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Musammat Konsilla Vs. Ishri Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.188
AppellantMusammat Konsilla
Respondentishri Singh
Excerpt:
.....accrued under the old act--construction of statutes--retrospective effect of statute--limitation--bight to execute decree is substantive right. - - 401 that a decree like the present in whi6h provision is made for the enforcement of the decree against immovable property did not come within the provision of section 230 of act no. 7. the right to enforce execution of a decree like the present is a substantive right. v of 1908, without express provision to that effect, can curtail the remedy the decree-holder had before that act came into force and that the answer is that no statute shall be construed as to have a retrospective operation unless such a construction appears very clearly in the terms of the act or arises by necessary and distinct implication......the enactment so repealed or affect any remedy in respect of any such right.7. the right to enforce execution of a decree like the present is a substantive right. it was in existence before act no. v of 1908 came into force and the decree-holder had the remedy to enforce his right so to speak till the end of time if he prosecuted his right with legal diligence. as neither act no. xiv of 1882 nor any limitation act curtailed that right or remedies to enforce that right, it seems to me we have not to consider, them or their repeal.8. what we have to consider is solely whether section 48 of act no. v of 1908, without express provision to that effect, can curtail the remedy the decree-holder had before that act came into force and that the answer is that no statute shall be construed as.....
Judgment:

George Knox, J.

1. The facts of this case are: Musammat Konsilla on the 24th of November 1893, obtained a decree against one Ishri Singh. This decree shefirst put into execution on the 24th of January 1895. Several other applications were made by her for execution. All these were infructiious but in each one of them apparently some step was taken in aid of execution and the present application was instituted within three years of a previous application for execution to a proper Court in accordance with law. On the 25th of February 1909, she instituted the proceedings out of which the present appeal has arisen. The judgment-debtor at once took plea based upon Section 48 of Act No. V of 1908 that as more than twelve years had expired from the date of the decree, no order for execution could be made. Both the Courts below have accepted this plea and summarily rejected the application. They were of opinion that Section 48 above mentioned did bar execution.

2. In appeal before us, it is urged that Section 48 does not apply to these proceedings, inasmuch as the decree was passed in 1893 and these proceedings are in regular continuation of proceedings instituted in 1895 both coming into force at a time when there was no provision of law limiting execution other than Article 179 of Schedule II of Act No. XV of 1677. It may at once be conceded that if Act V of 1908 had not been placed upon the Statute Book, and if Act No. XIV of 1882 were still in force, the present proceedings would not be barred.

3. This Court held in Pahlwan, Singh v. Narain Das 22 A. 401 that a decree like the present in whi6h provision is made for the enforcement of the decree against immovable property did not come within the provision of Section 230 of Act No. XIV of 1882. Section 48 of Act No. V of 1908 has been so worded as to include and govern applications for execution of all decrees save and excepting only decrees for injunctions.

4. The question, then, that arises for decision is, whether Act No. XIV of 1882having been completely repealed, Act No. V of 1908 can operate so as to fear the right which the decree-holder had before Act No. V of 1908 came into force and still would have but for its enactment if it applies.

5. The learned Vakil for the appellant contended that the question before us is mot merely a question of procedure and that the right which the appellant had cannot be curtailed unless by some enactment which is expressly declared to have retrospective effect. In support of his contention, he referred us to Jug Ram v. Jeeva Ram 6 A.L.J. 257 : 3 Ind. Cas. 497, Gokul Singh v. Birj Lal A.W.N. (1885) 130, Deb Narain Dutt v Narendra Krishna 16 C. 267. All of these cases except the first were cases in which the Court considered the effect of Section 6 of Act No. I of 1868 upon proceedings which had been commenced before the Act, under which they had commenced, had been repealed and it was held broadly that unless the 6th section of the General Clauses Act of 1898 had been excluded by the repealing Act, its effect was to have proceedings, initiated before the repealing Act came into force, to be dealt with under the provision of the repealed Act and that retrospective effect is not ordinarily given to an exactment so as to affect substantive right.

6. Section 6 of Act No. VII of 1897 has now taken the place of Section 6 of Act No I of 1868. Its terms are much wider than the terms of Section 6 of Act No. I of 1868 and it enacts inter alia that, unless a different intention appears in the repealed Act, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued and incurred under the enactment so repealed or affect any remedy in respect of any such right.

7. The right to enforce execution of a decree like the present is a substantive right. It was in existence before Act No. V of 1908 came into force and the decree-holder had the remedy to enforce his right so to speak till the end of time if he prosecuted his right with legal diligence. As neither Act No. XIV of 1882 nor any Limitation Act curtailed that right or remedies to enforce that right, it seems to me we have not to consider, them or their repeal.

8. What we have to consider is solely whether Section 48 of Act No. V of 1908, without express provision to that effect, can curtail the remedy the decree-holder had before that Act came into force and that the answer is that no statute shall be construed as to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. Statutes are to be construed as operating only on cases or facts which come into existence after they are passed. Smith v. Oallender (1901) A.C. 297 : 84 L.T. 801 : 70 L.J. P.C. 53.

9. As Willes, J., pointed out in Phillips v. Eyre (1870) L.R. 6 Q.B. 1 at p. 23 : 22 L.T. 869 : 10 B. & N.S. 1004 : 4 L.J.Q.B. 28:

Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. 'Leges et constitutiones futnris certum est dare formam negotiis, non ad facta prmtaerita revocari; nisi norninatim et de praeterito tempore et adhuc pendentibus negotiis cautum sit.' Accordingly, the Courts will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication it appears that such was the intention of the legislature.

10. This is particularly to be borne in mind when a defence of limitation is set up. As was panted out in Roddam v. Morley 1 Deg. & J. 1, limitation is a defence the creature of positive law and, therefore, not to be extended to cases which are not strictly within t he enactment.

11. I would, therefore, decree this appeal and setting aside the decree of the Courts below, remand the proceedings through the lower appellate Court to the Court of first instance with directions to re-admit the proceeding under the original number in the register of execution proceedings and proceed to determine them. Costs here and hitherto will abide the event.

Karamat Husain, J.

12. I have had the advantage of reading the judgment of my learned brother and I entirely agree with him and in the order proposed by him.


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