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L. Ram Saran Dass Vs. Sundar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 116 of 1950
Judge
Reported inAIR1952P& H417
ActsConstitution of India - Article 13(1); Code of Civil Procedure (CPC) , 1908 - Sections 48; Debt Law; Punjab Debtors Protection Act, 1936 - Sections 11; General Clauses Act, 1897 - Sections 6; Punjab Relief of Indebtedness Act, 1934 - Sections 7
AppellantL. Ram Saran Dass
RespondentSundar Singh and anr.
Appellant Advocate H.R. Mahajan, Adv.
Respondent Advocate Shamair Chand, Adv.
DispositionAppeals dismissed
Cases ReferredKeshavan Madhava Menon v. The State of Bombay
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........from 12 years as given in section 48 of the civil procedure code to 6 years as provided for by the punjab debtors' protection act.2. in appeal mr. hem raj mahajan has submitted in the first instance that as the punjab alienation of land act has been declared to be void under article 13(1) of the constitution of india, therefore he can take advantage of the period of 12 years as provided for in section 48 of the civil procedure code. he relies on the observation of mr. justice varada-chariar in -- 'lachmeswar prasad v. keswar lal', air 1941 f. c. 5.in my opinion, it is not the principle laid down in that case which applies, but the correct principle to apply to a case such as this is what was laid down by the supreme court in -- 'keshavan madhava menon v. the state of bombay', 1951 s. c......
Judgment:

Kapur, J.

1. This judgment will dispose of two appeals--E. F. A. No. 116 of 1950 and E. F. A. No. 55 of 1951. They arise out of execution proceedings, one in regard to a decree dated the 23rd July, 1937, for a sum of Rs. 7697/- and the other out of a decree dated the 6th August, 1937, for a sum of Rs. 2354/-. The last execution in both these decrees was taken out in August, 1948. An objection having been taken that the judgment-debtors were 'debtors' as defined in Section 7 of the Punjab Relief of Indebtedness Act, it was held that the period of limitation for the execution of these decrees was reduced from 12 years as given in section 48 of the Civil Procedure Code to 6 years as provided for by the Punjab Debtors' Protection Act.

2. In appeal Mr. Hem Raj Mahajan has submitted in the first instance that as the Punjab Alienation of Land Act has been declared to be void under Article 13(1) of the Constitution of India, therefore he can take advantage of the period of 12 years as provided for in section 48 of the Civil Procedure Code. He relies on the observation of Mr. Justice Varada-chariar in -- 'Lachmeswar Prasad v. Keswar Lal', AIR 1941 F. C. 5.

In my opinion, it is not the principle laid down in that case which applies, but the correct principle to apply to a case such as this is what was laid down by the Supreme Court in -- 'Keshavan Madhava Menon v. The State of Bombay', 1951 S. C. R. 223. There it was held that the effect of Article 13(1) of the Constitution is quite different from that of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. It was also held that Article 13(1) is not retrospective but is prospective and if, therefore, an act was done before the commencement oC the new Constitution in contravention of the provisions of any law which was a valid law at the time of the commission of that act, a prosecution for such an act which was commenced before the Constitution came into force can be pro-ceeded with and the accused punished. The: rule, in other words, is that Article 13(1) being prospective the mere fact that an Act or a statute is inconsistent with it and, therefore, void does not affect anything done or action taken or rights which have accrued as a result of that subsequently declared void Act, if such a right had accrued or action had been taken; before the Constitution came into force. As in 1948, that is long before the Constitution had come into effect, the execution of this decree had become barred under the Debtors Protec-tion Act because of the judgment-debtor being an agriculturist as defined in the Punjab Alie-nation of Land Act. it cannot be held that the period of limitation' will now be extended and the execution will become one within lime under section 48 of the Civil Procedure Code.

3. The other question is whether the judg-ment-debter is a 'debtor' within the meaning of the word as used in the Relief of Indebtedness Act. In section 7 of that Act 'debtor' has been defined as a person who owes a debt, and in the proviso it is provided that a member of a tribe notified as agriculturist under the Punjab Alienation of Land Act, 1900, shall be presumed to be a debtor in this section until it is proved that his income from other sources is greater than his income from agriculture. In this case the decree-holder has gone into the witness-box. He has stated nothing from which it could be shown that the income of the judgment-debtor from sources other than agriculture is greater than that he has from agriculture. (His Lord-ship considered the evidence and proceeded:) In any case there is no proof produced by the decree-holder showing that the income derived by the judgment-debtor from sources other than agriculture is more than the income from agriculture. Mr. Hem Raj Mahajan says the in these circumstances the judgment-debtorhas no income from agriculture, but it is not shown that he has income from any other source. Therefore, it cannot be held that the decree-holder has discharged the onus which was placed upon him.

4. I, therefore, dismiss these appeals and confirm the order of the execution Court. In the circumstances of this case the parties willbear their own costs throughout.


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