Section 128 — Matters for which rules may provide
The breadth of the rule-making power — and its outer wall. The rules must be not inconsistent with the body of the Code; subject to that, they may cover any matter of civil-court procedure (1). Sub-section (2) then lists, by way of example, ten such subjects — from service of summons and summary suits to garnishee orders, originating summons, consolidation and court forms.
How to read Section 128
Any procedure matter (1)
Subject to consistency with the Code, the rules may provide for any matter relating to the procedure of Civil Courts — a broad, general power.
The outer wall
But they must be not inconsistent with the body of the Code (the sections) — rules cannot override what a section lays down.
Ten illustrations (2)
Without limiting (1), sub-section (2) lists (a)–(j) — concrete subjects the rules may regulate, by way of example.
The bare Act
(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:—
→ Sub-s.(1) is the general power (any civil-procedure matter, bounded by consistency with the Code); sub-s.(2) is illustrative (“without prejudice to the generality”) — the listed subjects are now worked out in the First Schedule Orders (e.g. Order V service, Order XXXVII summary suits, Order XXI execution).
Note. § 128 stands as in the Code. The “not inconsistent with the body of this Code” limit means a rule cannot defeat a section; within that wall the rule-making power is wide.
Key terms decoded
A rule must not conflict with a section. Where rule and section clash, the section prevails — the outer wall of the power.
The list in (2) does not cut down the general power in (1) — it merely gives examples; the power is wider than the list.
A cross-claim by the defendant against the plaintiff, tried in the same suit — its procedure and valuation may be ruled on.
Garnishee: attaching a debt the JD is owed by a third party. Charging order: charging the JD’s property/securities — modes of execution against debts.
Where the defendant says a third party must share or bear the liability — the third-party procedure.
A fast-track for clear debt/liquidated-demand suits, and for a landlord’s recovery of property — now Order XXXVII.
Starting a matter by summons (not a full plaint) — for limited questions, without a regular suit.
Letting a court officer (Registrar, Prothonotary, Master) do judicial, quasi-judicial or non-judicial work — to lighten the judges’ load.
The picture — a wide power within one wall
§ 128 marks the scope of the rule-making power: one wall (no inconsistency with the sections) and an open field within it (any matter of civil procedure). The ten lettered heads of (2) are signposts, not limits — and they are where much of the working Code, the First Schedule Orders, comes from.
Part by part — the two sub-sections
Sub-section (1) sets both the limit and the reach of the rule-making power: a rule may not be inconsistent with the Code’s sections, but, kept within that, it may govern any matter of civil-court procedure.
Such rules shall be not inconsistent with the provisions in the body of this Code…
A rule is subordinate to a section. Where a rule and a section conflict, the section governs — the rules cannot defeat what the body of the Code lays down.
…but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.
Within that wall the power is broad and general — it reaches any matter of civil-court procedure (the “how”), not substantive rights (the “what”).
This single line is why the First Schedule Orders can be amended and expanded over time (§ 122) without touching the body of the Code — and why no Order rule can stand against a section.
Sub-section (2) names ten heads — “without prejudice to the generality” of (1). They group into four families: getting process & records right, handling attached property and debts, shaping the forms a suit can take, and running the court’s own machinery.
…without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following…
The list illustrates, it does not confine. A matter outside (a)–(j) is still within the power if it is a matter of civil procedure under (1).
Service of summonses, notices and processes — by post or otherwise, generally or in specified areas — and the proof of such service. → now Order V.
Custody & sale of attached live-stock and movable property: maintenance, the fees for it, the sale and the proceeds. → execution rules, Order XXI.
Procedure in suits by way of counterclaim, and the valuation of such suits for jurisdiction. → Order VIII.
Garnishee and charging orders — in addition to, or instead of, attaching and selling debts. A way to reach a debt owed to the judgment-debtor.
Where the defendant claims contribution or indemnity over against any person — party to the suit or not. The third-party procedure.
Summary procedure — (i) suits to recover a debt or liquidated demand (on a contract, an enactment, a guarantee or a trust); (ii) a landlord’s recovery of immovable property from a tenant whose term has ended, been determined, or forfeited. → now Order XXXVII.
Procedure by way of originating summons — beginning a limited matter by summons rather than a full plaint.
Consolidation of suits, appeals and other proceedings — trying related matters together.
Delegation to a Registrar, Prothonotary, Master or other officer of judicial, quasi-judicial and non-judicial duties — sharing the court’s workload.
All forms, registers, books, entries and accounts needed or desirable for the business of Civil Courts — the court’s record-keeping.
How the two sub-sections flow
From the wall → the open field → the worked-out Orders
Connected provisions
Section 128 maps the scope of the rule-making power exercised under § 122/§ 125 — bounded by consistency with the Code’s body. The rules it authorises are the First Schedule Orders (force by § 121), made after the Committee’s report (§ 124), the Government’s approval (§ 126) and publication (§ 127).