Latha Menon vs Ponnamma on 17 May, 2022

[Cites 30, Cited by 0]

Kerala High Court

Latha Menon vs Ponnamma on 17 May, 2022

2. In Seetha Ramachandran @ Seetha Varma and others v. K.B.Radhakrishnan [2012 (4) KLT 856] a learned Single Judge of this Court held that provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, 1908 do not apply to interlocutory applications. The said order was rendered after referring to the judgments of the Madras High Court in Latchayya and another v. Surya Prakasa Rao [AIR 1928 Madras 1165] and of the Calcutta High Court in B.A. Stores Syndicate v. Stores and Engineering Supply Company [AIR 1952 (39) Calcutta 411 (CN 116)]. The said judgments were rendered prior to introduction of the Explanation to Section 141 of the Code, which was in the year 1976. Pointing out that in view of the clarification in the said Explanation that 'proceedings' include proceedings under Order IX of the Code as well, the matter was referred to the Division Bench opining that the decision in Seetha 2 O.P.(C) No.3271 of 2019 Ramachandran requires a relook.

3. Heard the counsel appearing for the petitioners and the learned counsel appearing for the respondent.

4. The learned counsel appearing for the petitioners, Advocate Smt.Girija K. Gopal advanced arguments exhaustively and contended that the provisions of Section 141 of the Code make applicable the procedure for the suits in the Code to all proceedings in a court of civil jurisdiction and therefore, the provisions of Order XXIII Rule 1 apply to every interlocutory application. Its obvious corollary is that when an interlocutory application is withdrawn without obtaining leave of the court to institute a fresh one for the same purpose, no second application is possible, in view of the bar under sub- rule (4) of Order XXIII Rule 1 of the Code. Supporting the view in Seetha Ramachandran, it is further submitted that the amendment brought about to Section 141 of the Code makes the position clearer, inasmuch as the proceedings under Order IX also are brought into its penumbra, in addition to the interlocutory matters in the pending suits which are 3 O.P.(C) No.3271 of 2019 already covered.

5. Per contra, the learned Counsel appearing for the respondent, Advocate Sri. S.K. Balachandran contended that invoking Section 141 of the Code, what is possible is to apply procedural law only and not substantive law. Therefore, the procedural part of the provisions in the Code intended to apply to the suits can alone be made applicable to the other proceedings in the courts of civil jurisdiction.

6. Both the learned counsel cited slew of decisions to fortify their respective contentions. Decisions having relevance to the points under consideration are referred to at appropriate places. A few decisions, which deal with 'subject matter', consequence of 'not press', res judicata and when can a suit be permitted to be withdrawn, are not discussed since not required to answer the reference.

7. In Seetha Ramachandran, the question considered was whether an application filed quoting a different provision after withdrawing an earlier application for the same purpose without obtaining leave of the court to file a 4 O.P.(C) No.3271 of 2019 fresh one is barred under the provisions of Order XXIII Rule 1 (4) of the Code. While answering that question, the learned Single Judge laid down two interwoven principles; (i) Order XXIII Rule 1 deals with suits and part of the claim raised in a suit only and (ii) Order XXIII Rule (1) does not apply to interlocutory applications and the orders passed thereon.

