Skip to content


Sarvothama Choorya Etc. Vs. G.M. Gopala Bhat Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petns. Nos. 1842, 2209 and 2521 of 1978
Judge
Reported inAIR1983Kant107; 1983(1)KarLJ123
ActsKarnataka Land Reforms Act, 1962 - Sections 42; Karnataka Land Reforms (Amendment) Act, 1974 - Sections 8, 91, 116 and 132; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantSarvothama Choorya Etc.
RespondentG.M. Gopala Bhat Etc.
Appellant AdvocateK. Jayaprakash Hegde, Adv. for ;P. Vishwanatha Shetty, Adv., ;P. Ganapathi Bhat and ;G.S. Visweshwara, Advs.
Respondent AdvocateK. Krishna Bhat, Adv.
Excerpt:
.....payment of the amount, the amount payable is restricted to only one year. this is contrary to the provisions of section 28 of the land acquisition act and it can be clearly characterised as a clerical error. therefore, the petitioner is entitled for correction of the decree as sought by him. further, the petitioner is entitled for interest at the rate of 15% p.a. from 20.03.1982 till the date of deposit of the amount which is made in the month of september 2002. - alteration in procedure is retrospective unless there is a good reason against it. the intention of the legislature is therefore clearly to the effect that all pending matters should be dealt with by the authority specified by the amended provisions of the act as from 1-3-1974, the date on which the amending act no. 42, the..........deal with the proceedings accordingly. (2) all applications, statements and proceedings (including execution proceedings and proceedings in appeal) under the principal act relating to resumption of land and pending before any court immediately before the date of commencement of this act shall not have any effect and shall abate; provided that applications or proceedings is respect of leases permitted by s. 5 of the principal act shall not so abate but shall stand transferred to the tahsildar or the concerned appellate authority as if they had been instituted or commenced before him or it. (3) all applications or proceedings other than those referred to in sub-section (2) which are required to be decided or disposed by the tahsildar or the tribunal specified in the principal act as.....
Judgment:

Malimath, J.

1. These three civil revision petitions have been referred to the Division Bench by the learned single Judge on the ground that they involve important question of jurisdiction in the matter of execution of orders made by courts under the then existing provisions of S. 42 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act).

2. The necessary facts for understanding the contentions urged in these cases may briefly be stated as follows:-

The respondents in these three cases who are the landlords applied to the court under S. 42 of the Act as it then stood for recovery of arrears of rent in respect of lands leased to the petitioners. In the year 1972, the court had made orders in favour of the contesting respondents-landlords under Section 42 of the Act as it then stood directing that the specified amounts of rent be paid by the respective petitioners-tenants. There-after, the respondents-decree-holders filed execution case Nos. 273, 314 and 463 of 1977 respectively in the court of the Munsiff, Puttur, to execute the orders and to recover the decretal amounts. Before the learned Munsiff, a preliminary objection was raised on behalf of the petitioners to the effect that the court under Section. 42 of the Act. It became possible for the judgment-debtors to raise this contention having regard to the amendments that were effected to the Act in the mean-while. On the date on which the orders were made under S. 42 of the Act as it then stood, it is not disputed and cannot be disputed that the court, as defined under the Act, namely, the court of the Munsiff, had jurisdiction to make orders regarding recovery of rent from the concerned tenants. Orders made under Section 42 of the Act as it then stood could have been executed as decrees of civil courts in accordance with Section 116 of the Act as it then stood. It is therefore clear that in the year 1972 when the decree-holders obtained orders in their favour under S. 42 of the Act. In their favour under S. 42 of the Act they were entitled to execute the said orders as if they were decrees of the court by approaching the court of the munsiff by for the purpose as provided by Section 116 of the Act as it then stood. The decree holders, did not execute the orders before Section 116 came to be substituted. By Karnataka Act No. 1 of 1974 extensive amendments were effected to the provisions of the Act. For the word 'court' occurring in Section 42, the word 'Tahsildar' that became the suit it is the Tahsildar that became the authority competent to make orders in the matter of recovery of rent. Section 116 of the Act regarding execution of orders was substituted by the following section:

'116. Execution of orders - (1) any sum the payment of which has been directed by an order of the Tahsildar or other authority shall be recoverable from the persons ordered to pay as an arrear of land revenue.

(2) An order of the Tahsildar or other authority awarding possession or restoring the possession or use of any land shall be executed in the same manner as an order passed by a revenue officer under the Karnataka Land Revenue Act, 1964'.

