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Muthukrishna Pillai and anr. Vs. Ayyaswami Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in113Ind.Cas.416; (1928)55MLJ382
AppellantMuthukrishna Pillai and anr.
RespondentAyyaswami Aiyar
Cases ReferredCourts. Vddavalli Narasiah v. Mangamma I.L.R.
Excerpt:
.....chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - 1. in my opinion the court of first instance is clearly right in its view of the law. as a new rule had to be added to resolve the disputed point, it had of course to be called an amending act as well as an explanatory act. i disagree with the views expressed in paragraph 8 of his judgment that 'the power possessed by a court to order attachment before judgment was expressly taken away and repealed' and that 'act i of..........conflicting decisions in the calcutta high court and finally it was held by a full bench there that while a small cause court could pass the order for attachment, it could not execute it. to declare the law on the point, act i of 1926 was passed. its effect is that the view taken in kothandarama chettiar v. annamalai pillai i.l.r. (1924) m. 488 : 1924 48 m.l.j. 406 was bad in law. to argue that such a view created rights is not permissible. a court does not create rights by such a decision but merely states its view as to the rights possessed by persons or courts. vddavalli narasiah v. mangamma i.l.r. (1903) m. 538 quoted for respondent has no application to a case like this and in fact is against him in so far as it lays down that acts relating to procedure are retrospective.5. the.....
Judgment:

Pakenham Walsh, J.

1. In my opinion the Court of first instance is clearly right in its view of the law. An interim order of attachment of 2nd defendant's immoveable property before judgment was passed on 15th January, 1926 and the attachment was made absolute when the decree was passed on 30th March, 1926. Meanwhile, Act I of 1926 had come into force on 24th February, 1926. This, was an explanatory Act passed with reference to the conflicting views which had been taken as to the power of a Small Cause Court to attach immoveable properties before judgment. By that Act, to Order 38, Rule 12 of the Code of Civil Procedure was added another Rule 13 declaring that Small Cause Court had no such powers. There is no dispute, therefore, that when the attachment order in this case was made absolute on 30th March, 1926, it was an order beyond the powers of the Court to pass.

2. Act I of 1926 being a declaratory Act, the usual presumption that an Act is not retrospective does not apply vide Attorney-General v. Dusdley Craies on Statute Law, p. 336, 3rd Ed. vide, also Mohammadi Bibi v. Kashi Upadhya 96 Ind.Cas. 775. Moreover, even otherwise a right to apply for attachment is, I agree with the learned District Munsif, a processual right, and, as he puts it, a privilege whose exercise depends entirely on the discretion of the Court.

3. The learned Appellate Judge has, in my opinion, taken a wrong view in saying that Act I of 1926 took away any jurisdiction which the Small Cause Court had before. There is absolutely nothing repealed by the Act. As a new rule had to be added to resolve the disputed point, it had of course to be called an amending Act as well as an explanatory Act. I disagree with the views expressed in paragraph 8 of his judgment that 'the power possessed by a Court to order attachment before judgment was expressly taken away and repealed' and that 'Act I of 1926 is a repealing Act as well as an amending Act.'

5. The Madras High Court had no doubt held in Kothandarama Chettiar v. Annamalai Pillai I.L.R. (1924) M. 488 : 1924 48 M.L.J. 406 that a Small Cause Court had such powers. There had been conflicting decisions in the Calcutta High Court and finally it was held by a Full Bench there that while a Small Cause Court could pass the order for attachment, it could not execute it. To declare the law on the point, Act I of 1926 was passed. Its effect is that the view taken in Kothandarama Chettiar v. Annamalai Pillai I.L.R. (1924) M. 488 : 1924 48 M.L.J. 406 was bad in law. To argue that such a view created rights is not permissible. A Court does not create rights by such a decision but merely states its view as to the rights possessed by persons or Courts. Vddavalli Narasiah v. Mangamma I.L.R. (1903) M. 538 quoted for respondent has no application to a case like this and in fact is against him in so far as it lays down that Acts relating to procedure are retrospective.

5. The petition must be allowed with costs. The order of the Appellate Court is set aside and that of the Original Court restored.


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