Part X – Rules (Section 121-131)

Section 121: Effect of rules in First Schedule.—

The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.


Section 122: 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 subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.


Section 123: Constitution of Rule Committees in certain States.—

(1) A Committee to be called the Rule Committee, shall be constituted at the town which is the usual place of sitting of each of the High Courts referred to in Section 122.

(2) Each such Committee shall consist of the following persons, namely:

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or a Divisional Judge for three years,

(b) two legal practitioners enrolled in that Court,

(c) a Judge of a Civil Court subordinate to the High Court,

(3) The members of each such Committee shall be appointed by the High Court, who shall also nominate one of their number to be President.

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the High Court in this behalf; and whenever any member retires, resigns, dies or ceases to reside in the State in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said High Court may appoint another person to be a member in his stead.

(5) There shall be a Secretary to each such Committee who shall be appointed by the High Court and shall receive such remuneration as may be provided in this behalf by the State Government.


Section 124: Committee to report to High Court.—

Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under Section 122 the High Court shall take such report into consideration.


Section 125: Power of other High Courts to make rules.—

High Courts, other than the Courts specified in Section 122, may exercise the powers conferred by that section in such manner and subject to such conditions as the State Government may determine:

Provided that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court.


Section 126: Rules to be subject to approval.—

Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of the Central Government.


Section 127: Publication of rules.—

Rules so made and approved shall be published in the Official Gazette, 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 128: Matters for which rules may provide.—

(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely:—

(a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under the attachment, of live stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property, and the proceeds of such sale;

(c) procedure in suits by way of counterclaim, and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) summary procedure—

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising—

on a contract express or implied; or

on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or

on a trust; or

(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or Master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil Courts.


Section 129: Power of High Courts to make rules as to their original civil procedure.—

Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.


Section 130: Power of other High Courts to make rules as to matters other than procedure.—

A High Court not being a High Court to which Section 129 applies may, with the previous approval of the State Government, make with respect to any matter other than procedure any rule which a High Court for a State might under Article 227 of the Constitution make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a presidency-town.


Section 131: Publication of rules.

Rules made in accordance with Section 129 or Section 130 shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the force of law.


IMPORTANT CASE LAWS

1. Is Section 122 a piece of ‘Excessive Legislation’

Aboobacker Babu Haji v. Edakkode Pathummakutty Umma, (2004) 11 SCC 183: “….Section 122 of the Civil Procedure Code empowers each High Court to annul, alter or add to all or any of the rules set out in the First Schedule…….. It is the High Courts which are familiar and knowledgeable about the procedure which governs them and the courts subordinate to them. It is for this reason that the legislature has in its wisdom given this power to the High Court……… a rule, framed by virtue of power given under Section 122, cannot be said to be a piece of excessive legislation. It is within the competence of the High Court to do so……”


2. Balance between Sections, First Schedule and Rules framed by the High Court

Chandra Bhushan Misra v. Jayatri Devi, AIR 1969 All 142: “…by virtue of Sec. 121 the rules in the First Schedule have effect as if enacted in the body of the Code. Accordingly, the rules contained in the First Schedule as well as the rules framed by the High Courts must be considered in their effect as if they are further provisions in the body of the Code. With Sec. 128 safeguarding that the rules framed by the High Courts would not be inconsistent with the sections of the Code, the Legislature provided a harmonious balance between the sections, the rules in the First Schedule, and the rules framed by the High Courts. The mutual relationship in which these three classified categories of law have been placed demonstrates the organic unity running through the entire content of the Code.”


3. Object of providing Legislative powers to the Courts

Umaji Keshao Meshram v. Radhikabai, AIR 1986 SCC 1272: “….Under Sections 122 and 125 of the Code, the High Courts are conferred the power to make rules regulating their own procedure and the procedure of the civil courts subject to their superintendence and they can by such rules annul, alter or add to all or any of the Rules in the First Schedule to the Code. These rules are, therefore, intended to regulate the exercise of procedure in respect of matters to which the Code applies…..”


4. Scheme of the Code

Menkabai Mukundrao v. Manohar Mukundrao Deshpande, AIR 1971 Bom 21: “The Code of Civil Procedure of 1908, is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature and the preamble of the Code states that it has been enacted as it was expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. This Code was enacted mainly for the purposes of regulating the procedure of the Courts in dealing with the matters coming before them and the First Schedule which contains the rules have been styled by the framers of the Code as rules of procedure. The Code has been divided into two parts, one consisting of ss. 1 to 158 and the other consisting of the Orders I to LI which are divided into rules. The part consisting of the sections is generally referred to as the body of the Code and the other part is referred to as rules as will be apparent from the provisions of ss. 121 and 128 of the Code of Civil Procedure. The body of the Code gives several substantive rights to the litigants and those substantive rights which have been given by the Legislature could only be taken away by the Legislature and there is no provision like s. 122 authorising the High Courts to take away any of those rights granted in the body of the Code or to annul or alter or add to them, but so far as the rules in the First Schedule are concerned, a specific provision has been made in s. 122 empowering the High Courts to make their own rules for their own procedure and also for the purposes of the Civil Courts subject to their superintendence as well as a power has been given to the High Courts to annul, alter or add to all or any of the rules given in the First Schedule of the Civil Procedure Code.”


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