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2019 (5) TMI 1901 - SC - Indian LawsMaintainability of second appeal - formulation of a substantial question of law in the second appeal or not - sole contention advanced is that the regular second appeal has been decided without framing a question of law - Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 - HELD THAT:- It is no doubt true that by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the ‘Amendment Act’) and Section 100 of the Code of Civil Procedure, 1976 was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same. It was initially held in KULWANT KAUR & ORS. VERSUS GURDIAL SINGH MANN (DEAD) BY LRS & ORS. [2001 (3) TMI 1044 - SUPREME COURT] case that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the ‘Punjab Act’) which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. A Constitution Bench of this Court however in PANKAJAKSHI VERSUS CHANDRIKA [2016 (2) TMI 1063 - SUPREME COURT] opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list - The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect. The Constitution Bench’s decision not being brought to the notice of the Bench of this Court deciding the matters, they would not hold the field - Appeal dismissed.
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