Effect of repeal of a statute

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s understand effect of repeal of a statute.

Effect of repeal of a statute:

Society is never static but always dynamic and change is the supreme law of every society. To keep pace with this trend, every legislature responds to changing social, economic, political and other conditions through the instrumentality of enacting new laws or repealing the existing laws with reference to change in the society. In India, the parliament is competent, in its plenary powers, not only to introduce a new law but also to repeal it by another enactment or to revive or re-enact legislation which had already expired by lapse of time.

Meaning of repeal:

Repeal is the abrogation or destruction of law by legislative enactment. Substitution of one legal provision by another is in fact repeal.

The repeal of an enactment may be partial or total. It is total repeal when a statute is abrogated in its entirety and partial when there is abrogation or modification of a provision of a statute only. Repeal may be either express or implied. It is express when declared in direct terms and implied when the intention to repeal is inferred from subsequent contradictory or inconsistent legislation.

The meaning of the word ‘repeal’ is extended to be comprehensive enough to include amendment, omission, insertion, substitution, addition and re-enactment.

Effect of repeal under the General Clauses Act:

Whenever there is a repeal of a statute, the consequences laid down in section 6 of the General Clauses Act, 1897 shall follow unless a different intention can be presumed from the repealing statute. Section 6 of The General Clauses Act, 1897 is applicable whether it is repeal or amendment and there is no reason for giving any different effect to these two methods which achieve the same result.

A statute providing no fixed time for its duration is a perpetual statute. A perpetual statute is not perpetual in the sense that it cannot be repealed or amended by the legislature; it is perpetual in the sense that it is not decimated or abrogated by the expiry of time. As a result, whenever a perpetual statute is repealed, the effect as provided by sec. 6 of the General Clauses Act would follow.

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THE CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 1976

Code of Civil Procedure

ANNEXURE

THE CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 1976

(104 OF 1976)

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CHAPTER V

REPEAL AND SAVINGS

97. Repeal and savings.—(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897),—

(a) the amendment made to clause (2) of section 2 of the principal Act by section 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in section 47 and every such appeal shall be dealt with as if the said section 3 had not come into force;

(b) the provisions of section 20 of the principal Act, as amended by section 7 of this Act, shall not apply to or affect any suit pending immediately before the commencement of the said section 7; and every such suit shall be tried as if the said section 7 had not come into force;

(c) the provisions of section 21 of the principal Act, as amended by section 8 of this Act, shall not apply to or affect any suit pending immediately before the commencement of the said section 8; and every such suit shall be tried as if the said section 8 had not come into force;

(d) the provisions of section 25 of the principal Act, as substituted by section 11 of this Act, shall not apply to or affect any suit, appeal or other proceeding wherein any report has been made under the provisions of section 25 before the commencement of the said section 11; and every such suit, appeal or other proceeding shall be dealt with as if the said section 11 had not come into force;

(e) the provisions of section 34 of the principal Act, as amended by section 13 of this Act, shall not affect the rate at which interest may be allowed on a decree in any suit instituted before the commencement of the said section 13 and interest on a decree passed in such suit shall be ordered in accordance with the provisions of section 34 as they stood before the commencement of the said section 13 as if the said section 13 had not come into force;

(f) the provisions of section 35A of the principal Act, as amended by section 14 of this Act, shall not apply to or affect any proceedings for revision, pending immediately before the commencement of the said section 14 and every such proceedings shall be dealt with and disposed of as if the said section 14 had not come into force;

(g) the provisions of section 60 of the principal Act, as amended by section 23 of this Act, shall not apply to any attachment made before the commencement of the said section 23;

(h) the amendment of section 80 of the principal Act by section 27 of this Act shall not apply to or affect any suit instituted before the commencement of the said section 27; and every such suit shall be dealt with as if section 80 had not been amended by the said section 27;

(i) the provisions of section 82 of the principal Act, as amended by section 28 of this Act, shall not apply to or affect any decree passed against the Union of India or a State or, as the case may be, a public officer, before the commencement of the said section 28 or to the execution of any such decree; and every such decree or execution shall be dealt with as if the said section 28 had not come into force;

(j) the provisions of section 91 of the principal Act, as amended by section, 30 of this Act, shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said section 30; and every such suit, appeal or proceeding shall be disposed of as if the said section 30 had not come into force;

(k) the provisions of section 92 of the principal Act, as amended by section 31 of this Act, shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said section 31; and every such suit, appeal or proceeding shall be disposed of as if the said section 31 had not come into force;

(l) the provisions of section 96 of the principal Act, as amended by section 33 of this Act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of the said section 33; and every such appeal shall be dealt with as if the said section 33 had not come into force;

(m) the provisions of section 100 of the principal Act, as substituted by section 37 of this Act, shall not apply to or affect any appeal from an appellate decree or order which had been admitted, before the commencement of the said section 37, after hearing under rule 11 of Order XLI; and every such admitted appeal shall be dealt with as if the said section 37 had not come into force;