Thus. execution of orders for payment of money made by the Tahsildar or other authority has to be made in the same manner in which the arrears of land revenue is recoverable. There are detailed provisions regulating recovery of arrears of land revenue under the Karnataka Land Revenue Act, 1964. It is in the light of the substitution of Section 116 that a preliminary objection was raised to the effect that the order made by the Court under Section 42 of the Act as it then stood could not now be executed in the court of the Munsiff. The learned Munsiff has overruled the objection and recorded a finding to the effect that the court of Munsiff has jurisdiction to execute the order. The learned Munsiff has taken the view that the orders are in the nature of decrees they having been passed by the Civil Court and the civil court has jurisdiction under the Code of Civil Procedure for executing its own decrees. It is the said finding of the learned Munsiff that is challenged in these three revision petitions.

3. Section 42 of the Act prescribes the procedure for recovery of rent and designates the authority which is competent to make appropriate orders regarding payment of rent. Section 116 is a general provision providing for execution of all orders in regard to restoration of possession. It is therefore clear that express provision have been enacted in the Act providing special procedure in the matter of recovering of rent and in the matter of enforcing or executing such orders.

4. It was contended on behalf of the petitioners that orders made under S. 42 of the Act could only be executed in accordance with the provisions of Section 116 of the Act as substituted by Act No. 1 of 1974. If the execution of the orders in question is required to be made under the newly substituted S. 116 of the Act, it is obvious that the decree holders have to approach the authorities under the Karnataka Land Revenue Act. The contention on behalf of the respondents however is that the provisions of Section 116 as it stood on the date on which the orders were made under S. 42 that should govern execution of these orders. As already noticed, before the substitution of S. 116 by Act NO. 1 of 1974, the orders made by the Court under S. 42 could be executed as if they were decrees of the Civil Courts by the Court as defined under the Act.

5. It cannot be disputed that S. 116 deals with the procedural matter, in that, it prescribes the authority and the procedure in the matter of enforcing or executing the orders regarding payment of money and orders regarding possession made by the concerned authorities under the Act. No person has a vested right in any course of procedure. Alteration in procedure is retrospective unless there is a good reason against it.

6. Our attention was drawn to the decision of this Court in the case of Sha Chunnilal v. T. Gurishantappa ((1972) (1) Mys LJ 327) wherein it is laid down that when an existing section is substituted by a new section , the interference is that the Legislature intended that the substituted provision should be deemed to be part of the Act from the very inception. It is therefore clear that the provisions of the Section 116 must be regarded as having been part of the Act from its very inception particularly having regard to the fact that there is no repugnancy or inconsistency between the old and the new Section 116 has been pointed out to us. It will not lead to any absurdity or manifestly unjust or unreasonable results if orders made under Section 42 of the Act by the Court as defined in the Act, before coming into force of the Act No.1 of 1974, are executed or enforced in accordance with the newly substituted provision of S. 116 of the Act. No hardship or injustice will be caused to any of the parties as all that happens by the making use of the newly substituted provision of S. 116 of the Act is that the parties instead of approaching the Civil Court for executing the orders will be required to approach the authorities constituted under the Karnataka Land Revenue Act to recover money as if they were arrears of land revenue. The newly substituted section which brings about alteration only in procedural matters has retrospective effect and governs execution or enforcement of orders made under S. 42 before its substitution.

7. Section 91 of Karnataka Act No. 1 of 1974 as amended by Act 31 of 1974 lends further support to our above conclusion. The said section reads as follows:

'91 Disposal of pending proceedings - (1) Notwithstanding anything contained in the principal Act or in the Mysore General Clauses Act, 1899, the provisions of the principal Act amended by this Act shall be applicable to all proceedings commenced before the date of commencement of this Act and pending before the Court, Tribunal or other authority as if the principal Act as amended by this Act was in force when the right accrued or liability was incurred and every Court, Tribunal or other authority shall deal with the proceedings accordingly.

(2) All applications, statements and proceedings (including execution proceedings and proceedings in appeal) under the principal Act relating to resumption of land and pending before any Court immediately before the date of commencement of this Act shall not have any effect and shall abate;

Provided that applications or proceedings is respect of leases permitted by S. 5 of the principal Act shall not so abate but shall stand transferred to the Tahsildar or the concerned Appellate authority as if they had been instituted or commenced before him or it.

(3) All applications or proceedings other than those referred to in sub-section (2) which are required to be decided or disposed by the Tahsildar or the Tribunal specified in the principal Act as amended by the Act,-

(a) pending before any Munsiff court immediately before the date of commencement of this Act shall with effect from that date stand transferred to the Tahsildar or the Tribunal , as the case may be, and shall be disposed of by him or it as if they had been instituted or commenced before him or it;

(b) having been disposed of by the Munsiff Court, or pending in appeal or revision, such appeal or revision shall abate without prejudice to the questions involved in the applications or proceedings giving rise to such appeal or revision, being commenced afresh before the Tahsildar or the Tribunal, as the case may be, as if the amendments made by this Act to the principal Act were in force at the time the right for making such applications or commencing such proceedings accrued.'