8. In Seetha Ramachandran, the petitioners filed an interlocutory application invoking Section 114 read with Order XLVII Rule 1 and Section 151 of the Code seeking to review the compromise decree passed in the suit. The petitioners, on finding that wrong provisions were quoted, withdrew that application and filed a fresh one with the very same relief invoking the provisions of Order XXIII Rule 3 of the Code. Rejection of that application was in question. The Court placed reliance on not only the decisions in Latchayya and B.A. Stores Syndicate but also the principle laid down by the Apex Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527] and Jet Ply Wood (P) Ltd. v. Madhukar Nowlakha and others [(2006) 3 5 O.P.(C) No.3271 of 2019 SCC 699] which quoted with approval the ratio in Rameswar Sarkar v. State of West Bengal and others [AIR 1986 Calcutta 19]. The Apex Court in Manoharlal Chopra and Jet Ply Wood (P) Ltd had considered the scope of inherent powers which a civil court can exercise under Section 151 of the Code. The ratio laid down was that the provisions in the Code do not affect the power of the court to make orders necessary for the ends of justice and that in the absence of a specific provision in the Code, the court is competent to invoke Section 151 of the Code, which is subject to the caveat that such exercise of power shall only be in extreme cases; where interest of justice demanded it. The question requires consideration in this reference is limited to whether Order XXIII Rule 1 deals with suits and part of the claim pleaded in a suit only and, does Order XXIII Rule 1 apply to interlocutory applications and the orders passed thereon. Therefore the aforesaid decisions of the Apex Court and the Calcutta High Court which explain the scope and ambit of Section 151 of the Code do not have any relevance here.

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9. Implication of the decision in Seetha Ramachandran is that none of the provisions in Rule 1 of Order XXIII of the Code would apply to interlocutory applications. The doubt raised is that, can there be such a universal exclusion even after addition of the Explanation to Section 141 by Act 104 of 1976 with effect from 01.02.1977. Also, it is queried, since pre-amendment precedents were relied on, if the ratio in Seetha Ramachandran went wrong?

10. Section 141 of the Code before the said amendment reads:

"141. Miscellaneous proceedings The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction."

The Explanation to Section 141 added by the Act 104 of 1976 reads:

Explanation.-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.

11. We feel that in order to have a proper 7 O.P.(C) No.3271 of 2019 understanding of the reason for adding the Explanation and the real purport of the provision its legislative history has to be looked into. It is apposite here to have a reference to the following observations of the Apex Court in Nandini Satpathy v. P. L. Dani and Another [(1978) 2 SCC 424] :

"33.......The only rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law giver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute......."

12. The Law Commission in its 54th report had recommended amendment to Section 141 of the Code. The Commission deliberated upon in detail as to whether Section 141 of the Code should be made applicable to the execution and other proceedings under the Code, proceedings under other Acts, proceedings under the Constitution and also other 8 O.P.(C) No.3271 of 2019 similar proceedings. The need for such consideration has arisen on account of the conflicting views taken by various High Courts in the Country with regard to the applicability of Section 141 to proceedings other than suits. Views with respect to the applicability of Section 141 to execution proceedings, interlocutory applications, proceedings under Article 226 and 227 of the Constitution of India and also the original proceedings under the other statutes were conflicting. Observation in Mulla on CPC, 13 th Edition which was referred to in Seetha Ramachandran at paragraph No.9 reflects the fluid situation. It states that Section 141 of the Code intended only that the procedure in proceedings like probate, guardianship and so on and so forth shall be regulated by the procedure for the suits in the Code. That view negates application of Section 141 to interlocutory applications filed in the civil courts. If that is the line of approach, proceedings under Order IX of the Code also will get excluded from the scope of Section 141. Cognizant of that uncertainty, the Law Commission has recommended to amend Section 141 by 9 O.P.(C) No.3271 of 2019 adding the Explanation thereby to include within its scope, the proceedings under Order IX of the Code and to exclude proceedings under Article 226 of the Constitution of India. There was no mention in the report as to whether execution proceedings and interlocutory applications are to be either included or excluded from the purview of Section 141 of the Code.

13. Clause 50 in notes on Clauses appended to the Code of Civil Procedure (Amendment) Bill, 1974 contains the reason for the amendment of Section 141, which reads thus:

"Clause 50- The applicability of Section 141 to various types of proceedings has been the subject of controversy, particularly whether the section applies where an application to set aside ex parte proceedings or orders of dismissal for default are themselves dismissed for default or decided ex parte. The High Court of Bombay held that in such cases section 151 applies. The Supreme Court, however, came to a contrary conclusion. In the circumstances, Section 141 is being amended to clarify that the Section applies to proceedings under Order IX. The question whether an application under Article 226 of the Constitution is a "proceedings in a Court of civil jurisdiction" within the 10 O.P.(C) No.3271 of 2019 meaning of Section 141 has been the subject-matter of a controversy. While the Andhra High Court holds that Section 141 applies to such proceedings, the Allahabad, Calcutta, Madras and Punjab High Courts have held that Section 141 does not apply to such proceedings. In the circumstances, it is being clarified that Section 141 does not apply to proceedings under Article 226 of the Constitution".

