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Gopaldas Ganpatdas Vs. Tribhovan Jethiram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 8 of 1918
Judge
Reported inAIR1921Bom40; (1920)22BOMLR1420
AppellantGopaldas Ganpatdas
RespondentTribhovan Jethiram
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1903), section 48 - decree on mortgage-execution-period of twelve years jar execution-retrospective effect to section 48. ;section 48 of the civil procedure code of 1908, has u retrospective effect, and governs an application for the execution of a mortgage decree passed before that code came into force. hence, such an application, if presented twelve years after the date of the decree, is barred.;bimenswar sonamvl, v. jasodn lal chowilhry (1913) i.l.r. 40 cal. 704, followed.; kauusilla v. ishri singh (1910) i.l.r. 32 all. 499, dissented from. - - in the case of a mortgage-decree passed before act v of 1908 came into force, this decree-holder had a substantive right to enforce it till the end of time if he prosecuted his right with legal diligence, and..........in kaunsilla v. iuhri singh i. l. r (1910) all. 499. in that case it was held that the right to enforce execution of decree being a substantive right and not a mere matter of procedure, section 48 of the code of civil procedure, 1908, will not have the effect of barring execution of decrees which were passed prior to the enactment of that code and were, having regard to the code of civil procedure of 1882 and to the indian limitation act, 1877, alive at the time of its coining into force. the judgment refers to the terms of section 6 of the general clauses act, x of 1897, which enacts inter alia that unless a different intention appears in the repealing act, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment.....
Judgment:

Fawcett, J.

1. The plaintiffs-appellants obtained an Award Decree on the 5th September 1895 against defendants-respondents. By the terms of that decree, the defendants had to pay off the decretal sum by instalments of Rs. 400. It further provided that, should any one of the instalments remain unpaid, then the whole amount should be payable at once together with interest, and that if this was not paid the plaintiff was to recover the amount by sale of the whole of the immoveable and moveable estate mentioned in the plaint. The defendants were meanwhile debarred from alienating in any way the estate given in mortgage. This decree, as has been held by both the lower Courts, was made absolute in 1898. In 1914, the plaintiffs made an application for its execution. The defendants took the objection that the application was time-barred under Section 48 of the Civil Procedure Code, by reason of its having been presented more than twelve years after 1898 when the decree was made absolute. This contention has been upheld by the two lower Courts. In this appeal the learned pleader for the appellants has not contested the view that the decree was made absolute in 1898, but contends that the lower Courts erred in holding the application to be time-barred under Section 48, Civil Procedure Code. This contention is based on the argument that the repeal of the former Civil Procedure Code (Act XIV of 1882) did not affect the right of the plaintiffs to execute their decree in accordance with the law contained in Section 23O of that Code, i. e., without the restriction of twelve years' limitation from the date of decree, which applies to it under Section 48 of the Code of 1908. In support of this, reliance is placed on the decision of the Allahabad High Court in Kaunsilla v. Iuhri Singh I. L. R (1910) All. 499. In that case it was held that the right to enforce execution of decree being a substantive right and not a mere matter of procedure, Section 48 of the Code of Civil Procedure, 1908, will not have the effect of barring execution of decrees which were passed prior to the enactment of that Code and were, having regard to the Code of Civil Procedure of 1882 and to the Indian Limitation Act, 1877, alive at the time of its coining into force. The judgment refers to the terms of Section 6 of the General Clauses Act, X of 1897, which enacts inter alia that unless a different intention appears in the repealing Act, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment repealed, or affect any remedy in respect of any such right. In the case of a mortgage-decree passed before Act V of 1908 came into force, this decree-holder had a substantive right to enforce it till the end of time if he prosecuted his right with legal diligence, and Section 48 of the now Code should not be construed to have a retrospective operation affecting that right, unless such a construction appears very clearly in the terms of the Code or arises by necessary and distinct implication. On the other hand, the respondents' pleader cites Bissesswar Sonamut v. Jasoda Lal Chowdhry I. L. R (1913) Cal. 704, where Kaunsilla v. Ishri Singh was dissented from, and Section 48 of the new Code of 1908 was held to govern an application for the execution of a mortgage-decree, even though obtained before that Code came into force. Jenkins C.J. in the judgment in that case refers to Section 154 of the new Code as clearly contemplating a retrospective effect of the Code and an interference with rights acquired under the old Code. He also refers to Section 1, Clause (2), of the new Code as affording ample opportunity to all persons having rights under the old Code to enforce them before the new Code came into operation. It was accordingly held that 'a different intention', within the meaning of Section 6 of Act X of 1897, did appear in the Code and that an application for execution coming under the Code of 1908 could not be made in disregard of the express conditions of that Code contained in Section 48. We have, therefore to decide which of these two opposing views we should follow.

