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Bakor Moti Pagi Vs. Ishvar Moti Thakor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 298 of 1934
Judge
Reported inAIR1935Bom257; (1935)37BOMLR372
AppellantBakor Moti Pagi
Respondentishvar Moti Thakor
Excerpt:
.....1879 :-;that taking the case as governed by section 13(c) before its amendment, the promissory note was void as to rs. 75 and interest thereon, but valid as to rs. 126 and interest.;bhagabai v. narayan (1907) i.l.r. 31 bom. 552 : s.c. 9 bom. l.r. 950 followed.; dhanram v. ganpat (1902) i.l.r. 27 bom. 96 : s.c. 4 bom. l.r. 872, not followed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50%..........under the decree the rate was six per cent. the first defence set up is that the promissory note is void under section 13, clause (c), of the dekkhan agriculturists' relief act. at the time when the suit was filed, section 13, clause (c), provided in effect that when the court inquires into the history and merits of a case under section 12, it shall open the account between the parties from the commencement of the transactions, and in taking that account 'in the account of principal there shall not be debited to the debtor any money which he may have agreed to pay in contravention of section 257a of the code of civil procedure'. that refers to section 257a of the old code of civil procedure, which has itself been repealed. but it was held by this court in trimbak kashiram v. abaji.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a revision application under Section 115 of the Civil Procedure Code, which raises two points of law. The plaintiff sued on a promissory note for Rs. 201, of which Rs. 75 was due under a decree which he had obtained, and the balance of Rs. 126 was due by other means which had nothing to do with the subject-matter of the decree. The promissory note provided for payment of interest at twelve per cent., although under the decree the rate was six per cent. The first defence set up is that the promissory note is void under Section 13, Clause (c), of the Dekkhan Agriculturists' Relief Act. At the time when the suit was filed, Section 13, Clause (c), provided in effect that when the Court inquires into the history and merits of a case under Section 12, it shall open the account between the parties from the commencement of the transactions, and in taking that account 'in the account of principal there shall not be debited to the debtor any money which he may have agreed to pay in contravention of section 257A of the Code of Civil Procedure'. That refers to Section 257A of the old Code of Civil Procedure, which has itself been repealed. But it was held by this Court in Trimbak Kashiram v. Abaji I.L.R. (1911) 35 Bom. 307 : 13 Bom. L.R. 508 that the repeal of Section 257A of the Civil Procedure Code, 1882, did not affect the application of Section 13, Clause (c), of the Dekkhan Agriculturists' Relief Act. Now Section 257A, of which the second paragraph is relevant, provides that every agreement for the satisfaction of a judgment-debt, which provides for the payment, directly or indirectly, of ' any sum in excess of the sum due' or to accrue due under the decree, shall be void unless made with the sanction therein mentioned. I think that the words 'any sum in excess of the sum due' must mean, in excess of the sum due in respect of the judgment. That is to say, if you have a decree or a judgment for Rs. 100, any agreement for discharge of the decree by payment of something in excess of the Rs. 100 is void. But where an agreement includes not only the amount due under the judgment, but also a sum due aliunde, I do not think that the section was intended to strike at the latter sum. Reading that section alone as applicable to the facts of the present case I should say it strikes at this promissory note so far as it relates to Rs. 75 due under the decree, but leaves untouched the Rs. 126 which were not due under the decree, However, there are authorities of this Court which create a certain amount of difficulty. In Dhanram v. Ganpat I.L.R. (1902) 27 Bom. 96 : 4 Bom. L.R. 872 there was an agreement to pay a sum composed of Rs. 2,370, the amount due under a decree, and of Rs. 59, due under a separate advance, and it was held in that case that the whole agreement was void under Section 257A of the Civil Procedure Code. But the Court purported to follow the full bench case of Heera Nema v. Pestonji I.L.R. (1898) 22 Bom. 693 which did not deal with this point; All that the full bench case decided was that the agreement was void as to the whole debt, and not merely as to the excess beyond the amount due on the decree. Then the matter came before this Court in Bhagabai v. Narayan I.L.R. (1907) 31 Bom. 552 : 9 Bom. L.R. 950 and in that case Dhanram v. Ganpat was cited, but the Court there came to the conclusion that the agreement for payment, which in that case was made up of amounts due under a decree and amounts due independently, was only void as to the amounts duel under the decree, which, as I have said, seems to me the right construction of Section 257A. We were referred to an unreported decision of this Court, Mahant Gaibu v. Indrasa Kasturchand (1934) F.A. No. 215 of 1931 decided by Murphy and Sen JJ. on October 12 1934 (Unrep.), in which Bhagabai v. Narayan does not appear to have been cited, and in that case the Court followed Dhanram v. Ganpat. I have no doubt that if Bhagabai v. Narayan had been cited to the Court, they would not have followed Dhanram v. Ganpat, and I think we ought to follow Bhagabai v. Narayan, which was a considered opinion of the Court on the precise point. Therefore, in my opinion, assuming that Section 13, Clause (c), applies in the form in which it existed at the time when this suit was started, the promissory note is void as to Rs. 75 and interest thereon, but valid as to Rs. 126 and interest, and that was the view of the learned Judge in the lower appellate Court. But he was of opinion that as Section 13, Clause (c), had been amended after the institution of this suit, the case was governed by the amended section. The amended section provides that 'in the account of principal there shall not be debited to the debtor any sum in excess of a sum due or to accrue due under a decree which the debtor may have agreed directly or indirectly to pay in pursuance of any agreement relating to the satisfaction of the said decree', and on that basis the Judge allowed the whole claim of the plaintiff. The general rule is well-established, and embodied in Section 6 of the General Clauses Act, that an amendment of an Act of the Legislature during the currency of a suit is irrelevant, and the rights of the parties are governed by the Act as it existed at the time when the suit was started. Mr. J. C. Shah has argued that that principle does not apply to the Dekkhan Agriculturists' Relief Act, which affects the status of the defendant, and he contends that if the defendant sets up, as he may do at any time, the status of an agriculturist, it is at that time that his rights under the Act have to be determined. In the present case the status of agriculturist was asserted at the earliest opportunity, that is to say, in the written statement, but it cannot be said that the amendment of Section 13, Clause (c), in itself in any way affects status. It merely deals with the sum which is to be allowed in taking the account between the parties, and I see no reason, therefore, in this case for departing from the ordinary rule to which I have referred. I think, therefore, the case is governed by the provisions of Section 13, Clause (c), as they existed at the date when the suit was instituted. On that basis the application will be allowed as to Rs. 75 and interest thereon. Plaintiff will get costs on the amount allowed in both the lower Courts. No order as to costs of this application.

N.J. Wadia, J.

2. I agree.


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