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TMI Blog2019 (5) TMI 1901X X X X Extracts X X X X X X X X Extracts X X X X ..... to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. A Constitution Bench of this Court however in PANKAJAKSHI VERSUS CHANDRIKA [ 2016 (2) TMI 1063 - SUPREME COURT] opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list - The effect of the judgment of the Constitution Bench is that insofar as the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1976 (hereinafter referred to as the Amendment Act ) and Section 100 of the Code of Civil Procedure, 1976 (hereinafter referred to as the Code ) was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same. 8. It was initially held in Kulwant Kaur Ors. Vs. Gurdial Singh Mann (Dead) by Lrs. Ors. (2001) 4 SCC 262 case that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the Punjab Act ) which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. Section 41 of the Punjab Courts Act reads as under: Section 41 - Second Appeals (1) An appeal shall lie to the High court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely : (a) the decision being cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Act, 1918. This Section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. The question this Court posed before itself was whether Section 41 stood repealed by virtue of Section 97(1)of the Code of Civil Procedure (Amendment) Act, 1976, which reads as under:- 97. Repeal and savings - (1) 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 insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. This Court concluded that Section 41 of the Punjab Courts Act was repealed because it would amount to an amendment made or provision inserted in the principal Act by a State Legislature. This Court further held that, in any event, Section 41 of the Punjab Courts Act being a law made by the Legislature of a State is repugnant to a later law made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Ganpat cannot be sustained and is thus overruled. [at paras 27 29] 25. We are afraid that this judgment in Kulwant Kaur case does not state the law correctly on both propositions. First and foremost, when Section97(1) of the Code of Civil Procedure (Amendment) Act, 1976speaks of any amendment made or any provision inserted in the principal Act by virtue of 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 the1976 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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