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Bauribandhu Patra Vs. Biswanath Behera and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 434, 436 to 439 of 1980
Judge
Reported inAIR1984Ori118; 1984(I)OLR276
ActsOrissa Money Lenders Act, 1939 - Sections 18B, 18B(2) and 18B(3); Orissa Money Lenders (Amendment) Ordinance, 1975 - Sections 2(1)
AppellantBauribandhu Patra
RespondentBiswanath Behera and ors.
Advocates:Ashok Mohanty, ;N. Prusty and ;R. Mohapatra, Advs.
DispositionRevision allowed
Cases ReferredUnion of India v. Raman Iron Foundry
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if the legislature intended that the expression 'suit' should also include an execution proceeding, it would have clearly said so. does the first clause apply to execution proceedings ? the language is at best an imperfect medium of expression and a variety of meanings may often lie in a word or expression. my aforesaid conclusion gets support from the fact that the legislature when it intended that certain provisions shall apply to execution proceedings clearly so provided......records before the specified officer. the notification, therefore, did not apply to registered moneylenders who were no longer carrying on business. so, the provisions contained in sub-section (2) of section 18-b applied only to registered money-lenders carrying on business in the areas specified. this, therefore, was the sine qua non for the applicability of the rest of the provisions. sub-section (8) is integrally connected with sub-section (2). it would have no application to cases to which sub-section (2) is not attracted. 6. the next question is if sub-section (8) of section 18-b applies to execution proceedings the second clause refers to suits. does the first clause apply to execution proceedings or does the expression 'suit' in the second clause include execution proceedings.....
Judgment:
ORDER

R.C. Patnaik, J.

1. These revisions are directed against orders passed by the learned Munsif, Daspall, dismissing execution applications filed by the petitioner holding that the decrees were no longer executable in view of Section 18 (7) of the Orissa Money Lenders (Amendment) Ordinance, 1975 (hereafter referred to as Sub-section (8) of Section 18-B of the Orissa Money Lenders Act, 1939.

2. It is unnecessary to narrate the facts of each of the revisions for appreciation of the questions involved. Suffice to narrate the facts of Civil Revision No. 436 of 1980.

3. The petitioner obtained a money decree in Money Suit No. 8 of 1974-III for realisation of an amount advanced by him as loan to the opposite party. He executed the decree in execution case No. 7 of 1978, The opposite parties moved an application under Section 13 of the Orissa Money Lenders Act, 1939, (for short, 'the Act') seeking a direction for payment of the amount under execution by instalments. The executing Court granted the prayer by order dated 18-12-1978 directing the opposite parties to clear up the decretal dues by instalments of Rs. 100/- per month. When there was default in payment of instalments, steps were taken for attachment of the judgment, debtors' property. On 11-5-1979 they filed two receipts in Court showing payment of Rs. 500/- towards the instalments due. They further paid Rs. 200/- on 18-6-1979 and 10-7-1979; but again defaulted. When further steps were being taken, the learned Munsif suo motu raised an objection on 10-4-1980 to the maintainability of the execution petition after the incorporation of Section 18-B by Orissa Act 54 of 1975 (The Orissa Money Lenders (Amendment) Act, 1975) and byorder dated 15-4-1980 dismissed the execution petition holding that the decree was no more executable in view of Sub-section (8) of Section 18-B of the Act.

4. Sub-section (8) of Section 18-B reads as follows:--

'(8) No Court shall entertain any claim in respect of any loan advanced prior to the date of the order referred to in Sub-section (2) unless the particulars thereof are contained in the said order and all suits in respect of such claims shall stand abated.'

The sub-section lays down that a claim in respect of any loan advanced prior, to the date of the order referred to in Sub-section (2) shall not be entertained by any Court unless the particulars thereof are contained in the said order and suits pending in respect of such claims shall stand abated. Sub-sections (1) and (2) of Section 18-B are as hereunder :--

'18-B(1). The State Government may, from time to time, by notification, requite the money-lenders or money tenders belonging to any class or carrying on business in any local area, to produce before such authority and by such date as may be specified in the said notification, all records relating to their business including documents evidencing advance of loans.

(2) The authority specified in the notification referred to in Sub-section (2) shall scrutinise the documents with a view to determining if the transactions exceed the amount for which the money-lender has obtained the registration certificate and shall, alter giving the money-lender a reasonable opportunity of being heard, pass an order declaring the particulars of transactions that are within the amount specified in the said certificate.'

Sub-section (1) authorises the State Government to issue notification requiring the money lender or money-lenders belonging to any class or carrying on business in any local area to produce before the authority notified by the date specified in the notification, all records relating to the business including documents evidencing advance of loans. The authority specified in the notification is required by Sub-section (2) to scrutinise the documents with a view to determining if the transaction exceeds me amount for which the money-lender has obtained the registration certificate and after hearing the moneylender, to pass an order declaring the particulars of transaction that would be within the amount specified in the said certificate. The notification dated 9-7-1976 was issued by the State Government under Sub-section (1) and was published in the Gazette on 14-7-1976, directing all registered money-lenders carrying on business in the Tahsil areas specified in the Schedule to produce the records relating to their, business including documents evidencing advance of loans before the officer specified in the notification.

5. The notification required the registered money-lenders carrying on business in the areas specified to produce their records before the specified officer. The notification, therefore, did not apply to registered moneylenders who were no longer carrying on business. So, the provisions contained in Sub-section (2) of Section 18-B applied only to registered money-lenders carrying on business in the areas specified.

This, therefore, was the sine qua non for the applicability of the rest of the provisions. Sub-section (8) is integrally connected with Sub-section (2). It would have no application to cases to which Sub-section (2) is not attracted.

6. The next question is if Sub-section (8) of Section 18-B applies to execution proceedings The second clause refers to suits. Does the first clause apply to execution proceedings or does the expression 'suit' in the second clause include execution proceedings

The expression 'suit' has been defined in Section 2 (1) (q) as under: 'suit' includes an appeal.

It is worth-while to note here that the legislature did not include an execution proceeding in the definition of 'suit'. Appeal is continuation of a suit. Even then the legislature clarified by the definition that the suit included an appeal. If the legislature intended that the expression 'suit' should also include an execution proceeding, it would have clearly said so. A suit commences with the presentation of a plaint and ends with a decree. Then a different process starts for the execution of the decree.

Does the first clause apply to execution proceedings The language is at best an imperfect medium of expression and a variety of meanings may often lie in a word or expression. The exact colour, and shape of the meaning of any word or expression should not be ascertained by reading it in isolation, but it should be read structurally and in its context, for its meaning may vary with its contextual setting. The context and collocation of a particular expression may show that it was not intended to be used in sense which it ordinarily bears--vide Union of India v. Raman Iron Foundry, AIR 1974 SC 1265, per Bhagwati, J.

In my opinion, having regard to the collocation of the words and the context, the first clause does not apply to execution proceedings.

My aforesaid conclusion gets support from the fact that the legislature when it intended that certain provisions shall apply to execution proceedings clearly so provided. Section 16 provides that the provisions of Sections 10 to 15 shall apply to certain pending suits, appeals and execution proceedings and reads as follows :--

'16. The provisions of Sections 10 to 15 shall, so far as may be, apply--

(1) to suits whether brought by moneytenders or by any other person in respect of loans advanced before the commencement of this Act, and pending on the date on which the said sections came into force; and

(ii) to appeals and proceedings in execution arising in respect of decree passed on 1st April, 1936 or thereafter on the basis of loans whether such appeals or proceeding in execution were pending on, or instituted after, the date on which the said sections come into force.' (underlining supplied).

7. No objection had been raised by the opposite parties to the maintainability of the execution proceeding. There is no material before the Court to indicate that Sub-section (2) of Section 18-B was attracted. Sub-section (8) is integrally connected with Sub-section (2). Where Sub-section (2) is not applicable, Sub-section (8) is not attracted.

I am, therefore, of the opinion that the learned Munsif exercised jurisdiction illegally and with material irregularity by dismissing the execution petition.

8. In the result, I set aside the impugned orders and allow the revisions. There would be no order as to costs.


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