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Raja Reddy Vs. Anusuyamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 55 of 1977
Judge
Reported inAIR1977AP342
ActsCode of Civil Procedure (CPC), 1908 - Sections 58; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(2)
AppellantRaja Reddy
RespondentAnusuyamma and anr.
Appellant AdvocateB. Jagannadha Sastry, Adv.
Respondent AdvocateV. Ramaseshamma, Adv.
Excerpt:
civil - retrospective operation - section 58 of code of civil procedure, 1908 and section 97 (2) of code of civil procedure (amendment) act, 1976 - arrest order was passed against appellant for not paying decreetal amount - subsequently code was amended which reduced maximum period of detention in execution of decree from of six months to three months - whether amendment had retrospective operation and would apply to cases where arrest order had been passed before amendment - proceedings for arrest must be deemed to be continuing and pending as appeals were preferred against order of arrest - in absence of clear indication either from subject matter or wordings of statute retrospectivity should not be inferred so as to affect vested rights - there is no vested right in procedure -..........of the appellant.6. sri jagannadha sastry further submitted that under the provisions of the civil procedure code as amended by act 104/76 the appellant could not be put in civil prison for more than 3 months. the order of the executing court directing arrest was made on 20th april, 1976 and the appellants has been in prison in pursuance of the order from 24-11-1976 (he having obtained stay upto that date). now that more than 3 months have spent by him in prison, this court should direct that he should be released.7. with regard to the second submission, smt. ramaseshamma, the learned counsel for the respondents, contended that the order of arrest was made on 20th april, 1976 and the amended civil procedure code is not applicable to the case where the order had been passed long.....
Judgment:

Alladi Kuppuswami, J.

1. This appeal is directed against the judgment of Muktadar, j. dismissing the Appeal No. 282 of 1976 filed against the order of the Ist Additional Judge, City Civil Court, Hyderabad allowing E. P. 4/75 in O. S. 507/70 on the file of that Court.

2. The respondents herein, who are the wife and daughter of the appellants, filed that suit for recovery of maintenance and for other reliefs against the appellants and obtained a decree. The Court below awarded maintenance to the first respondent at Rs. 100/- per month and to the 2nd respondent at Rs. 75/- per month until she is married. The appellants also was directed to pay Rs. 5,000/- to the first respondent for the marriage expenses of the 2nd respondent. Items 1 to 3 of the plaint second schedule were to stand charged for the payment of the decree amount.

3. Alleging that the appellants was in possession and ownership of about 18 1/2 acres of land from which he was deriving a substantial income of nearly Rs. 3,500/-; that he was also a Head Constable earning the salary of Rs. 300/- per month and that in spite of the fact that he had the means to pay the decree amount, he was not doing so, the first respondent filed the execution petition, praying for the arrest of the appellants. The appellants resisted the application stating that he was only getting Rs. 600/- per year as income from the land and only Rs. 200/- per month as an employee in the Excise Department and he had a father, a widowed sister and her son to maintain. Therefore, it could not be said that he had means to pay the decree amount and he was wilfully evading payment. The Court below did not accept the defendant's case and found that he was getting a salary of Rs. 300/- per month and a net income of Rs. 3,500/- per year from the lands. As he did not pay the decretal amount or a substantial portion thereof, the Court below ordered the arrest of the appellants.

4. The appellants preferred C. M. A. 282/76 against the said order. Muktadar, J. agreed with the finding of the Court below that the appellants was getting a net income of about Rs. 3,500/- from his lands and a salary of Rs. 300/- per month as a Head Constable. He also agreed that there was no evidence to show that he was maintaining his father or the widowed sister apart from the fact that he was not bound to maintain her. He therefore affirmed the judgment of the lower Court and dismissed the appeal. The judgment-debtors has preferred this appeal against the judgment of Muktadar, J.

5. Sri Jagannadha Sastry, the learned counsel for the appellants, contended that no case was made out for directing the arrest of the appellants. He submitted that a charge was created in respect of all the properties belonging to the appellants for the payment of the decretal amount and in those circumstances he was not in a position to sell the properties. The property did not yield more than Rs. 600/- per year as income. Further, subsequent to the order of the lower Court, departmental action was taken against him and he was placed under suspension and he is therefore being paid only a fraction of his salary as subsistence allowance. The appellants had made an offer in the lower Court itself that the petitioner may take possession of 3 acres and odd of the land and cultivate it herself and derive income therefrom and adjust the income towards the maintenance due to her and the daughter. During the course of the arguments Jagannadha Sastry went further and said that his client was willing to put the 1st respondent in possession not only of the 3 acres of land but of the entire land and the respondents may appropriate the income derived from the land towards the maintenance due to them. He submitted that the application was not bona fide and was made with a view to harass and coerce the appellant. The proper remedy for the respondents was to proceed against the charged properties, bring them to sale and adjust the sale proceeds towards the decree amount. Instead of doing so they had resorted to the extraordinary remedy of seeking the arrest of the appellant.

6. Sri Jagannadha Sastry further submitted that under the provisions of the Civil Procedure Code as amended by Act 104/76 the appellant could not be put in Civil Prison for more than 3 months. The order of the executing Court directing arrest was made on 20th April, 1976 and the appellants has been in prison in pursuance of the order from 24-11-1976 (he having obtained stay upto that date). Now that more than 3 months have spent by him in prison, this Court should direct that he should be released.

7. With regard to the second submission, Smt. Ramaseshamma, the learned Counsel for the respondents, contended that the order of arrest was made on 20th April, 1976 and the amended Civil Procedure Code is not applicable to the case where the order had been passed long before the amendment. The period of 6 months according to the code before amendment would expire only on 24th May, 1977 and the appellants was bound to continue in prison until that date.

8. We are inclined to agree with the submission of the learned Counsel for the appellants that in view of the amended Civil Procedure Code the appellants is entitled to be released as 3 months have elapsed since he was placed in prison in pursuance of the order of the Executing Court.

9. Section 51(c) provides, as one of the modes of execution, the arrest and detention of a person. The proviso to Section 58 as it stood before the amendment provided that where the decree i for the payment of a sum of money exceeding five hundred rupees, every person detained in Civil Prison in execution of the decree shall be detained for a period of 6 months, in other cases for a period of 6 weeks. Section 58 was however amended by Section 22 of the Civil Procedure Code Amendment Act 104 of 1976. Under Section 58 as amended, every person detained in the Civil Prison in execution of a decree shall be so detained where the decree is for the payment of a sum of money exceeding one thousand rupees for a period not exceeding three months. If the amended Section is applicable, there can be no doubt that the appellants cannot be detained in prison any more as he has spent more than 3 months in civil prison. Smt. Ramaseshamma, however, argues that as the order for arrest was passed long before the amendment came into force, the amended provision is not applicable to the present case. The question for consideration therefore is whether the amendment has retrospective operation and will also apply to cases where an order for arrest has been passed before the amendment. It may, however, be noted that though the order was passed on 20-4-1976, an appeal was preferred as against the said order and when the appeal was dismissed by Muktadar, J., this Letters Patent Appeal was preferred. The result is that the proceedings for arrest must be deemed to be continuing and pending.

10. The following principles regarding the retrospective effect of a statute are well settled. It is open to the legislature to make the provisions of any Act retrospective. But no statute shall be construed as having a retrospective operation unless there is a provision in the statute expressly making it retrospective or there is a clear indication either from the subject matter or from the wordings of the statute that it should be interpreted as far as possible so as to respect vested rights for it is to be presumed that interference with vested rights is not intended by the legislature. But there is no vested right in procedure. Enactments dealing with these subjects apply to pending actions unless a contrary intention is expressly or clearly implied. Alterations in procedure are always retrospective unless there is some good reason or other why they should not be.

11. In Anant Gopal Sheorey v. State of Bombay ( : 1958CriLJ1429 ) it was held that no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. In other words, a change in the law of procedure operates retrospectively. In other words, a change in the law of procedure operates retrospectively. In that case it was held that the amended Section 342-A of the Criminal Procedure Code was applicable to criminal proceedings pending before a Magistrate and in which the recording of evidence had commenced.

12. It follows that the amendment to the Civil Procedure Code is normally to be considered retrospective. Smt. Ramaseshamma, however, submitted that though generally most of the provisions of the Civil Procedure Code are provisions relating to procedure, the provision in Section 58 of the Act prescribing the period of detention is not a provision relating to procedure and hence the above principle is not applicable to this case. We do not agree. An application for arrest and detention in civil prison is only one of the modes of execution of a decree. It is true that the Legislature has provided that the total period of detention in the civil prison cannot exceed a particular period. Nevertheless even such a provision is one relating to procedure in execution of a decree. We are therefore of the view that the amendment of the Civil Procedure Code even in regard to the period of detention should be considered as an amendment of a provision relating to procedure and would have retrospective effect and will apply to pending action.

13. Even assuming that the amendment to Section 58 Civil Procedure Code with which we are concerned cannot be regarded as one dealing with procedure, the amended provision, in our view, will be applicable in the present case. An Act should be interpreted not to affect vested rights, but in this case the amendment does not affect any vested rights. On the other hand, the effect of the amendment is to reduce the term for which a person can be detained in civil prison from six months to three months. The learned Counsel for the respondents submitted that the respondents had a vested right to compel the appellants to serve in civil prison for a period of six months and that right cannot be taken away by giving a retrospective operation to the amendment. We are unable to see how the respondents can be said to have any vested right to compel the petitioner to be detained in civil prison for any particular term. On the other hand, it is well settled that if a statute is passed for the purpose of protecting the public against some evil or abuse it may be allowed to operate retrospectively although by such operation it would deprive some person or persons of a vested right. In this case the amendment to Section 58, Civil Procedure Code was made because it was felt that in public interest person who is unable to pay his debts ought not be detained in civil prison for more than three months if the debt exceeds Rs. 1,000/-. It was pointed out in the American case of Calder v. Bull (1806), 3 Dallas (US) 386 at p. 391) :

'...................................... it is good general rule that a law should have no retrospect: but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement; as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law Ex post Facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. ....................... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.' (Vide also Craies on Statute Law, 7th Edition, 388 & 389).

14. Even in a case where a higher penalty was imposed by a subsequent order, it was held in Buckman v. Button, (1943-2 All E. R. 82) that the Court was justified in imposing a punishment according to the subsequent regulation even though it was made after the commission of the offence. In that case, after the Commission of the offence, but before the hearing, the relevant regulations were amended by orders which increased the penalties for such offences. It was held that the justices were right in law in imposing the higher penalties provided by the subsequent orders which in force at the date of the hearing.

15. At any rate, whatever may be the position with regard to an amendment imposing higher penalties, there can be no doubt that an amendment which reduced the punishment can and should be applied with retrospective effect.

16. The learned Counsel for the respondents relied upon the decisions of the Supreme Court in Shri Vijayalakshmi Rice Mills v. State of A. P. : [1976]3SCR775 and N. G. Mitra v. State of Bihar, ( : 1970CriLJ1396 ). In the first of the above two cases it was held that it is a well-recognised rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities in respect of transactions which were complete at the time the Amending Act came into force. It was held in that case that the millers had to be paid at the controlled price obtaining on the dates on which the sales were effected and not at the increased price which was fixed subsequently under an amendment to the Andhra Pradesh Price Control Order 1964. We do not see how this decision is of any assistance to the respondents. We are not concerned with a case where a new disability or obligation is imposed by a statute. As we have pointed out the amendment to Section 58, Civil Procedure Code far from imposing any disability or obligation, reduced the term of imprisonment.

17. In N. G. Mitra v. State of Bihar ( : 1970CriLJ1396 ), Section 5(3) of the Prevention of Corruption Act provided that the Court shall presume corruption by a person if it is found that he had in his possession property disproportionate to his known sources of income. The appellants in that case was convicted in 1961 when this provision was in force. An appeal was preferred by the appellants to the High Court and by the time it heard the appeal, the above provision was repealed. The High Court invoked the presumption contained in Section 5(3) of the Act, notwithstanding its repeal. It was contended before the Supreme Court, that the Judgment of the High Court was defective in law as it applied the presumption contained in Section 5(3) of the Act even after its repeal. It was held by the Supreme Court that though as a general rule alterations in the form of procedure are retrospective in character there is another equally important principle that a statute should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force. It was held that whatever was correctly adopted and concluded under the old law cannot be reopened again for the purpose of applying the new procedure. In that case, the trial of the appellants was taken up by the lower Court when Section 5(3) was still operative and the conviction of the appellants was pronounced even in 1962 long before the amendment Act. It was not therefore possible to accept the argument that the conviction pronounced by the Special Judge had become illegal or in any way defective because of the amendment to the procedural law made in 1964. The High Court was therefore right in invoking the presumption under Section 5(3) of the Act even though it was repealed in 1964. At first sight, this decision would appear to lend support to the respondents contention. But on closer scrutiny we are of the view that it is not applicable to the facts in the present case. In the case before the Supreme Court, the question was whether the conviction by the Special Judge pronounced according to law then in force was correct or not and had to be set aside. The Supreme Court held that as the law then applicable was correctly applied, the conviction could not be set aside. In this case, it is not necessary for us to set aside the order of the executing Court. Even assuming that the said order was right when it was made, as it was in consonance with Section 58 Civil Procedure Code as it existed at that time, it is open to the appellants to come before us and say that he ought not to be detained any longer in civil prison as no person can be detained for more than three months if the debt exceeds Rs. 1,000/- according to the provision as it stands today.

18. Apart from all these considerations we find sufficient intrinsic evidence in the Act itself which indicates that the amendment to Section 58 Civil Procedure Code was intended to be retrospective and applicable to orders made before the amendment. The amendment was introduced by Act 104 of 1976 which amended the Civil Procedure Code in several other particulars. Section 97 of Act 104 of 1976 deals with repeals and savings. Section 97(1) provides that any provision of the Civil Procedure Code in so far as it is inconsistent with the amended Act would stand repealed. Section 97(2) however goes to provide that notwithstanding the repeal the amendment would not affect matters referred to in cls. (a) to (2b) of Section 97(2). For instance, Section 97(2)(b) to (d) provide that amendment of Sub-section 20, 21 and 25 will not affect any suit pending immediately before the commencement of the Act. Similarly, under Section 97(2)(g), the amendment of Section 60 relating to attachment made before the commencement of the amendment Section 97(2)(h) provides amendment of Section 80 Civil Procedure Code which will not apply to any suit before the amendment. It is not necessary to multiply the instances. It is sufficient to state that it is specifically stated that the amendments to certain Sections will not apply to the suits or proceedings pending before the amendment. It is significant to note that Section 58 is not one of such provisions. This would clearly indicate that the amendment to Section 58 was intended to apply to pending proceedings also. Otherwise, as in the case of amendments to other Sections, it would have been expressly stated that the amendment will not apply to proceedings taken or pending before the amendment.

19. For all these reasons we are satisfied that in view of the amendment to Section 58 of the Civil Procedure Code, the appellants cannot be detained in Civil Prison any longer and has to be released from prison forthwith.

20. In this view, it is not necessary for us to consider the further contention whether the case has been made out for arrest on the merits on the ground that he has sufficient means to pay his debts but is evading payment. The Letters Patent Appeal is allowed, but in the circumstances without costs and the appellant is directed to be released forthwith.

21. Appeal allowed.


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