Code of Civil Procedure, 1908 (CPC)
Rule-Making Power: Sections 121 to 131
The Code of Civil Procedure, 1908 has two parts, and they are amended in entirely different ways. The body of the Code, the numbered sections, can be changed only by the legislature. The First Schedule, the Orders and Rules, can be changed by a High Court. Part X contains the machinery for that: Section 121 gives the Schedule the force of the Code, Section 122 gives the High Court power to annul, alter or add to it, and Section 128 sets the ceiling. These notes cover the Part and explain how the Code and the Rules relate.
The steps by which a Rule is made, and the ceiling that governs them
1. Section 121: The Status of the First Schedule
§ Section 121, CPC 1908 The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part. |
§ Two consequences • The Orders carry the same force as the sections. A rule in the First Schedule is not subordinate legislation of a lesser quality; it operates as though the legislature had written it into the Code. • But it is not permanent in the same way. The words until annulled or altered in accordance with the provisions of this Part mark the difference: a High Court may change a rule, and cannot change a section. |
2. Section 122: The Power to Make Rules
§ Section 122 (in substance) High Courts not being the Court of a Judicial Commissioner may from time to time after previous publication make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. |
Provision | What it adds |
|---|---|
Section 123 | A RULE COMMITTEE is constituted at the place where the High Court exercises original civil jurisdiction, or at such other place as it appoints, with judges, advocates and a judge of a subordinate civil court, chaired by a Judge of the High Court |
Section 124 | The Committee shall REPORT to the High Court on any proposal to annul, alter or add to the rules, or to make new rules, and before making rules the High Court shall take the report into consideration |
Section 125 | Corresponding power for High Courts that ARE the Court of a Judicial Commissioner |
Section 126 | Rules made under Section 122 or Section 125 shall be subject to the PREVIOUS APPROVAL OF THE STATE GOVERNMENT |
Section 127 | Rules so made shall be PUBLISHED IN THE OFFICIAL GAZETTE and shall from the date of publication, or such other date as may be specified, have the same force and effect as if they had been contained in the First Schedule |
3. Section 128: The Ceiling and the List
§ Section 128(1): the ceiling Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts. |
§ Section 128(2): the ten matters expressly named Without prejudice to the generality of sub-section (1), the rules may provide for: • (a) the service of summonses, notices and other processes by post or in any other manner, and the proof of such service. • (b) the maintenance and custody of attached livestock and other movable property, the fees for it, the sale, and the proceeds. • (c) procedure in suits by way of counterclaim, and the valuation of such suits for the purposes of jurisdiction. • (d) procedure in garnishee and charging orders, either in addition to or in substitution for the attachment and sale of debts. • (e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person, whether a party to the suit or not. • (f) summary procedure in suits for a debt or liquidated demand on a contract, and in suits by a landlord for the recovery of immovable property against a tenant whose term has expired. • (g) procedure by way of originating summons. • (h) consolidation of suits, appeals and other proceedings. • (i) delegation to a Registrar, Prothonotary, Master or other official of judicial, quasi-judicial and non-judicial duties. • (j) all forms, registers, books, entries and accounts necessary or desirable for the transaction of the business of Civil Courts. |
The list repays attention because it shows how much of modern practice sits on a rule-making power rather than on the Code itself. Garnishee orders, the consolidation of proceedings, and the delegation of routine judicial work to a Registrar all rest on clause (d), clause (h) and clause (i) respectively, and exist in the form each High Court has given them.
4. Sections 129 to 131: The Original Side
§ Section 129 (in substance) Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it, to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit; and nothing contained in the Code shall affect the validity of any such rules in force at its commencement. |
Basis | Section 122 | Section 129 |
|---|---|---|
Whose procedure | The High Court's own procedure and that of the civil courts subject to its superintendence | The High Court's own procedure on its ORIGINAL CIVIL JURISDICTION only |
The constraint | Section 128(1): not inconsistent with the body of the Code | Not inconsistent with the LETTERS PATENT or the law establishing the Court |
Relation to the Code | Subject to it | NOTWITHSTANDING anything in the Code |
Approval of the State Government | Required by Section 126 | Not required |
Publication | Section 127 | Section 131 |
Effect | The rule takes effect as if contained in the First Schedule | The rule has the force of law from publication or the date specified |
i. Section 130 confers a corresponding power on other High Courts as to matters other than procedure.
ii. Section 131 requires rules made under Section 129 or Section 130 to be published in the Official Gazette, and they have the force of law from publication or from such other date as may be specified.
5. How the Code and the Rules Relate
§ Four propositions to carry away The sections prevail. A rule inconsistent with the body of the Code is bad, by Section 128(1), except where a rule is made under Section 129 for the original side. The Orders have the force of the Code. By Section 121, a rule in the First Schedule takes effect as if enacted in the body of the Code, so it is not to be read down as a mere regulation. The Schedule is not uniform across India. Because each High Court may annul, alter or add to it under Section 122, the Orders as applied in one State may differ from those in another, and the local amendments must always be checked. The rule-making power is procedural. It may provide for matters relating to the procedure of Civil Courts; it cannot create rights, confer jurisdiction, or alter the substantive law. |
6. Landmark Points
- Section 121. The rules in the First Schedule have effect as if enacted in the body of the Code, until annulled or altered under this Part.
- Section 122. High Courts may, after previous publication, make rules regulating their own procedure and that of subordinate civil courts, and may annul, alter or add to the First Schedule.
- Sections 123 and 124. A Rule Committee is constituted and reports to the High Court, whose report must be considered before rules are made.
- Section 126. Rules under Section 122 or 125 require the previous approval of the State Government.
- Section 127. On publication in the Official Gazette, the rules have the same force as if contained in the First Schedule.
- Section 128(1). The ceiling: rules must not be inconsistent with the provisions in the body of the Code.
- Section 129. Notwithstanding anything in the Code, a High Court may make rules for its own original civil jurisdiction, not inconsistent with its Letters Patent.
7. Frequently Asked Questions
Can a High Court amend the Code?
It can amend the First Schedule, that is the Orders and Rules, under Section 122, by annulling, altering or adding to them. It cannot amend the body of the Code, the numbered sections, which only the legislature can change.
What force do the rules in the First Schedule have?
By Section 121 they have effect as if enacted in the body of the Code, until annulled or altered in accordance with Part X. They are not treated as inferior to the sections in force, only as changeable by a different authority.
What is the limit on the rule-making power?
Section 128(1): the rules shall not be inconsistent with the provisions in the body of the Code, and, subject to that, may provide for any matters relating to the procedure of civil courts.
What procedure must a High Court follow before making rules?
Previous publication under Section 122; consideration of the Rule Committee's report under Sections 123 and 124; the previous approval of the State Government under Section 126; and publication in the Official Gazette under Section 127.
How is Section 129 different?
It operates notwithstanding anything in the Code, applies only to the High Court's own original civil jurisdiction, requires consistency with the Letters Patent rather than with the Code, and needs no approval from the State Government.
Are the Orders the same across India?
Not necessarily. Because each High Court may annul, alter or add to the First Schedule under Section 122, the Orders as applied in one State may differ from those in another, and the local amendments must be checked.
What matters may the rules provide for?
Any matter relating to the procedure of civil courts, and in particular the ten matters in Section 128(2), including service by post, garnishee and charging orders, summary procedure, originating summons, consolidation, and delegation to a Registrar or Master.
8. Related Topics in This CPC Series
- Nature and Scheme of the CPC
- Central and State Amendments to the CPC
- Special Provisions Relating to High Courts: Sections 116 to 120
- Order XLVIII and Order XLIX: Process and Chartered High Courts