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Lakshmanrao Krishnaji Limaye Vs. Balkrishna Rangnath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1912)ILR36Bom617
AppellantLakshmanrao Krishnaji Limaye
RespondentBalkrishna Rangnath and ors.
Excerpt:
.....bond--attestation by only one witness--bond judicially found to be invalid and unenforceable--government notification--retrospective effect--exemption of certain districts from the operation of section 59 of the transfer of property act (iv of 1882)--subsequent suit to enforce the mortgage--res judicata--rights vested under decrees not affected. - [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...........decree of this court, of the 14th of august 1908.3. but it is contended for the plaintiff that the government notification takes his suit out of the principle of res judicata. that, however, is not a sound contention. it is true that the government notification exempted certain districts from the operation of section 59 of the transfer of property act with effect from the 1st of january 1893, and the present case comes from one of those districts. but the government notification cannot have a higher operation than a legislative enactment, and in the case of a legislative enactment, which repeals a previous law either partially or wholly, the principle is that it cannot affect vested rights acquired under decrees. that principle, enunciated by tindal, c.j. in kay v. goodwin (1830) 6 bing......
Judgment:

Narayan Chandavarkar, Acting C.J.

1. This second appeal raises the question of res judicata under the following circumstances. On the 8th of September 1893 defendants Nos. 2 and 3 mortgaged the property in dispute to the plaintiff. Some time after that, a creditor of the said defendants, who had obtained a money-decree against them, attached the property in execution and was about to bring it to sale in 1893, when the plaintiff applied to the Court for an order that the property should be sold in execution of the decree, subject to his, that is, the plaintiff's mortgage of the 8th of September 1893. In that miscellaneous proceeding the Subordinate Judge raised this issue : Had the plaintiff the mortgage lien claimed by him? And as the result of his investigation the Subordinate Judge found that the plaintiff's bond was invalid and unenforceable, because it was not attested by two witnesses, as required by Section 59 of the Transfer of Property Act. The plaintiff then brought a regular suit to get rid of the effect of the order passed by the Subordinate Judge in 'the miscellaneous proceeding. That was a suit for a declaration that the plaintiff's bond was valid according to law, and, therefore, enforceable. The suit was dismissed by the Subordinate Judge, but in appeal the District Judge held that the bond was valid and operative according to law, and, therefore, enforceable. There was a second appeal to this Court on the 14th of August 1908 and this Court reversed the District Court's decree and restored that of the Subordinate Judge, holding that the plaintiff's bond was void and therefore inoperative for -want of attestations as required by Section 59 of the Transfer of Property Act. The result of that litigation, therefore, was that the defendants acquired as against the plaintiff a vested right under the decree of this Court in Second Appeal, by which the plaintiff was held not entitled to set up his mortgage and bring the property to sale. The plaintiff, however, applied for a review of the decree of this Court on the ground that on the 24th of June 1908 Government had by a notification exempted certain districts, including the district of Poona, from the operation of Section 59 of the Transfer of Property Act and given that notification a retrospective effect from the 1st of January 1893. The Court having rejected the review application, the plaintiff brought the suit, which has led to the present second appeal, to enforce his mortgage.

2. Both the Courts below have held that the plaintiffs claim is res judicata by reason of the decree of this Court, of the 14th of August 1908.

3. But it is contended for the plaintiff that the Government Notification takes his suit out of the principle of res judicata. That, however, is not a sound contention. It is true that the Government Notification exempted certain districts from the operation of Section 59 of the Transfer of Property Act with effect from the 1st of January 1893, and the present case comes from one of those districts. But the Government Notification cannot have a higher operation than a legislative enactment, and in the case of a legislative enactment, which repeals a previous law either partially or wholly, the principle is that it cannot affect vested rights acquired under decrees. That principle, enunciated by Tindal, C.J. in Kay v. Goodwin (1830) 6 Bing. 576, has been followed recently by the Privy Council in Lemm v. Mitchell [1912] A.C. 400. Tindal C.J. said: 'I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law'. Citing Tindal C. J. with approval, their Lordships of the Judicial Committee of the Privy Council say in Lemm v. Mitchell [1912] A.C. 400 that explicit language on the part of the Legislature is necessary to warrant a Court 'in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting.'

4. Here the decree of this Court, of the 14th of August 1908, still subsists. It is not affected by the Government Notification although that notification had a retrospective effect. The notification could not abrogate rights which had been judicially ' declared and had become merged in decrees. On this ground the decree of the Court below must be confirmed with costs.


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