(n) section 100A, as inserted in the principal Act, by section 38 of this Act, shall not apply to or affect any appeal against the decision of a single Judge of a High Court under any Letter Patent which had been admitted before the commencement of the said section 38; and every such admitted appeal shall be disposed of as if the said section 38 had not come into force;

(o) the amendment of section 115 of the principal Act, by section 43 of this Act, shall not apply to or affect any proceeding for revision which had been admitted, after preliminary hearing, before the commencement of the said section 43; and every such proceeding for revision shall be disposed of as if the said section 43 had not come into force;

(p) the provisions of section 141 of the principal Act, as amended by section 47 of this Act, shall not apply to or affect any proceedings which is pending immediately before the commencement of the said section 47; and every such proceeding shall be dealt with as if the said section 47 had not come into force;

(q) the provisions of rules 31, 32, 48A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be, substituted or inserted by section 72 of this Act shall not apply to or affect —

(i) any attachment subsisting immediately before the commencement of the said section 72, or

(ii) any suit instituted before such commencement under rule 63 aforesaid to establish right to attached property or under rule 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said section 72 had not come into force;

(r) the provisions of rule 4 of Order XXII of the First Schedule, as substituted by section 73 of this Act shall not apply to any order of abatement made before the commencement of the said section 73;

(s) the amendment, as well as substitution, made in Order XXIII of the First Schedule by section 74 of this Act shall not apply to any suit or proceeding pending before the commencement of the said section 74;

(t) the provisions of rules 5A and 5B of Order XXVII, as inserted by section 76 of this Act, shall not apply to any suit, pending immediately before the commencement of the said section 76 against the Government or any public officer; and every such suit shall be dealt with as if the said section 76 had not come into force;

(u) the provisions of rules 1A, 2A, and 3 of Order XXVII A, as inserted or substituted, as the case may be, by section 77 of this Act shall not apply to or affect any suit which is pending before the commencement of the said section 77;

(v) rules 2A, 3A and 15 of Order XXXII of the First Schedule, as amended, or as the case may be, substituted by section 79 of this Act, shall not apply to a suit pending at the commencement of the said section 79 and every such suit shall be dealt with and disposed of as if the said section 79 had not come into force;

(w) the provisions of Order XXXIII of the First Schedule, as amended by section 81 of this Act, shall not apply to or affect any suit or proceeding pending before the commencement of the said section 81 for permission to sue as a pauper; and every such suit or proceeding shall be dealt with and disposed of as if the said section 81 had not come into force;

(x) the provisions of Order XXXVII of the First Schedule, as amended by section 84 of this Act, shall not apply to any suit pending before the commencement of the said section 84: and every such suit shall be dealt with and disposed of as if the said section 84 had not come into force;

(y) the provisions of Order XXXIX of the First Schedule, as amended by section 86 of this Act, shall not apply to or affect any injunction subsisting immediately before the commencement of the said section 86; and every such injunction and proceeding for dis-obedience of such injunction shall be dealt with as if the said section 86 had not come into force;

(z) the provisions of Order XLI of the First Schedule, as amended by section 87 of this Act, shall not apply to or affect any appeal pending immediately before the commencement of the said section 87; and every such appeal shall be disposed of as if the said section 87 had not come into force:

(za) the provisions of Order XLII of the First Schedule, as amended by section 88 of this Act, shall not apply to or affect any appeal from an appellate decree or order which had been admitted, before the commencement of the said section 88, after hearing under rule 11 of Order XLI; and every such admitted appeal shall be dealt with as if the said section 88 had not come into force;

(zb) the provisions of Order XLIII of the First Schedule, as amended by section 89 of this Act. shall not apply to any appeal against any order pending immediately before the commencement of the said section 89; and every such appeal shall be disposed of as if the said section 89 had not come into force;

(3) Save as otherwise provided in sub-section (2), the provision of the principal Act, as amended by this Act, shall apply to every suit, proceedings, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.

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Code of Civil Procedure

Section 115: Revision

 

Code of Civil Procedure 

 

115. Revision.—¹[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears—

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

²[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.]

³[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

⁴[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]

Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

Note: 1. S. 115 re-numbered as sub-section (1) by Act 104 of 1976, s. 43 (w.e.f 1-2-1977).

2. Subs. by Act 46 of 1999, s.12, for “proviso” (w.e.f. 1-7-2002).

3. Ins. by Act 104 of 1976, s. 43 (w.e.f 1-2-1977).

4. Ins. by Act 46 of 1999, s.12 (w.e.f. 1-7-2002).

 

Code of Civil Procedure 

Effect of amendment:

Earlier the remedy of final civil revision under Section 115 of the C.P.C. could have been availed of by the appellant herein but that remedy is not available to the appellant because of the amendment made in Section 115 of the C.P.C. by Amendment Act 46 of 1999 w.e.f. 01.07.2002.[1]

Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the trial court whether confirming, reversing or modifying the order of injunction granted by the trial court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of Section 115 of the CPC.[1]

 

 

List of Cases:

[1] Surya Dev Rai vs Ram Chander Rai & Ors [SC]