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Zaverchand Panaji Vs. Mayadevi Chimanlal Parikh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 231 of 1954
Judge
Reported in(1956)58BOMLR619
AppellantZaverchand Panaji
RespondentMayadevi Chimanlal Parikh
DispositionAppeal dismissed
Excerpt:
.....24 of bom. act.;section 24 of the bombay money-lenders act, 1946, empowers the court which has passed the decree to grant instalments. the court to which the decree is transferred for execution cannot exercise the powers to grant instalments under section 24 of the act.;bilimoria v. central bank of india [1943] a.i.r. nag. 340, f.b. referred to. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5)..........application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree passed against him, whether before or after the date on which this act comes into force, in respect of a loan, shall be paid in such number of instalments and subject to such conditions, and payable on such dates, as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit.the marginal note of the section is, 'power of court to direct payment of decretal amount by instalments.' the act seems to be modelled upon the central provinces money-lenders act, section 11 of which is as follows:-power to direct payment of decretal amount by instalments. the court may, at any time, on the application of a judgment-debtor, after notice to the.....
Judgment:

Bavdekar, J.

1. This is an appeal arising from an application for execution in which execution is going on before a Court to which it has been transferred. The judgment debtor made an application in that Court for instalments under Section 24 of the Bombay Money-lenders Act. That Court held that it had no power to grant the instalments, inasmuch as the powers under Section 24 of the Bombay Money-lenders Act could only be used by the Court which passed the decree. Hence this appeal.

2. Now, Section 24 of the Money-lenders Act runs as follows:

Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Court may, at any time, on application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree passed against him, whether before or after the date on which this Act comes into force, in respect of a loan, shall be paid in such number of instalments and subject to such conditions, and payable on such dates, as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit.

The marginal note of the section is, 'Power of Court to direct payment of decretal amount by instalments.' The Act seems to be modelled upon the Central Provinces Money-lenders Act, Section 11 of which is as follows:-

Power to direct payment of decretal amount by instalments. The Court may, at any time, on the application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree passed against him, whether before or after this Act conies into force, in respect of a loan shall be paid in such number of instalments and subject to such conditions on the dates fixed by it as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit.

That Act appears to have defined the words 'the Court,', but the Bombay Act does not define them. The meaning of the words 'the Court' is consequently left to be gathered from its dictionary meaning as modified by anything which there may be in the context. The previous sections, namely, Sections 21 to 23 apply to the Court which has passed the decree though Section 21 alone uses the words 'a Court', and it is contended on behalf of the respondents-creditors who rely upon the definite article that the words must be taken to refer to the Court which is referred to in Section 21 and which is impliedly intended even by Sections 22 and 23. It is contended secondly that the effect of grant of instalments is to vary the decree. Ordinarily the executing Court has got no power to vary the decree Which has been passed by the trial Court, and it will have to I execute the decree as it is. It is true that the executing Court has got all the powers of the Court which passed the decree, under Section 42 of the Code of Civil Procedure, but that is, when 'executing', and if the power under Section 24 of the Money-lenders Act cannot be said to be power of executing the decree, then the executing Court will ordinarily not have the power under Section 24. It is said, in the third instance, that if the intention was to clothe both the Courts which passed a decree and the Court to which a decree is transferred for execution with the power under 's. 24, the Legislature would have not left the matter to be argued and would have provided that both the Courts would have the power under Section 24. Finally it is contended that the words in Section 24 'notwithstanding anything contained in the Code of Civil Procedure, 1908', and the words '' after notice to the decree-holder'' suggest that the application which has got to be made is an application to the Court which passed the decree, and not to the executing Court.

3. Now, it is quite true that if we look at Sections 21, 23 and 24, the argument that the words 'the Court' in Section 24 have got reference to the Court which is referred to in Section 21 and which is implied in Section 22, is plausible enough. The definite article is usually intended to refer to a noun which has already been used before, and the words 'the Court' would ordinarily speaking, therefore, in the absence of a definition, be regarded as referring to the Court which has already been referred to. But these words find place also in other Bombay enactments. They find a place in one enactment, at any rate, in a place where it has got no reference to a Court which had already been referred to and which also specifically means or at any rate includes the Court to which a decree is transferred for execution. That enactment is Section 20 of the Dekkhan Agriculturists' Belief Act, where the words are:

The Court may at any time direct that the amount of any decree passed, whether before or after this Act comes into force, against an agriculturist, or the portion of the same which it directs under Section 19 to be paid, shall be paid by instalments with or without interest.

Sometimes consequently the Legislature does use the words not to indicate the Court which has already been referred to, but to mean that Court which is indicated by the words of the section in which the words are used. It must be conceded, however, that the words which are used in Section 24, namely, 'the Court', when taken with the fact that the Court which is referred to in the immediately preceding sections is the Court which passed the decree are in favour of the contention which has been advanced on behalf of the decree-holder. Secondly, there can be no doubt whatever that whether the Court to which the decree is transferred for execution has got the powers under Section 24 or not, the Court which passed the decree has got powers under those sections. That is indicated by the words 'after notice to the decree-holder' and also by the words 'notwithstanding anything contained in the Code of Civil Procedure, 1908'. In an application for execution the decree-holder would be before the Court. If in execution, the judgment-debtor makes an application for instalments under Section 24 of the Money-lenders Act, there would be no necessity of giving a notice to the decree-holder, because the decree-holder would be before the Court, and he would have notice of any application which is made by the judgment-debtor in the application for execution. Similarly, the words 'notwithstanding anything contained in the Code of Civil, Procedure, 1908' are obviously intended to resolve the conflict which arises between Section 24 and the provisions of Order XX, Rule 11, and probably also Order XX, Rule 3 of the Code of Civil Procedure. The former rule gives the power to the Court which passes a decree to grant instalments, but only at the time of the passing of the decree. The latter rule prevents a judgment which is once signed from being altered or added to, save as provided by Section 152 or review. The view has been taken that this section prevents the alteration of even a decree, but in any ease it is obvious that the words 'notwithstanding anything contained in the Code of Civil Procedure, 1908' have been put in order to avoid the conflict which would otherwise arise between Order XX, Rule 11, and Section 24 of the Bombay Moneylenders Act. They may in addition have been put in order to remove the conflict between Section 24 of the Bombay Money-lenders Act and Order XX, Rule 3. It is not, however, easy to understand what conflict these words have been intended to remove, in case what was contemplated was that the application which was to be made was only an application to the executing Court. It is true that an executing Court cannot vary the decree which it is executing, but that is not because the Code of Civil Procedure expressly so provides but because the only powers which the executing Court has arc the Powers which the Court which passed the decree has in executing it and even the Court which passed 'the decree' has no powers to vary it whether in execution of otherwise. It can' do so only under Section 152 or on review. A non-obstante clause is intended to remove the conflict which may arise between two express enactments. There is no conflict when one enactment confers a power which the other does not. It is obvious therefore that Section 24 in any case empowers the Court which passed the decree to grant instalments.

4. The only question which remains is whether the words include also the Court to which execution is transferred. Now, the principal argument of Mr. Shastry, who appears on behalf of the judgment-debtor, is that the words 'the Court' are very wide. In their ordinary sense they would include not only the Court which passed a decree, but also the Court to which the decree is transferred for execution, because both are Courts. Consequently in case it is contended that the words only include the Court which passed the decree, then there must be something in the language of the section itself which restricts their meaning. Now, that is obviously correct. But one thing which restricts the meaning of the word 'Court' is, as I have already mentioned, the definite article which indicates that what is contemplated is the Court which is referred to already, and the Court which has been referred to already is undoubtedly the Court which passed the decree. In the second instance, as was pointed out by their Lordships of the Nagpur High Court in Bilimoria v. Central Bank of India [1943] A.I.R. Nag. 340, F.B. ordinarily speaking an executing Court has not got power to alter or amend a decree, and if the Legislature intended to confer this power upon that Court one would expect it to use unmistakable language. That is especially so when by the same section it is intended to clothe the Court which passed the decree with the power to grant instalments. It seems obvious to me that in case it was contemplated that both the Courts should have the power, the Legislature would not have been content to use an expression like 'the Court' which, considering the context in which the words have been used, that is, they have been used in a section succeeding to sections in which only the trial Court has been referred to, are to say the least, ambiguous and clearer words would have been used to indicate that the Court to which the decree is transferred for execution also has got power to grant instalments.

5. It has got to be remembered, further, that it is not as if the Legislature has not got before it other enactments in which similar powers have been conferred. The Legislature had before it Section 20 of the Dekkhan Agriclturists' Relief Act, and though it is not an Act which was passed by that Legislature itself, it had got application to the Bombay State and it principally had application to that State. When Section 20 of that Act conferred power upon the executing Court to grant instalments, the words 'the Court' indeed were used; but the marginal note made it perfectly clear that this power can be used in execution. Having this enactment before it, in my view, if the Legislature had intended that the power to grant instalments should be possessed by the executing Court, it would not have rested with using the expression the Court.''

6. It is true that the executing Court has all the powers of the Court which passed the decree in executing it, but while Section 24 of the Bombay Money-lenders Act empowers the Court to grant instalments after it has passed a decree, it is unlike Section 20 of the Dekkhan Agriculturists' Relief Act in that it does not empower it to do so in execution. Instalments may be granted by a Court even when passing a decree and the power to grant instalments is not necessarily a power of execution. Section 42 of the Code of Civil Procedure does not, therefore, empower the Court to which a decree is transferred for execution to exercise the powers under Section 24 of the Bombay Money-lenders Act. The learned Judge before whom execution was going on was, therefore, quite right in holding that he had no power to grant instalments.

7. The appeal is, therefore, dismissed with costs.


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