It is clear from the provisions of Section 91 that all pending matters before the Court, Tribunal or other authorities are required to be disposed of as from the date Act No. 1 of 1974 came into force as it the amended Act was in force when the right accrued or the liability was incurred. It is therefore clear that an application filed under old S. 42 was pending before the Court on 1-3-1974 for recovery of arrears of rent, as such applications are required to be disposed of by the Tahsildar under the amended provisions of S. 42 of the Act, the aforesaid pending proceeding would stand transferred to the Tahsildar and disposed of by him having regard to the express provisions contained in Section 91(3)(b) of the Act. The intention of the Legislature is therefore clearly to the effect that all pending matters should be dealt with by the authority specified by the amended provisions of the Act as from 1-3-1974, the date on which the amending Act No. 1 of 1974 came into force. If such is the position in regard to pending proceedings how can it be said that applications filed after 1-3-1974 have to be dealt with in accordance with old provisions. The scheme of Section 91 of the Act which no doubt applies only to pending proceedings, does indicate the intention of the Legislature that with effect from 1-3-1974 all such proceedings should be governed by the amended provisions of the Act.

8. It was also contended on behalf of the petitioners that Section 8 of the Act having been substituted by Act No.1 of 1974, the determination of the rental amount payable by the petitioners is required to be done in accordance with the newly substituted Section 8. Section before its substitution by Act No.1 of 1974 provided that subject to the provisions of the Act and notwithstanding any law, custom, usage, agreement or the decree or order of the Court to the contrary, the rent payable by a tenant shall be paid annually and that the same shall not exceed one-forth of the gross produce or its value in cashing the case of land, possessing facilities for assured irrigation from a tank or a river channel, and one-fifth of the gross produce or its value in cash in case of any other land. The newly substituted section prescribed that the annual rent payable shall be ten times the aggregate of the land revenue and water rate, if any, payable in respect of the land. It was contended that the order regarding payment under Section 42 of the Act was made by the Court in the year 1972 applying the then existing provisions of Section 8. If the newly substituted S. 8 is applicable, it was contended that the order already made under S. 42 applying the newly substituted provision of Section 8 of the Act. The order regarding the payment of arrears of rent made under S. 42 of the Act in the year 1972 has become final and conclusive before S. 8 was substituted by Act No. 1 of 1974. The question of applying the provisions of S. 8 arises only when the question of determination of the amount of rent payable arises. The orders having been made under S. 42 of the Act, the amount payable under those orders by the judgment - debtors has to be regarded as decretal debt. What remains to be done is to execute and recover the decretal amount. The provision to be invoked for that purpose is S. 116 of the Act. The question of applying S. 8 would arise in proceedings under S. 42. As the orders under S. 42 have become final and conclusive before 1-3-1974, the question of applying the new provisions of S. 8 of the Act does not arise in these cases.

9. Dealing with the provisions of S. 133 of the Act as amended by the Act No.1 of 1974, a Full Bench of this Court has in the case of K. Ramaiah v. K. G. Basappa : AIR1980Kant107 laid down that if the decision regarding tenancy had become final before Act No. of 1974 came into force, the said decision is not required to be decided afresh in accordance with the amended provisions of the Act. For coming to the conclusion, the Full Bench placed reliance on Section 91 of Act No. 1 of 1974 and observed that as the provision applied only to pending proceedings, it was not the intention of the Legislature to reopen decisions which have become final and conclusive before the Karnataka Act No. 1 of 1974 came into force. It is therefore not possible to accede to the contention of the learned counsel for the petitioners that the orders of the Court rendered under S. 42 of the Act regarding payment of arrears of rent have now become inexecutable having regard to the newly substituted provision of S. 8 of the Act. In our opinion those orders have become final and conclusive and can be executed and enforced in accordance with the provisions of S. 116 of the Act as substituted by Karnataka Act No. 1 of 1974.

10. As express provision is made in the Act creating a special forum for execution of the orders made under S. 42, the learned Munsiff was clearly in error in taking the view that the orders under S. 42, have been made by the Civil Court, the same could be executed by the Civil Court under the relevant provisions of the Code of Civil Procedure. As a special forum has been created and as the jurisdiction of the Civil Court in all such matters has been specifically excluded by S. 132 of the Act, orders made under Section 42 can be executed only by resorting to the provision of the newly substituted S. 116 of the Act.

11. As the court of Munsiff has no jurisdiction to entertain the applications for execution, the execution petitions presented by the respective landlords have to be returned to them for presenting the same before the appropriate authorities functioning under the Land Revenue Act for enforcing the orders made under S. 42 as required by the provisions of S. 116 of the Act.

12. For the reasons stated above these revision petitions, are allowed. The findings of the learned Munsiff, Puttur, are set aside. The court of first instance as directed to return the applications to execution to the respective decree-holders for presenting the same to the appropriate authority in accordance with law. In the circumstances, we direct the parties to bear their respective costs in all these cases.

13. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //