Report No. 70
89.1. Section 104.-
This takes us to the last section in the group of sections dealing with mortgages and charges. Section 104 empowers the High Court, from time to time, to make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.
One would have thought that such a simple provision should hardly need any comments. However, the section seems to have given rise to quite a few problems. That the section is an enabling provision is, of course, obvious, but some questions arise where the rules have been framed as contemplated by the section. What is the precise scope of the power to make rules for "carrying out the provisions contained" in this Chapter? According to the view of Bhashyam Ayyangar J.,1 the rule making power conferred on the High Court by this section is principally intended to regulate the procedure to be adopted for carrying out these and similar provisions contained in the Chapter.
1. Mallikar Janadu v. Lingamurli, 1902 ILR 25 Mad 244 (273) (FB).
89.3. Consistency with the Code.-
It is a moot question whether the rules to be framed under section 104 can be inconsistent with the provisions of the Code of Civil Procedure, 1908. The view generally taken is that while rules applicable1 to proceedings on the original side of High Court can be inconsistent with the Code, the rules made for the lower courts can not be inconsistent with the Code, the reason being that section 104 must be read subject to section 15 of the Charter Act, under which rules to be made by the High Court must not be inconsistent with the provisions of any law for the time being in force.2 It is worthwhile codifying this position in so far as it relates to rules made for subordinate courts.
1. AIR 1928 Born 123 (128).
2. 1902 ILR 25 Mad 244 (254).
89.4. Previous approval.-
It also seems desirable to provide that the rules made under section 104 should be made with the previous approval of the Government, where they relate to subordinate courts. It may be noticed that under Article 227(2) of the Constitution, the High Court has, inter alia, power to make and issue general rules and prescribe forms for regulating the practice and proceedings of courts over which it has superintendence, but, under Article 227(3), proviso, rules so made or forms so prescribed shall not be inconsistent with the provisions of any law for the time being in force and shall require the previous approval of the Governor. A similar provision can be made in section 104, in so far as rules for courts subject to the superintendence of the High Court are concerned.
We recommend that section 104 should be so amended, that is to say, to require such previous approval as well as consistency with other laws, where the rules relate to subordinate Courts. A proviso will do.