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Official Receiver of Moradabad Vs. Haji Murtaza Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All434
AppellantOfficial Receiver of Moradabad
RespondentHaji Murtaza Ali and ors.
Excerpt:
- - the learned district judge was therefore perfectly right in holding that this was the state of the law up to 1926 when the new tenancy act was passed. 8. we are therefore clearly of opinion that the provincial insolvency act must now be held to be applicable to suits and proceedings under the tenancy act because there is no bar to its applicability iii existence......of 1881 special procedure was laid down for suits between landlords and tenants, and the rules of civil procedure were applicable in some cases only. the civil procedure code of 1882 (act 14 of 1882), oh, 20, dealt with insolvency proceedings. in section 4, there was an express provision that nothing contained in the code shall be deemed to affect any law prescribing special procedure for suit between landlords and tenants. thus ch. 20 of the code dealing with insolvency matters was not applicable to suits between landlords and tenants. in the tenancy act of 1901, section 193 in express terms made ch. 20 of the code inapplicable to all suits and proceedings under the tenancy act. it was accordingly held by a fall bench of this court in kalka das v. gajju singh a.i.r. 1921 all. 13 that.....
Judgment:

Sulaiman, J.

1. This is an appeal by the Official Receiver in insolvency from an order under Section 4, Provincial Insolvency Act. It appears that the respondent Murtaza Ali held a simple money decree for arrears of rent against Ahmad Ali, a thekadar. This decree was in execution but before the property was attached the judgment-debtor was declared an insolvent on 1st May 1929. In spite of his insolvency, the decree-holder proceeded to attach certain zamindari properties belonging to his judgment-debtor and they were put up for sale by the Revenue Court and sold at auction on 25th. March 1930. When the sale was confirmed the Official Receiver moved the insolvency Court under Section 4 o the Act for deciding the question -whether any title had passed to the auction purchaser by the Revenue Court's sale. The original insolvency Court decided the point in favour of the Official Receiver holding that as a result of the insolvency of the judgment-debtor, his estate had become vested in the Official Receiver and no Court other than the insolvency Court was seined of the jurisdiction to sell the property. On appeal the learned District Judge came to a contrary conclusion. He pointed out that up to 7th September 1926, when the new Tenancy Act came into force, the law undoubtedly was that the provisions of the Insolvency law did not apply to proceedings in the Revenue Court. He then proceeded to ask himself the question whether the authors of the Tenancy Act really intended to alter the law which had stood for at least 80, if not 50 years, and whether the omission of all reference to the Insolvency law was deliberate. He was also influenced in his view by a note in a certain pamphlet issued under the authority of the Government and by there being no reference to the alteration of the law in the reported debates held in the Legislative Assembly. He therefore came to the conclusion that it was very difficult to suppose that the legislature really intended that the law should be altered. He accordingly disallowed the application of the Official Receiver.

2. We agree entirely with the view taken by the learned District Judge that up to 1926 the law was as he has stated. We may briefly summarize the previous enactments, in order to make the point; of view pressed by the District Judge clear. Chapter 20, Civil P.C. 1877 (Act 10 of 1877) contained provisions relating to the insolvency of debtors. In the Rent Act of 1881 special procedure was laid down for suits between landlords and tenants, and the rules of civil procedure were applicable in some cases only. The Civil Procedure Code of 1882 (Act 14 of 1882), Oh, 20, dealt with insolvency proceedings. In Section 4, there was an express provision that nothing contained in the Code shall be deemed to affect any law prescribing special procedure for suit between landlords and tenants. Thus Ch. 20 of the Code dealing with insolvency matters was not applicable to suits between landlords and tenants. In the Tenancy Act of 1901, Section 193 in express terms made Ch. 20 of the Code inapplicable to all suits and proceedings under the Tenancy Act. It was accordingly held by a Fall Bench of this Court in Kalka Das v. Gajju Singh A.I.R. 1921 All. 13 that the provisions of the Insolvency law did not apply to revenue cases. Section 56(2), Provincial Insolvency Act (Act 3 of 1907), expressly enacted that where in any enactment in force at the time of the commencement of the Act, reference is made to Ch. 20, Civil P.C. of 1877 or of 1882, such reference, so far as may be practicable, shall be construed as applying to this Act. Under the same section Ch. 20 of the Code was repealed because the provisions relating to the insolvency of debtors were embodied in a separate Act. It therefore followed that the provisions of the Provincial Insolvency Act were inapplicable to cases under the Tenancy Act, in view of the exception contained in Section 193 of the latter Act. The new Civil Procedure Code of 1908 did not alter the position in any way. The Provincial Insolvency Act (Act 5 of 1920) also contained Section 83, in which it was again provided that where in any enactment at the time of the commencement of the Act reference is made to Ch. 20, Civil P.C. 1877 or 1882, the reference shall, so far as may be practicable, be construe as applying to this Act. The result obviously was that the Insolvency Act of 1920, by virtue of the exception contained in Section 193, Agra Tenancy Act, 1901, remained inapplicable to cases in the Revenue Courts. The learned District Judge was therefore perfectly right in holding that this was the state of the law up to 1926 when the new Tenancy Act was passed.

