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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 ..... vil Appeals No.3276-3281 of 2019 titled as Chand Kaur(D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and in Civil Appeal Nos.9118-9119 of 2010 titled as Surat Singh (Dead) Vs. Siri Bhagwan & Ors, both emanating from the Punjab and Haryana High Court. He also relies upon two other judgments i.e Civil Appeal No.4451 of 2009 titled as Shrikant Vs. Narayan Singh (d) through Lrs. & Ors. and Civil Appeal No.1117 of 2001 titled as Santosh Hazari Vs. Purushottam Tiwari (D) by Lrs, both emanating from the Madhya Pradesh High Court to canvass the aforesaid proposition. 4. On the last date of hearing, we had pointed out to learned counsel for the appellant(s) that insofar as Punjab and Haryana High Court is concerned, a different legal position will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantial 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 contrary to law or to some custom or usage having the force of law: (b) the decision having failed to determine some material issue of law or custom or usage having the force of law: (c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect. 11. The discussion of the Constitution Bench is as under: 24. The judgment in Kulwant Kaur case raised a question which arose on an application of Section 41 of the Punjab Courts 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law.' This introduction definitely is in conflict with Section 41 of the Punjab Act which was in pari materia with unamended Section 100 CPC. Thus, so long there was no specific provision to the contrary in this Code, Section 4 CPC saved special or local law. But after it comes in conflict, Section 4 CPC would not save, on the contrary its language implied would make such special or local law inapplicable. We may examine now the submission for the respondent based on the language of Section 100(1) CPC even after the said amendment. The reliance is on the following words: '100. Second appeal - (1) Save as otherwise expressly provided ...by any other law for the time being in force....' These words existed even prior to the amendment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1)alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act,1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. Shri Viswanathan's reliance upon this authority, therefore, does not lead his argument any further." 12. In view of the legal position en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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