Section 128 CPC - Matters for Which Rules May Provide
Section 128 of the Code of Civil Procedure, 1908 defines the subjects on which procedural rules for civil courts may be framed. Its central limitation is that such rules must remain consistent with the substantive provisions in the body of the Code.
Section 128 CPC - Statutory provision
The provision is titled "Matters for which rules may provide". The following reproduces the substance and full sequence of the statutory text supplied in the original article.
(1) 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.
(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely:-
(a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;
(b) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property, and the proceeds of such sale;
(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-
(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-
on a contract express or implied; or
on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or
on a trust; or
(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;
(g) procedure by way of originating summons;
(h) consolidation of suits, appeals and other proceedings;
(i) delegation to any Registrar, Prothonotary or Master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and
(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil Courts.
Meaning and scope of Section 128
Section 128(1) authorises procedural rules concerning the work of civil courts, but requires that those rules not be inconsistent with provisions in the body of the CPC. The power to make rules must therefore be exercised within the framework of the Code, rather than used to override it.
Section 128(2) identifies particular areas in which procedural rules may be framed. The words "without prejudice to the generality" mean the listed subjects illustrate the broader power under subsection (1); the list is not necessarily exhaustive.
Procedural matters covered by Section 128(2)
Service of court process and attached property
Clauses (a) and (b) concern service and proof of summonses, notices and other process, and the care, custody, charges and sale of livestock or other movable property while under attachment.
Counterclaims, garnishee orders and indemnity
Clauses (c), (d) and (e) allow rules addressing counterclaim procedure and valuation for jurisdiction, garnishee and charging orders, and claims by defendants for contribution or indemnity against other persons.
Summary procedure
Clause (f) covers specified money claims involving debts or liquidated demands arising from contracts, enactments, guarantees or trusts, and certain landlord-tenant claims for recovery of immovable property. These are enabling subjects for rule-making, not a statement that every such claim automatically qualifies for a particular summary procedure. The applicable court rules and provisions such as Order XXXVII must be checked.
Originating summons and consolidation
Clauses (g) and (h) concern proceedings begun by originating summons and the consolidation of suits, appeals or other proceedings, where applicable under the relevant court's rules.
Court officials, forms and records
Clauses (i) and (j) address the delegation of appropriate judicial, quasi-judicial and administrative duties to specified court officers, and the forms, registers, books and accounts used in civil-court business.
How Section 128 works with other CPC provisions
Section 122 CPC deals with the rule-making power of certain High Courts. Section 125 CPC addresses other High Courts. Section 126 CPC concerns prior government approval, while Section 127 CPC addresses publication and legal effect. Section 128 describes the matters for which the rules may provide.
For the legislation and amendments, consult the Code of Civil Procedure, 1908 on India Code. For a particular court, also consult its published procedural rules and relevant official gazette notifications, including any applicable State amendments.
Frequently asked questions
Can procedural rules contradict the CPC?
No. Section 128(1) expressly requires rules framed under this power to be consistent with the provisions in the body of the Code.
Is the list in Section 128(2) exhaustive?
No. Subsection (2) expressly preserves the general scope of subsection (1), subject to the Code's limitations.
Does Section 128 itself prescribe the procedure for every civil court?
No. It authorises rules on specified matters. The applicable procedural details depend on the CPC, relevant rules, amendments and the court concerned.
This article provides general information about the CPC and should be read with the applicable statutory text and court rules.