3. But in order to interpret the provisions of the new Tenancy Act, when the sections themselves are clear, we cannot allow our minds to be influenced by the previous history of the law, and draw any inference as regards the supposed policy of the legislature. It is only in the case of ambiguity that previous legislation may be referred to in order to throw light on the interpretation of a particular section. But where the Act itself is clear, the presumption is that the legislature deliberately intended to alter the law, and we must interpret the sections as they now stand. If our interpretation in any way conflicts with the policy of the legislature, it is open to it to amend the Act.

4. Section 264 is the new section which in some ways corresponds to Section 193 of the old Act. It is the only section which makes the provisions of the Civil Procedure Code of 1908 applicable to suits and proceedings under the Tenancy Act, subject to certain exceptions. The legislature had before it the previous provision in Section 193, under which Ch 20, Civil P.C. dealing with insolvency matters had been expressly excluded. But in enacting the new sections the legislature omitted any further reference either to that chapter of the old Civil Procedure Code, or to the new Provincial Insolvency Act. Whether the omission was deliberate or accidental, it is not for us to speculate. The fact remains that that portion of Section 193 which had the effect of making the Insolvency law inapplicable to cases under the Tenancy Act has been deleted from Section 264 of the new Act. The Provincial Insolvency Act is an Imperial Act and applies to all proceedings, except those which are excepted by it. Section 28 of the Act, which lays down that the property of an insolvent shall vest in the Court or the receiver, as the case may be, itself contains an exception in sub Section (5) as regards any property which is exempted by the Civil Procedure Code, or

by any other enactment for the time being in force, from liability to attachment and sale in execution of any decree.

5. There is no law in force which now makes the proceedings in insolvency in applicable to a revenue suit or proceeding. The inapplicability of the Insolvency law to revenue cases depended mainly on the provision in Section 193 which made such law inapplicable. By deleting that provision from Section 264 of the new Act, that bar has been automatically removed. There is therefore nothing to prevent the applicability of the Insolvency law to proceedings under the Tenancy Act. Whether the result in unfortunate or not, there can be no doubt that this is the result of the language of Section 264 as it now stands.

6. The learned District Judge himself felt this difficulty, and therefore suggested that

it is possible that Section 6, United Provinces General Clauses Act, covers the point.

7. Sub-clause (a) of that section which has been referred to, merely provides that when any Act repeals any enactment hitherto made, then, unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect. This subsection merely implies that a repealing act does not bring into existence the previous Act which had been itself repealed by the repealed Act. For instance, the mere fact that the Tenancy Act of 1926 repealed the Tenancy Act of 1901 would not revive the Rent Act of 1881. The effect of the section in the General Clauses Act undoubtedly is that the fact of repealing the Tenancy Act of 1901 does not by itself revive anything not in force at the time when the repeal took effect. But the applicability of the Insolvency law to revenue cases does not depend on the repealing Tenancy Act of 1926. The Insolvency Act applies, unless there is a bar to its application. It is that bar which has been removed in the new Tenancy Act.

8. We are therefore clearly of opinion that the Provincial Insolvency Act must now be held to be applicable to suits and proceedings under the Tenancy Act because there is no bar to its applicability iii existence. In this view of the matter it is wholly unnecessary for us to consider what would be in accordance with public policy.

9. We are accordingly of opinion that the order passed by the original Insolvency Court was correct, and that the Official Receiver's application for a declaration that the auction sale held by the Revenue Court outside the insolvency proceedings did not pass any title to the auction-purchaser and that the sale proceeding was null and void as against him, should be allowed. We direct that the appellant shall have his costs from the respondents in all Courts.


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