2. Now the provision in Section 48, Civil Procedure Code, which is under consideration, is one of limitation. It might for instance have been inserted in Article 17 J of the Indian Limitation Act XV of 1877 corresponding to Article 182 of the present Limitation Act, except that in form it is a limitation not of an application, but of the right to get a decree executed. Should, then, the general rule that no one has any vested interest in the course of procedure and that a legislative enactment presumably has a retrospective effect when it merely regulates practice and procedure, be applied in such a case? In Reg. v. Dorabji Balabhai (1874) 11 B.H.C. 119, it was laid down that 'an Act of Limitation, being a law of procedure, governs all proceedings to which its terms are applicable from the moment of its enactment, except so far as its operation is expressly excluded or postponed'. But in Khusalbhai v. Kabhai I. L. R (1881) Bom. 26 it was said (p. 29) that the proposition was somewhat too broadly staled in that case, and that 'thus general rule must admit of the qualification that, when, the retrospective application of a statute of limitation would destroy vested rights, or inflict such hardship or injustice as could not have been within the contemplation of the Legislature, then the statute is not, any more than any other law, to be construed retrospectively'. In support of that view a reference was made to Delhi and London Bank, Limited v. Orchard I. L. R (1877) Cal. 47., in which the Privy Council decided against the literal construction of Section 21 of Act XIV of 1859 as giving the Act an operation which would retrospectively deprive the creditor of a right that he had under the previous law, and being contrary to the intention of the Legislature. Similarly in Gujanan v. Waman (1910) 12 Bom. I.R. 881, Bowman J. expresses a doubt 'whether it is strictly accurate to say that the law of limitation is always a law of procedure, that is to say, a purely adjective law, for, amongst its other con-sequences, it certainly has the creation of rights by prescription and if those rights have vested in individuals under one law of limitation,' it cannot be 'seriously argued that they can be divested by the introduction of a new law of limitation.' On the other hand, in Gurupadapa Basapa v. Virbhadrapa Irsangapa I. L. R (1888) Bom. 459 it was held that the law of limitation applicable to proceedings in execution is not the law under which the suit was instituted, but the law in force at the date of the application for execution, in the absence of a legislative provision to the contrary. West J. in the judgment of the Court says: 'Acts of limitation, like other laws relating to procedure, apply immediately to all steps taken after they have come into force, except when some provision is made to the contrary. The reason of this is that every one seeking the aid of a Court seeks it on the terms from time to time imposed by the Legislature. He has not the privilege of making any application he likes in any way, and at any time he likes. Other interests than his are at stake, and the Courts are not to exercise their coercive power at his request over another person, except under such regulations as shall make their action compatible with the general welfare. They, accordingly, are commanded to act only in defined ways on applications which satisfy specified conditions.' This decision was followed in Shib Shankar Lal v. Soni Ram I. L. R (1909 ) All. 33 where it was said (at p. 43): 'The law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding unless there is a distinct provision to the contrary'. And this statement of the law was approved by the Privy Council on appeal in Soni Rain v. Kanhaiya Lal I.L.R. (1913) 35 All. 227, P.C., The question whether this decision of the Privy Council affected the ruling of the Calcutta High Court in Manjhoori Bibi v. Akel Mahumed (1913) 17 C.W.N. 889 was considered in Gopeshwar Pal v. Jiban Chandra Chandra I.L.R. (1914) Cal. 1125, The decision of the Full Bench in the latter case was that a special rule of limitation extended to under-raiyats by an amendment in 1908 of the 3rd Article of Schedule III of the Bengal Tenancy Act did not apply where the dispossession was in 1898 and the suit for recovery of possession was instituted on the 25th August 1908. Prior to that amendment, the Article in question applied only to occupancy-raiyats. The Full Bench held that the Privy Council judgment in Soni Ram's case I.L.R. (1913) All. 227. did not affect the decision in Manjhoori Bibi v. Akel Mahumed in regard to cases where the application of the amended law makes it impossible to exercise a vested right of suit. In the judgment the Court says that they could only construe the amendment as not applying to cases where its provisions could not be obeyed, and that 'There are thus two positions; where in accordance with its provisions a suit could be brought after the passing of the amendment, it may be that the amendment would apply, but where it could not, then the amendment would have no application'. If this test of possibility of compliance be applied to the present case, then I think Section 48 must be held to have a retrospective effect upon the plaintiffs' decree. For the twelve years laid down by Section 48 did not expire till 1910, and the plaintiffs had therefore about two years from the passing of the new Code for taking steps to get their decree executed by sale of the immoveable property. And even if the twelve years had expired prior to the 1st January 1909 when the Code came into force, they had the opportunity of taking steps to get the decree executed under the old law, between the date of the passing of the Code-21st March 1908-and its coming into force

