Court : Rajasthan
Reported in : 1986(2)WLN343
..... the same subject matter in view of the amendment made in section 47 of the code of civil procedure is covered under article 136 of the limitation act, which prescribes limitation for a period of 12 years whole for moving an application under article 134 of the limitation act it is only one year as much as there is another consequence that a person having the title over the property in his favour will not be in a position to file a suit for recovery of ..... shri patodiya further pointed out that the said amendment was made vide the code of civil procedure (amendment) act, 1976, on account of the proposition of law laid down by the hon'ble supreme court in har nand rai ..... urged that even under the amended section 47 of the code of civil procedure, a person is required to apply for delivery of possession of the immovable property purchased in auction sale and such an application is to be moved within one year from the date when the sale is made absolute, and proper article applicable is article 134 of the limitation act, 1963. ..... karunakaran : air1981ker236 on which reliance has been placed, the kerala high court has held as under:the application for delivery of possession of the property in the occupancy of the judgment debtor, or of some person on his behalf, has to be made in pursuance of the sale certificate issued under rule 94 of order 21 when the sale becomes absolute on the termination of the proceedings as aforesaid. ..... chandra poddar air 1926 cal 798; kerala high court in state v. .....
Tag this Judgment!Court : Rajasthan
Reported in : 1979WLN1
..... ii was added by the code of civil procedure (amendment) act, 1976.15. ..... lxvii of 1948) and in that connection observed as under:in our opinion, there is nothing in the language or context of section 70 or section 85 of the act to suggest that the jurisdiction of the civil court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates.the principles laid down in desika charyulu's case : air1964sc807 were adopted in k.c. ..... section 9 of civil procedure code, reads as under:9. ..... first, the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.2. ..... it is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. .....
Tag this Judgment!Court : Rajasthan
Reported in : 2001(3)WLC419; 2003(1)WLN255
..... though incidentally, the impugned amendments trenches upon some of the provisions of the evidence act, the indian penal code, the code of criminal procedure and the code of civil procedure, in pith and substance, it is within the integral scheme of the act, which, in our opinion, falls within entry-8, read with entries 64 & 65 of list-ii of the seventh schedule to the constitution, and under article 246(3), state legislature was competent to enact the amendment act.27. ..... briefly put, the contentions urged on behalf of the petitioners in this group of matters challenging the vires of the aforesaid provisions have been that:(a) amended provisions are repugnant to the provisions of the code of criminal procedure and the code of civil procedure. ..... in our opinion, the jurisdiction of the civil courts, has rightly been excluded under section 9-b of the act, and the same is in consonance with the provisions of section 9 of the code of civil procedure, to which, we have already referred in the preceding paragraphs. ..... therefore, by operation of proviso to clause (2) of article 254, the amendment act prevails over the relevant provisions in the indian evidence act, ipc and the code, in relation to the state of kerala.it was argued by the learned counsel for the petitioners that the impugned amendment trenches upon some of the provisions of evidence act, ipc and cr.p.c. ..... state of madras, 1957 s.c. .....
Tag this Judgment!Court : Rajasthan
Reported in : RLW2003(2)Raj1134; 2002(4)WLC530; 2002(5)WLN618
..... thus, the existence of a 'substantial question of law' is sine qua non for the exercise of the jurisdiction under the amended provisions of section 100 of the code of civil procedure.37. ..... moideen (1 (2001) clt 426) and in that case, the kerala high court, after considering the scope of section 100 cpc, came to the conclusion that in terms of section 100 of the code of civil procedure, this court can also raise any other substantial question of law that may arise in the light of the arguments addressed before it.35. ..... it may be stated here that proviso to sub-section (3) of section 13 of the rent control act was added through amendment in 1976 by which it has been categorically mentioned that while determining the amount under sub-section (3) of section 13 of the rent control act, the court shall not take into account the amount of rent which was barred by limitation on the first date of hearing of the suit, but this amendment came into force through rajasthan premises (control of rent & eviction) (amendment) ordinance 1975 (raj. ..... on 1-9-1975 for determination of rent under section 13(4) (old) of the rent control act, but the court did not determine the rent under the provisions of section 13(4) (old) of the rent control act and further observed that it hardly required any order from the court and, therefore, in these circumstances, the defendant appellant deposited the amount of rent, which was claimed by the plaintiff in his plaint excluding time barred rent.18. .....
Tag this Judgment!Court : Rajasthan
Reported in : AIR2000Raj228
..... it may be noticed here that present suit has been filed before code of civil procedure was amended in 1976 by the code of civil procedure (amendment) act 1976 (hereinafter called the act of 1976) and ordinarily an act operates prospectively in the matter of procedure would not effect the proceedings which has come into force prior to commencement of new act, unless contrary is provided by statute, either expressly or by necessary implication.10. ..... therefore it must be taken to be legislative mandate that amended provision of the code of civil procedure so far as section 11 is concerned govern the present proceedings.11. ..... 'now, the rule of resjudicata as indicated in section 11 of the code of civil procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical, but the basis on which the said rule rests is founded on considerations of public policy. ..... it must be noticed that finding given about the effect of decision given by court of limited jurisdiction on the question its binding nature as res judicata in subsequent suit, as per explanation viii to section 11 of the code of civil procedure has received final pronouncement by the apex court.13. ..... on the other hand the high courts of kerala. .....
