’ble Supreme

Court was considering a case where the provisions of Order 47 Rule 5 which was enacted in 1908 was subsequently altered by Rule 5 of the Karnataka High Court

Rules, 1959. In other words, the Karnataka Rules were subsequently enacted under Section 122 which had the effect of altering Rules in the Code. The observations made in the said judgment were in the context of the aforesaid facts, whereas, situation in Madras High Court is totally different and is converse. The Code of Civil Procedure has been amended in 1999 after the Appellate Side Rules of 1965 and Order XLI Rule 9 and 11 of CPC have been substituted in the body of the

Code much after the Appellate Side Rules. Going by Section 121, the Rules in the CPC these rules will have effect until annulled or altered in a manner contemplated by Section 122. The amended Order XLI Rule 9 and 11 cannot be added, varied or altered by the A.S Rules which existed prior to its enactment.

Therefore, with all due respect to the Hon’ble Division Bench, the decision in Malthesh Gudda Pooja v. State of Karnataka, (2011) 15 SCC 330, may not have any application in this fact situation. In any event, as shown above, there is absolutely no inconsistency leave alone any obvious inconsistency between Order XLI Rule 9 and 11 and Order II Rule 1-3 of the A.S Rules.
The conclusion of the Hon’ble Division Bench that Order XLI Rule 9 &

11 are inconsistent with Order II Rules 1-3 of the A.S Rules and that by virtue of

Section 122 the latter prevails over the former will lead to a very strange situation. There is no provision in the Appellate Side Rules providing for a preliminary hearing of an appeal. If Order XLI Rule 11 is held inapplicable by virtue of Section 122 as held by the Hon’ble Division Bench, the dangerous consequence is that there will not be any preliminary hearing of any first appeal and that all appeals must be listed only for hearing under Order XLI Rule 12. Order XLI Rule 12 is as follows:

“12. Day for hearing appeal.—(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal. Such day shall be fixed with reference to the current business of the Court.”

If Order XLI Rule 11 is not applicable to first appeals in the Madras High Court, a part of Order XLI Rule 12 would also become otiose. No appeal can be dismissed in limine as there is no preliminary hearing at all contemplated by the A.S Rules and all appeals would be posted only for final hearing. This interpretation, with all due respect, is completely untenable and would make the very amendment in CPC of year 1999 inoperative.
- It is relevant to extract the Repeal and Savings under Chapter 4 of the

Civil Procedure Code (Amendment) Act, 1999 (Act 46 of 1999)

CHAPTER 4 – REPEAL AND SAVINGS

Repeal and savings.-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),-

the provisions of Section 26 of the principal Act and of Order IV of the First Schedule, as amended by Sections 2 and 14 of this Act, shall not apply to or affect any suit pending immediately before the commencement of Sections 2 and 14; and every such suit shall be tried as if Sections 2 and 14 had not come into force;
the provisions of Section 27 of the principal Act, as amended by Section 3 of this Act, shall not apply to or affect any suit pending immediately before the commencement of Section 3 and every such suit shall be tried as if Section 3 had not come into force;
the provisions of Section 58 of the principal Act, as amended by Section 5 of this Act, shall not apply to or affect any person detained in the civil prison in execution of a decree before the commencement of Section 5;
the provisions of Section 60 of the principal Act, as amended by Section 6 of this Act, shall not exempt salary from attachment to the extent mentioned in clause (i) of the first proviso to sub-section (1) of Section 60 before the commencement of Section 6;
Section 89 and Rules 1-A, 1-B and 1-C of Order X of the First

Schedule, as inserted in the principal Act by Sections 7 and 20 of this

Act, shall not affect any suit in which issues have been settled before

the commencement of Section 7; and every such suit shall be dealt with as if Sections 7 and 20 had not come into force;

the provisions of Section 96 of the principal Act, as amended by Section 9 of this Act, shall not apply to or affect any appeal from original decree which had been admitted before the commencement of Section 9; and every admitted appeal shall be dealt with as if Section 9 had not come into force;
the provisions of Section 100-A of the principal Act, as substituted by Section 10 of this Act, shall not apply to or affect any appeal against the decision of a Single Judge of a High Court under Article 226 or Article 227 of the Constitution which had been admitted before the commencement of Section 10; and every such admitted appeal shall be disposed of as if Section 10 had not come into force;
the provisions of Section 102 of the principal Act, as substituted by Section 11 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 11; and every such appeal shall be disposed of as if Section 11 had not come into force;
the provisions of Section 115 of the principal Act, as amended by Section 12 of this Act, shall not apply to or affect any proceeding for revision which had been finally disposed of;
the provisions of Rules 1, 2, 6, 7, 9, 9-A, 19-A, 21, 24 and 25 of Order V of the First Schedule as amended or, as the case may be, inserted or omitted by Section 15 of this Act shall not apply to any summons issued immediately before the commencement of Section 15;
the provisions of Rules 9, 11, 14, 15 and 18 of Order VII of the First Schedule, as amended or, as the case may be, substituted or amended by Section 17 of this Act, shall not apply to in respect of any proceedings pending before the commencement of Section 17;
the provisions of Rules 1 and 1-A of Order VIII of the First Schedule, as substituted or inserted by Section 18 of this Act, shall not apply to a written statement filed and presented before the court immediately before the commencement of Section 18;
the provisions of Rules 2 and 5 of Order IX of the First Schedule,as amended by Section 19 of this Act, shall not apply in respect of summons issued before the commencement of Section 19;
the provisions of Rules 2 and 15 of Order XI of the First Schedule, as amended by Section 21 of this Act, shall not apply to or affect any order passed by the court or any application submitted for inspection to the court before the commencement of Section 21 of this Act;
the provisions of Rules 2 and 4 of Order XII of the First Schedule, as amended and omitted, as the case may be, by Section 22 of this Act, shall not affect any notice given by the party or any order made by the court before the commencement of Section 22 of this Act;
the provisions of Rules 1 and 2 of Order XIII of the First Schedule, as substituted by Section 23 of this Act, shall not affect the documents produced by the parties or ordered by the Court to be produced before the commencement of Section 23 of this Act;
the provisions of Rules 4 and 5 of Order XIV of the First Schedule, as amended and omitted by Section 24 of this Act, shall not affect any order made by the court adjourning the framing of the issues and amending and striking out issues before the commencement of Section 24 of this Act;
the provisions of Rules 1 and 2 of Order XVI of the First Schedule, as amended by Section 25 of this Act, shall not affect any application made for summoning of witnesses and time granted to a party to deposit amount for summoning witnesses made by the court before the commencement of Section 25;
the provisions of Rule 1 of Order XVII of the First Schedule, as amended by Section 25 of this Act, shall not affect any adjournment granted by the court and any cost occasioned by the adjournment granted by the court before the commencement of Section 25 and the number of adjournments granted earlier shall not be counted for such purpose;
the provisions of Rules 1, 6-A and 6-B of Order XX of the First

Schedule, as amended and substituted by Section 28 of this Act, shall not affect any application for obtaining copy of decree for filing of

appeal made by a party and any appeal filed before the commencement of Section 28 of this Act; and every application made and every appeal filed before the commencement of Section 28 shall be dealt with as if Section 28 had not come into force;

in sub-rule (2) of Rule 1 of Order XXXIX of the First Schedule, as inserted by Section 30 of this Act, shall not affect any temporary injunction granted before the commencement of Section 30 of this Act;
the provisions of Rules 1, 9, 11, 12, 13, 15, 18, 19 and 22 of Order XLI of the First Schedule, as amended, substituted and omitted, as the case may be, by Clause 32 of the Bill shall not affect any appeal filed before the commencement of Section 32; and every appeal pending before the commencement of Section 32 shall be disposed of as if Section 32 of this Bill had not come into force.
- Clause (v) makes it clear that the provisions of Rules 1, 9, 11, 12, 13, 15, 18, 19 and 22 of Order XLI of the First Schedule, as amended, substituted and omitted, as the case may be, by Clause 32 of the Bill shall not affect any appeal filed before the commencement of Section 32. Therefore, the same makes it clear that any rule of the High Court previously enacted which is inconsistent with the amendment brought under Order XLI Rules 9 and 11 will automatically stand repealed by virtue of Repeal and Savings under Chapter 4 of the Civil Procedure

Code (Amendment) Act, 1999 (Act 46 of 1999).

Further, a Division Bench of this Court consisting of Hon’ble Mr.Justice

R.Subramanian and Hon’ble Mrs.Justice R.Kalaimathi in the case of

Gnanasoundari and others vs. G.Vijayakala and others reported in (2023) 6 MLJ 135 has elobarately dealt with regard to similar repeal and savings clause brought under Civil Procedure Code (Amendment) Act, 1976 (Act 104 of 1976), wherein, it was held as follows:

“23.The Constitution Bench of the Hon-ble Supreme Court in Pankajakshi (dead) through legal representatives and others vs. Chandrika and Others reported in (2016) 6 SCC 157 while concluding that the judgment of the Hon’ble Supreme Court in Kulwant Kaur Vs. Gurdial Singh Mann reported in (2001) 4 SCC 262 does not state the law correctly on the impact of Section 97(1) held that as follows:-

We are afraid that this judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court, the said section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression “principal Act” occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Schedule VII List III Entry 13 to the Constitution of India, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 Amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression “any provision inserted in the principal Act” by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may 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 any of the rules contained in the First Schedule to the Code of Civil Procedure.

24.Therefore, once it is found that the amendment introduced by the

State Legislature or the High Court in exercise of powers under Section 122 are shown to be an inconsistent with the provisions of the Principal Act as amended by Act 104 of 1976 and the same would stand repealed to the extent of the inconsistency. Since Section 97 of Act 104 of 1976 does not place any fetters on the power of the High

Courts under Section 122 to frame rules it would be open to the High Court to re-introduce the same provision by way of a subsequent amendment as was done by the Bombay High Court and such amendment, which is re-introduced would prevail within the State.”

Therefore, now the amendment brought under Order XLI Rule 11 makes it clear that the appellate Court is not required to call for the record before fixing a date to hear the appellant or his pleader under Order XLI Rule 11 (1). That apart, corresponding changes have been made in Order XLI Rule 9. Thus, the appeal must be posted before the Court under Order XLI Rule 11 for admission. If the appeal is not dismissed summarily, the appellate Court will fix a date under Order XLI Rule 12 for final hearing. Order II Rules 1 to 3 of the Rules of the High Court, Madras, Appellate Side 1965 is totally inconsistent with the amendment brought under the Code. Therefore, it stands repealed by virtue of Repeal and Savings under Chapter 4 of the Civil Procedure Code (Amendment) Act, 1999 (Act 46 of 1999). This also not been brought to the notice of the Hon’ble Division Bench.
- Further, the Division Bench has held that the existing practice of admission of first appeals under Section 96 shall continue and they need not be listed before the Court. It is well settled position of law that the power to hear appeals for admission under Order XLI Rule 11 is a judicial power as held by Chetia’s case and that judicial powers cannot be delegated as held by Jamal Uddin Ahmad’s case. Consequently, the Deputy Registrar who exercises only ministerial or administrative functions cannot exercise judicial powers under Order XLI Rule

Unfortunately, these two decisions and Repeal and Savings clause under Chapter 4 of the Civil Procedure Code (Amendment) Act, 1999 (Act 46 of 1999) were not brought to the notice of the Hon’ble Division Bench, though battery of learned senior counsels of eminence have assisted the Hon’ble Division Bench, I am sure that if the above decisions and Repeal and Savings clause under Chapter 4 of the Civil Procedure Code (Amendment) Act, 1999 (Act 46 of 1999) were brought to the notice of the Hon’ble Division Bench, certainly the Hon’ble Division Bench would not have taken a contrary view.
The position is also made clear inDevi Theatre v. Vishwanath Raju,

(2004) 7 SCC 337, where the Hon’ble Supreme Court held as follows:

“The learned counsel for the appellant submits that appeal lies from every decree passed by any court exercising original jurisdiction. The jurisdiction of the court in first appeal extends to examine the questions of facts as well as that of law. It is though true as pointed out by the learned counsel for the respondent that under Order 41 Rule 11 CPC it would be open for the court to dismiss the appeal in limine at the time of admission but even examining the matter from that point of view we find that the court while considering the question of admission of appeal filed under Section 96 CPC, may admit the appeal if considered fit for full hearing having prima facie merit. Otherwise, if it finds that the appeal lacks merits, it may be dismissed at the initial stage itself. But admission of the appeal, subject to condition of deposit of some given amount, is not envisaged in the provision as contained under Section 96 read with Order 41 Rule 11 CPC.”

From the above, it is clear that the power to admit an appeal or dismiss the same in limine under Order XLI Rule 11 is solely with the Court and not the Deputy Registrar. The same view has been taken by Hon’ble Justice S. Nagamuthu in S. Senbagavalli v Komalavalli, 2015 SCC Online Mad 7505, where the learned Judge dismissed a first appeal in limine under Order XLI Rule 11 CPC. This was precisely the view taken in Salla Gurusamy Chetty Trust v Tamil Nadu Arya

Vysya Maha Sabha, (1996) 1 LW 266, wherein it was held as under:

“The first stage of any proceeding is presentation. As soon as it is presented, it is entered in the Diary or the Stamp Register under a serial number. After the papers are found to be in order and passed by the Registry, it is given a number and entered in the appropriate register. That stage is known as Filing Stage. It is only at that stage the Court takes the matter on file. The third stage is one of admission. When the matter is posted before Court and it is found fit for admission, the Court passes orders as to admission. Thereafter, notice is issued to the respondent. If on the other hand, the Court decides that there is no case for admission, it is dismissed in limine.”

For the above reasons, it is clear that view taken by the Hon’ble Division

Bench is contrary to the decisions of the Hon’ble Supreme Court in Chetia v

Jogadish Bhuyan, (2005) 6 SCC 81), Jamal Uddin Ahmad v. Abu Saleh

Najmuddin, (2003) 4 SCC 257), Devi Theatre v. Vishwanath Raju, (2004) 7

SCC 337 and Mahadev Govind Gharge v. LAO, (2011) 6 SCC 321 and the prior

Division Bench judgment in Salla Gurusamy Chetty Trust v Tamil Nadu Arya Vysya Maha Sabha, (1996) 1 LW 266 and also the Repeal and Savings clause brought under Chapter 4 of the Civil Procedure Code (Amendment) Act, 1999 (Act

46 of 1999).Therefore,this Court is unable to subscribe the legal position as laid down by the Division Bench in V.S.Chandrasekaran’s case.

In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, it was held

“It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court.”

It is needless to add that all authorities including the High Court Registry is bound by the law declared by the Supreme Court under Articles 141 and 144 of the Constitution. As the Supreme Court has consistently held that an admission hearing under Order XLI Rule 11 must be before the first appellate Court, it would be impermissible to delegate such judicial functions to the Deputy Registrar contrary to the decisions in Chetia (cited supra)and Jamal Uddin Ahmad’s case (cited supra). In such view of the matter, the Registry shall continue to list first appeals for admission before the Court under Order XLI Rule 11 CPC.
Once again, this Court places on record its deepest appreciation to

Mr.N.Manoharan, learned counsel.

29.04.2025

Index : Yes / No

Speaking/non speaking order dhk

To,

The Principal District Judge,

Principal District Court

Perambalur

SATHISH KUMAR, J.

dhk

A.S.No.586 of 2025

29.04.2025

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