14. A Joint Parliamentary Committee constituted for making its recommendations with respect to the said Bill has submitted its report on 01.04.1976. During the deliberations of the Committee, the nature of amendment required to Section 141 of the Code attracted serious discussions. There was a strong line of thinking that the execution proceedings under the Code have to be excluded but the proceedings under Article 226 and 227 of the Constitution of India were to be included within the purview of Section 141. On observing that the Apex Court had already taken the view that the execution proceedings under the Code are beyond the purview of Section 141, it concluded that the execution proceedings does not require mention in Section 141. The Committee ultimately made up its view that the proceedings under 11 O.P.(C) No.3271 of 2019 Articles 226 and 227 of the Constitution of India should be excluded from the scope of Section 141 and thereby the recommendation of the Law Commission was accepted. Although there were deliberations before the Joint Parliamentary Committee as well as in the Parliament as to whether interlocutory applications in general are to be mentioned, the amendment came to be passed without there having any mention about interlocutory applications. The Explanation only clarifies that the expression 'proceedings' includes proceedings under Order IX of the Code. However, the legislative intent is clear from the developments culminating in the amendment, that interlocutory applications are covered by Section 141 of the Code, and clarification was required so as to add applications under Order IX of the Code also since, such applications are filed after disposal of the suits. In the said circumstances, it is also required to consider the judicial precedents on the point.

15. Initially, the view was that Section 141 of the Code was intended to make the procedure in the Code for the suits 12 O.P.(C) No.3271 of 2019 applicable also to the original proceedings under special statutes like the Guardian and Wards Act, 1890, the Indian Succession Act, 1920, and so on and so forth. To which other proceedings, like execution, interlocutory applications and, proceedings under Articles 226 and 227 of the Constitution of India should apply, the view of various courts have been so conflicting. Whether Section 141 of the Code applies if an application is filed to restore an application to set aside an ex parte decree or restore a suit dismissed for default has been more controversial. It was in that context the Explanation was added, whereby it was clarified that the proceedings made mention of in Section 141 include proceedings under Order IX of the Code.

16. It is interesting to note that the understanding of Section 141 by various courts prior to the amendment also was that it takes in its fold the proceedings under Order IX of the Code.

17. In Munshi Ram v. Banwari Lal (deceased) and His Heirs and Legal Representatives and another [AIR 13 O.P.(C) No.3271 of 2019 1962 SC 903] the question was whether after a decree on the arbitral award was properly passed, the compromise arrived at between the parties which works out only within the terms of the award be given effect by the court by making a substitution in the operative part of the decree. The Apex Court held that such an application can be entertained by invoking the provisions of Section 41 of the Arbitration Act and also Section 141 of the Code. After referring to that principle, the Apex Court in Ram Chandra Aggarwal and another v. State of U. P. and another [AIR 1966 SC 1888] held, "though there is no discussion, the Court has acted upon the view that the expression "civil proceeding" in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian, etc., but that it applies also to a proceeding which is not an original proceeding".

18. A Full Bench of the Madhya Pradesh High Court in Nathu Prassad v. Singhai Kapurchand [AIR 1976 Madhya Pradesh 136] took cue from the said decisions to hold that Section 141 of the Code applies to applications to 14 O.P.(C) No.3271 of 2019 set aside ex parte proceedings or orders of dismissal for default and also proceedings initiated when such an application itself is dismissed for default or decided ex parte.

19. The Apex Court in Nawab Usmanali Khan v.

Sagar Mal [AIR 1965 SC 1798] held that by virtue of Section 141, the provisions in the Code applicable to the suits are applicable to proceedings in the civil court under the Indian Arbitration Act, 1940. Following the said principle, various High Courts including the High Court of Kerala took the view that the interlocutory applications are also covered, the same way Section 141 of the Code covers suits.

20. After addition of the Explanation to Section 141 of the Code by the amendment in 1976, which says that the expression "proceedings" includes proceedings under Order IX there is no reason for any doubt on that aspect. On a careful reading of Section 141, it is clear that the procedure provided in the Code with regard to the suit shall be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction. A long line of post amendment decisions also 15 O.P.(C) No.3271 of 2019 fortify the said view. A Division Bench of this Court in Ezhuthachan National Academy and others v. R.Gopinathan Nair and others [2019 (2) KLT 1073], considered a question referred to it by a learned Single Judge. The question was, does the District Court, while exercising jurisdiction under Section 25 of the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955, have the power to grant an interim order of injunction? The obvious preluding question was, if Section 141 of the Code applies to the interlocutory matters. The Division Bench followed the principle in Navab Usmanali Khan to take the view that the procedure applicable to suits are to be followed while dealing with interlocutory applications also by implication of Section 141 of the Code. Decisions of various High Courts which reiterated that view have also been referred to.

21. The question that was considered in S. Noordeen v. V. S. Thiru Venkita Reddiar [(1996) 3 SCC 289] was whether a proceedings under Order XXXVIII Rule 8 read with 16 O.P.(C) No.3271 of 2019 Order XXI Rule 58, is a civil proceeding. The Apex Court held, "7. The question is: whether proceedings under XXXVIII Rule 6 of the Code is part of the civil proceedings? It is seen that when an application under XXXVIII Rule 1 is made for attachment before judgment, as envisaged in clauses (i), (ii),

(iii) and (iv), if the defendant furnishes security, then the need to make an attachment of the properties does not arise. On his failure to do so, Rule 6 gives power to the court to attach the properties before judgment where no cause is shown or security is not furnished. Then mode of attachment has been provided in Rule 7. It says that "save otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree." Rule 8 provides adjudication of claim to property attached before judgment. The procedure has been provided for attachment under Order XXI Rule 38 and adjudication under XXI Rule 58.

8. Section 141 of the Code provides that "the procedure provided therein in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction".

      The    Explanation       amplifies    the    doubt     that   the
      expression      "proceedings"         includes      proceedings
      under     Order    IX,     but   does       not    include    any
                                 17
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proceeding under Article 226 of the Constitution". It would thus be clear that the proceedings envisaged for adjudication under Order XXXVIII Rule 8 read with Order XXI Rule 58, is a civil proceeding. When attachment of the properties has been made before the judgment, they become part of the civil proceedings in the suit....."

(underline supplied)

22. Precedents in this respect are almost harmonious. It is, therefore, no more res integra that Section 141 of the Code applies to interlocutory applications.

23. The further question to be examined to answer the reference is as to the ambit of applicability of the provisions in the Code which govern suits, to the other proceedings, particularly, interlocutory applications.

24. The fundamental rule of interpretation is the literal interpretation for, the function of the court is only to expound the meaning of the provision and not to legislate. Only if it is unable through the literal interpretation, to understand the legislative intent, the court is required to go to the other modes of interpretation. The verbal expressions contained in Section 141 of the Code makes it clear that the procedure 18 O.P.(C) No.3271 of 2019 provided in the Code in regard to the suits shall be followed in other proceedings in any court of civil jurisdiction, as far as can be made applicable, meaning thereby the procedure to be followed in a suit, mutatis mutandis shall be followed in the interlocutory applications also. When it is emphasised that the procedure as similarly as possible is to be followed, the question arises is where a provision in the Code that deals with substantive right of the parties, can also be applied to interlocutory applications.

25. The Apex Court in Navab Usman Alikhan held that Section 141 of the Code makes applicable to other proceedings only those provisions in the Code which deal with procedure and not those which deal with substantive rights. A Division Bench of this Court in Thresia v. Xavier [1976 KLT 209] held that provisions in the Code contains substantive and procedural rights and what is made applicable to proceedings other than suits by Section 141 of the Code is only those provisions which deal with matters of procedure. The Court further held that the right of a person to institute a 19 O.P.(C) No.3271 of 2019 proceedings as an indigent is a substantive right. Following the said principle, another Division Bench of this Court in Ezuthachan National Academy held that Section 141 of the Code makes applicable to other proceedings, only those provisions of the Code which deal with the procedure and not those which deal with the substantive rights. The Apex Court in Jaswant Singh v. Parkash Kaur [(2018) 12 SCC 249] was concerned with the question, where an application for restoration of application under Order IX, Rule 13 of the Code is dismissed for non - appearance of the applicant, would not that order be amenable to appeal under Order XLIII, Rule 1(c) or 1(d). The Apex Court has considered the extent of applicability of Section 141 of the Code to the interlocutory applications. After referring to various decisions of the Apex Court as well as different High Courts including what has been held by this Court in Kallianikutty Amma v. State of Kerala [AIR 1974 Kerala 171] it was observed that the provisions of Section 141 of the Code could not be applied except to the procedural matters; it could not be invoked in 20 O.P.(C) No.3271 of 2019 cases where a substantive right is involved. The conspectus of the aforesaid discussion is that the procedural part of the provisions in the Code which are applicable to the suits shall, as far as can be made applicable, alone be followed in interlocutory applications.

26. This takes us to the moot question whether the provisions of order XXIII Rule 1 can have application to interlocutory applications. The answer depends, whether the provisions contained in Order XXIII Rule 1 deal with substantive right or procedural right.

27. In Halsbury's Laws of India, Vol-VII, at 65.001, the essential distinction between substantive law and procedural law is stated thus, "While substantive law determines rights and liabilities of parties or confers legal status or imposes and defines the nature and extent of legal duties, adjective or procedural law prescribes the practice, procedure and machinery for the enforcement or recognition of legal rights and liabilities by a court of law or other recognised or a properly constituted tribunal. Thus, procedural law is always 21 O.P.(C) No.3271 of 2019 subservient to substantive law. Nothing can be given by a procedural law that is not sought to be given by a substantive law, and nothing can be taken away by a procedural law that is given by a substantive law."

28. It is indisputable that the Code of Civil Procedure not only contains procedural provisions but also substantive provisions. A few instances of substantive provisions in the Code pointed out by the Apex Court are;

(i) Res judicata contained in Section 11 of the Code partakes of the character of substantive law.

"For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (per Lord Wright in Canada & Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Stemships Ltd. (1946) 3 W.W.R. 759 at p. 764)." See Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry [(1981) 2 SCC 22 O.P.(C) No.3271 of 2019 646].

(ii) Provision relating right to file an appeal is a substantive provision. "Right to file an appeal under Section 96(2) of the Code is a statutory remedy.

The right to appeal is not a mere matter of procedure; but is a substantive right." See: Mohan N. v. R. Madhu [AIR 2020 SC 41], Videocon International Ltd. v. Securities and Exchange Board of India [(2015) 4 SCC 33] and Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation [(2009) 8 SCC 646].

(iii) Provisions of Rule 4 (3) read with Rule 11 of Order XXII of the Code is part of the substantive law. "Under Rule 4 (3) read with Rule 11 of Order XXII of the Code the appeal abates as against the deceased respondent where within the time limited by law no application is made to bring his heirs or legal representatives on record. As pointed out by this Court in State of Punjab v. Nathu Ram [AIR 1963 SC 89] it is not correct to say that the appeal abates against the other respondents. Under certain circumstances the appeal. may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (Mulla on C.P.C. Vol. I Thirteenth Edition page 620 23 O.P.(C) No.3271 of 2019 under note Non-joinder of- Parties)." See: Ramagya Prasad Gupta v. Murli Prasad [AIR 1972 SC 1181]

29. Learned counsel for the petitioners placed reliance on the decision in Narain Singh S. and another v. M/s. Ram Gopal Madan Lal and others [AIR 1981 Delhi 88] to contend that the bar under Order XXIII Rule 1(4) of the Code applies to interlocutory applications. In that case the plaintiffs filed an application under Order XXXIX, Rules 1 and 2 of the Code on 8th October, 1979, wherein an ex parte injunction sought for by them was issued by the trial court. But this application was dismissed as being not pressed on 21 st March, 1980. The question therefore was whether the plaintiffs-appellants were entitled to file a fresh application for injunction on the same grounds. A Single Bench of the Delhi High Court held, "Under sub-rule (4) of Rule 1 of Order XXIII a plaintiff is precluded from instituting any fresh suit in respect of the claim withdrawn by him. Thus if a plaintiff withdraws a suit, he is not entitled to file a fresh suit on the same cause of action. Similarly, if the plaintiff files an 24 O.P.(C) No.3271 of 2019 application for the grant of a temporary injunction and after notice to the opposite party who has filed a reply and during the course of arguments the plaintiff withdraws the application for temporary injunction, it appears that the plaintiff is debarred from instituting a fresh application unless there has been change of circumstances since the date of dismissal of the previous injunction application. Section 141 of the Code makes the procedure applicable to the suits to all proceedings in court of civil jurisdiction. The proceedings for the grant of temporary injunction are proceedings in a civil court. Thus reading together Order XXIII and Section 141 of the Code it appears that the present application for temporary injunction filed on 16th April, 1980 decided by the impugned order dated 15th July, 1980 is barred under sub-rule (4) of Rule 1 of Order XXIII of the Code."

30. One of the issues deliberated upon by the Division Bench of this Court in Ezhuthachan National Academy was, while Section 141 of the Code makes procedure for the suits applicable to other proceedings, do the provisions in the 25 O.P.(C) No.3271 of 2019 Code which deal with the procedure alone and, not those which deal with the substantive rights, apply to the other proceedings. The premise was that, if Section 94 read with Order XXXIX Rule 1 in the Code is a substantive law, Section 141 cannot be invoked, to grant an order of temporary injunction. The elaboration on this point by the Court is profitably extracted below:

"The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - jus quod ad actiones pertinet- using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to former determines their conduct and relations in respect of the matters litigated."

A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation whether I have a right to recover certain property is question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in 26 O.P.(C) No.3271 of 2019 what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely."

31. The said differential approach as between procedural and substantive provisions in the Code was not attempted to be drawn in Narain Singh while holding that bar under sub-rule (4) of Rule 1 of Order XXIII of the Code applies to an application for temporary injunction. We are, therefore, of the view that the said decision did not lay down the correct principle.

32. Order XXIII Rule 1(4) of the Code bars filing of a fresh suit where the plaintiff abandons the suit or part of a claim in the suit or withdraws from the suit or part of a claim without permission to file a fresh one. Applying the aforesaid rationale, the provision contained in Order XXIII Rule 1(4) of the Code, certainly governs substantive rights of the parties inasmuch as this provision forecloses the right to institute a 27 O.P.(C) No.3271 of 2019 fresh suit forever. On the other hand, the other provisions in Order XXIII Rule 1 are only procedural matters. Therefore, by application of Section 141 of the Code, the provisions of Order XXIII Rule 1(4) cannot have application to interlocutory applications, whereas the other provisions in the Rule have application. Therefore the decision in Seetha Ramachandran @ Seetha Varma and others v. K.B.Radhakrishnan [2012 (4) KLT 856] insofar as it says that sub-rules (1) to (3) of Order XXIII Rule 1 of the Code do not have application to interlocutory applications is incorrect. The decision in Seetha Ramachandran is overruled to that extent.

The reference is answered thus. Registry will post the original petition before the Bench concerned as per roster.

Sd/-

ANIL K.NARENDRAN JUDGE Sd/-

P.G. AJITHKUMAR JUDGE PV 17-05-2022 /True Copy/ Assistant Registrar

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