Tag this Judgment!Court : Rajasthan
Reported in : AIR1996Raj119; 1996(1)WLC1
..... (2) the provisions of order 41, rule 3-a of the code of civil procedure are not mandatory and, therefore, filing of an application under section 5 of the limitation act, 1963 for condonation of delay in filing the appeal at a later stage is permissible. 23. ..... on a careful consideration of the case law on, the point and the aims and objects of amending the civil procedure code extensively in 1976, it was observed :-- 'the object of inserting rule 3-a(1) in order 41 was to put an end to the practice of admitting of appeal subject to the decision on the question of limitation. ..... both the high courts, kerala and karnataka had again the occasion to consider the provisions of order 41, rule 3-a of the civil procedure code and a division bench of the kerala high court held in maya devi v. m. k. ..... the decisions of the karnataka and kerala high courts overruling the decisions noted by the learned judge were not pointed out to the learned judge and hence a dissent was recorded. ..... the division bench of the kerala high court has observed thus :-- 'rule 3-a of order 41, is intended only to emphasize that if an appeal mad been filed out of time before the appeal is taken up for consideration the question of delay must be considered before any other order is passed in the appeal. ..... however, the learned judge observed this while considering the division bench judgment of the kerala high court reported in 1963 ker lt 455 and expressed his misgivings about the principle of law. .....
Tag this Judgment!Court : Rajasthan
Reported in : 2008ACJ473; AIR2007Raj147; RLW2007(4)Raj3022
..... it has thus been held that a special appeal against the judgment or order of a single judge in an appeal preferred under section 173 of the motor vehicles act is maintainable and the amended provision of section 100a of the code of civil procedure introduced by the code of civil procedure (amendment) act, 2002 has no impact on the power of a division bench to entertain and adjudicate the same.5. ..... the full bench of the kerala high court noticed that the intention of the leg-islature by enacting section 100a was to abolish an intra-court appeal to the bench of two judges of the same high court from a decision rendered by a single judge, it held that section 100a of the code of civil procedur would prevail over the provisions contained in section 5 (ii) of the kerala high court act. ..... the full bench of kerala high court has thus held that the right of further appeal as provided under section 5 (ii) of the kerala high court act stands abrogated by section 100a of the civil procedure code w.e.f ..... dutta 2006 air scw 4594 (supra), the supreme court noticed the full bench decisions of the andhra pradesh high court and kerala high court in gandla pannal bhulaxml air 2003 ap 458 and kesava pillai sreedharan pillai air 2004 kerala 111, respectively and accepted the legal position expostulated therein that the right of appeal available under the letters patent is taken away by section 100a of the code of civil procedure even in respect of the matter arising under special enactments having force .....
Tag this Judgment!Court : Rajasthan
Reported in : AIR1981Raj36; 1978(11)WLN321; 1980()WLN13
..... with respect we differ from the view taken by the two judge bench of this court in athani municipal council case, (air 1969 sc 1335) (supra) and hold that art 137 of the 1963 limitation act is not confined to applications contemplated by or under the code of civil procedure. ..... ' tt is, therefore, clear that article 137 of the limitation act, 1963 is not confined to applications contemplated by or under the code of civil procedure. ..... that article 137 of the limitation act, 1963 has no application to an application under section 8(2) of the act was due to the fact that the learned counsel for the parties in the revision, informed that town municipal council's case, (air 1969 sc 1335) has not been reconsidered by their lordships of the supreme court till then which was inadvertency inasmuch as the dictum of their lordships of the supreme court, which is binding, was not noticed and in ignorance of that, the finding in regard to the question of limitation was ..... 4 without taking note of the dictum laid down in kerala state electricity board's case is a mistake or error apparent on the face of the record within the meaning of order xlvii, rule 1, c. p. c. ..... in para 15 of her amended objection petition, she had laid down claims to all the properties left by kunj behari. .....
Tag this Judgment!Court : Rajasthan
Reported in : 1980WLN584
..... civil jurisdiction-(i) the marriage was solemnized, or(ii) the respondent, at the time of the presentation of the petition resides, or(iii) the parties to the marriage last resided together, or(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.it may be mentioned that the marriage laws (amendment) act ..... act, the court of the district judge within the local limits of whose ordinary jurisdiction or of whose jurisdiction under act, the husband and wife reside or last resided together.section 488(8) of the code of criminal procedure, 1898 was as follows:488(8) proceedings under this section may be taken aga'nst any person in any district where he resides or is, or where he lost resided with his wife, as the case may be, the mother of the illegitimate child.the expression 'last resided' as used in the ..... the absence of any place of permanent residence, the former shoud be regarded as the place where they last resided together.the words 'reside' or the expression 'last resided together' were interpreted by a full bench of the kerala ..... the marriage, the appellant lived with the respondent periodically and also cohabited with her occasionally, at srinagar, district ajmer from 1944 to 1950, 1951, 1953, 1955, 1957 .....
Tag this Judgment!Court : Rajasthan
Reported in : AIR1995Raj239; 1995(2)WLN441
..... before applying mind to the facts of this particular case, it would be proper and convenient to survey the position of the case law cited at the bar on the question of necessity or desirability to decide objections as to non-compliance with provision of section 83 of the act as preliminary objection at the threshold and as to the applicability of order vi, rule 16 and order vii, rule 11 of the code of civil procedure to election petitions. 15. ..... if an objection in this regard is upheld, an opportunity has to be given to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practices alleged and in the event of non-compliance of that order, the concerned charges may be struck off as vague. ..... we may, however, hasten to add that once the amendment sought falls within the purview of section 86(5), the high court should be liberal in allowing the same unless, in the facts and circumstances of the case, the court finds it unjust and prejudicial to the opposite party to allow the same. ..... if the tribunal upholds the objection, it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged; and in the event of non-compliance with that order the tribunal may strike out the charges which remain vague'. 33. ..... in 1957 kerala experienced on a small scale the reflection of this global phenomenon. .....
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