3. Apart from the above considerations, there are, in my opinion, strong reasons for holding that Section 48 was intended to have immediate retrospective effect. In all the three prior Codes, the provisions governing the execution of decree and fixing time limits to applications for execution contained a special provision under which, notwithstanding anything contained in them, an application for execution could be made in accordance with the law previously in force for a period of three years from the passing of the Code. Thus Section 21 of Act XIV of 1859 provided that 'nothing in the preceding section (which lays down what may be called the three years rule as to an application for execution being made within three years of a prior application) shall apply to any judgment, decree or order in force at the time of passing of this Act, but process of execution may be issued, either within the time now limited by law for issuing process of execution thereon, or within three years next after the passing of this Act, whichever shall first expire'. It was this section which was construed in Delhi and London Bank, Limited v. Orchard I.L.R. (1877) Cal. 47. as meaning that notwithstanding anything in Section 20, process of execution might issue either within the time allowed by the law in force when the Act was passed, or within three years next after the passing of the Act, whichever should first expire. When the Code of 1877 was enacted the three years rule already mentioned was relegated to Article 179 of the Indian Limitation Act (XV of 1877) which came into force on the same date as the Procedure Code (Act X of 1877), and in Section 230 of the Code what may be called the twelve years' rule now contained in Section 48 was enacted. The last paragraph of Section 230 provides; 'Notwithstanding anything herein contained, proceedings may be taken to enforce any decree within three years after the passing of this Code, unless when the period prescribed for taking such proceedings by the law in force immediately before the passing of this Code shall have expired before the completion of the said three years'. This gave a suspensory period of three years within which a decree, which would otherwise be dead under the twelve years' rule might be executed. In Section 230 of the Code of 1882 the twelve years' rule was re-enacted, and the last paragraph of this section contains a provision in precisely the same words as that contained in the last paragraph of Section 230 of the previous Code. But Section 48 of the present Code contains no corresponding provision, although the provision contained in the previous Codes saving the case of the judgment-debtor by fraud or force preventing the execution of the decree within the period of twelve years, is reproduced with a slight change of language. This, to my mind, clearly shows that the Legislature did intend this section to have a retrospective effect in regard to decrees passed prior to the coming into force of the new Code. It is a case where the intention of the Legislature in this respect may legitimately be gathered from the history of the legislation on the subject: cf. Behari Lal v. Muhammad Muttaki I.L.R. (1898). All. 482,. and The Administrator General of Bengal v. Prem Lall Mullick (1894) I.L.R. 21 Cal. 732, 770. It is not a case where this aid to construction is illegitimate under the observat1ions of Lord Herschell in Bank of England v. Vaglino[1891] A.C. 107, 144 which were repeated with the approval of their Lordships of the Privy Council in Norendra Nath Sircar v. Kamalbasini Dasi I.L.R. (1896) 23 Cal. 563, P.C. for we are concerned with the history of the enactment, not for the purpose of departing from its ordinary meaning but for deciding the question whether the Legislature intended the enactment to have retrospective effect. Again, as pointed out in Bisseswar Sonamut v. Jasoda Lal Chowdhry I.L.R. (1913) Cal. 704 Section 154 provides an indication that the new Code contemplated a retrospective effect and interference with rights acquired under the old Code. Sub-section (2), Section 89 may also be referred to as a similar indication.

4. Furthermore it is, in my opinion, open to considerable question whether the plaintiffs can be said to have had a vested right to get the mortgage-decree executed without the restrictive twelve years' rule contained in a 230 of the Code of 1882. That section, like the corresponding section of the Code of 1877, applies the twelve years' rule to a decree 'for the payment of money or delivery of other property''. It was held by the Allahabad and Calcutta High Courts that a mortgage decree did not come under this category: Ram Charan Bhagat v. Sheobarat Rai (1894) I.L.R. 16 All. 418 and Fazil Howladar v. Krishna Bundhoo Roy (1897) I.L.R. 25 Cal. 580. But a different view was taken by the Madras High Court: Abdulla Sahib v. Doctor Oosman Sahib (1904) I.L.R. 28 Mad 224. I have not been able to find any reported rulings of the Bombay High Court upon this question, and, though to the best of my belief, the Calcutta view was the one generally adopted, the question was apparently an undecided one. If so, the plaintiffs can scarcely be said to have had a vested right of the kind alleged. In any case the Legislature in Section 48 of the new Code has plainly given effect to the view that a mortgage decree is a decree for the payment of money and has included such decrees in the terms of that section, The amendment of the law is thus little more than declaratory. As stated in Hardcastle on Statutory Law, 3rd Edition, p. 363: 'Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable. Acts of this kind, like judgments decide like cases pending when the judgments are given, but do not re-open decided cases'. See also Maxwell on the Interpretation of Statutes, 3rd Edition, p. 309 This, in my opinion, affords another reason for holding that Section 48 in this respect has a retrospective effect I think, therefore, we should follow the Calcutta ruling in preference to the Allahabad one. I am of opinion that the appellants contention fails and would dismiss the appeal with coats.

Norman Macleod, Kt., C.J.

5. I agree. It would have been better if the attention of holders of mortgage decrees had been drawn to the alteration made by Section 48 of the Code of 1908, so that they might have been able to realize that no fresh application for execution could be entertained after the expiry of twelve years from the date of their decrees.


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