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Mati Lal Shah Vs. Chandra Kanta Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal1
AppellantMati Lal Shah
RespondentChandra Kanta Sarkar and ors.
Cases ReferredTarak Nath Kundu v. Panchanan Dutt
Excerpt:
- chakravartti, j.1. this rule was issued by henderson j., sitting singly, who directed it to be heard by a division bench. it came up for hearing before a division bench, constituted of khundkar and biswas jj., who thought that in view of the importance of the question involved, it ought to be heard by a special bench. accordingly, on their requisition, the present special bench was constituted by the chief justice under the provisions of chap. 2, rule 1, proviso (ii), appellate side rules. since the case involves a question of law as to the interpretation of the government of india act, 1935, which concerns the provincial government, notice was directed to be given to the advocate-general of bengal under order 27a, rules 1 and 4, civil p.c., and the advocate-general appeared before us by.....
Judgment:

Chakravartti, J.

1. This rule was issued by Henderson J., sitting singly, who directed it to be heard by a Division Bench. It came up for hearing before a Division Bench, constituted of Khundkar and Biswas JJ., who thought that in view of the importance of the question involved, it ought to be heard by a Special Bench. Accordingly, on their requisition, the present Special Bench was constituted by the Chief Justice under the provisions of Chap. 2, Rule 1, proviso (ii), Appellate Side Rules. Since the case involves a question of law as to the interpretation of the Government of India Act, 1935, which concerns the Provincial Government, notice was directed to be given to the Advocate-General of Bengal under Order 27A, Rules 1 and 4, Civil P.C., and the Advocate-General appeared before us by Mr. Lahiri.

2. It is not necessary to re-state the facts which have been stated in sufficient detail in the order recorded by the Division Bench. In substance, the position is that a decree, passed by the Presidency Small Cause Court at Calcutta, was transferred for execution to a Munsiff's Court and that Court after it had commenced execution proceedings, was served with a notice under Section 34, Bengal Agricultural Debtors Act, as amended by Act 8 [VIII] of 1940. The Munsiff has held that but for the amendment of Section 20, Debtors Act, which was made by the same amending Act and has now vested the Debt Settlement Board with exclusive jurisdiction to decide whether a liability is a debt or not, he would have held that the decree under execution before him did not constitute a 'debt' within the meaning of Section 2(8) of the Act and consequently no Debt Settlement Board had jurisdiction to deal with it at all, or interfere with its execution by a civil Court. But the amendment, he thought, made it impossible for him to decide the question for himself and, accordingly, he felt bound to stay the execution proceedings by reason of the provisions of Section 34 of the Act.

3. It is contended by the decree-holder who obtained the present rule, that Sections 20 and 34, Bengal Agricultural Debtors Act, as they stand, now and so far as they affect the execution of a j decree of the Calcutta Small Cause Court by a civil Court, are void, being repugnant to the provisions, of Section 47, Civil P.C., and Section 31, Presidency Small Cause Courts Act. The learned Munsiff was therefore entitled to decide for himself whether the liability under the decree was or was not a debt, as contemplated by the Act, and if he found it was not, to disregard the notice under Section 34 and proceed with the execution.

4. It is contended in the second place that the liability under a decree passed by a Presidency Small Cause Court is not a 'debt' as defined in the Bengal Agricultural Debtors Act and consequently such a liability is outside the jurisdiction of Debt Settlement Boards altogether.

5. It appears to us that the only question really arising in the case is that of the validity of Sections 20 and 34, Debars Act, in the aspect concerned. The Division Bench before which the invalidity of only Section 20 appears to have been urged, has observed that if that question is determined in the petitioner's favour, a further question will arise as to whether the liability under the decree in the present case is or is not a 'debt' in the special sense of the Act. Before us, it was contended that not only Section 20, bull Section 34 also was invalid, in so far as it affected the execution of Presidency Small Cause Court decrees. In our opinion, if the first question be enlarged so as to embrace the invalidity of both Sections 20 and 34, the second question cannot arise, whether the first is decided in the petitioner's favour or against him. We shall, however, be the better able to explain our reasons for this opinion after we have dealt with the principal question.

6. To appreciate the petitioner's contention on that question, it is necessary to refer in brief to the history of the Bengal Agricultural Debtors Act and certain decisions of this Court thereon. The Act, which is Bengal Act 7 [VII] of 1936, was passed when the Government of India Act of 1915, as amended by the Act of 1919, was in force. Previous sanction of the Governor-General for the introduction of the Bill was obtained under the provisions of Section 80A(3) and the Act, after it had been passed by the Legislature and assented to by the Governor, received his assent under Section 81(3). No exception could therefore be taken to the validity of any of the provisions of the Act, as it then stood, on the ground that it purported to 'regulate a central subject' or altered or repealed any law which, having been made by some authority in British India, other than the local Legislature, before the Government of India Act of 1919, could not be altered or repealed without previous sanction. [Government of India Act, Section 80A(3), Clauses (c) and (h)]. Under Section 45, Government of India Act, 1919, the nomenclature for the consolidated Act, i.e., the Act of 1915 as amended by the Act of 1919, is simply 'The Government of India Act.'

7. The preamble of the Act stated its object to be 'to provide for the relief of indebtedness of agricultural debtors and to amend the law governing the relations between agricultural debtors and their creditors.' 'Debtor' was defined, leaving aside certain particulars, as a person whose primary means of livelihood was agriculture [Section 2(9)]. Barring certain exceptions which are not here material, 'debt' was defined as including 'all liabilities of a debtor in cash or kind, secured or unsecured whether payable under a decree or order of a civil Court or otherwise....' [Section 2(8)]. The Act provided for the establishment of Boards for the settlement of 'debts' owed by 'debtors' and by Section 18 enacted that if any question arose as to the existence or amount of any debt, the Board should decide it, except in the case of a decree of a civil Court which would be conclusive evidence as to both the existence and the amount of the debt. Section 20 was in the following terms:

20. If any question arises in connection with proceedings before a Board under this Act, whether a person is a debtor or not, the Board shall decide, the matter.

8. By certain further provisions in the Act, the jurisdiction of the civil Courts to deal with debts which had been made the subject-matter of adjudication by a Board, by an application under Section 8 or a statement under Section 13(l), made or filed whether by the debtor or the creditor, was taken away or directed to be suspended. Section 33 enacted that no civil or revenue Court should 'entertain' a suit or application or proceeding relating to such a debt; Section 35 enacted that if the debt was constituted by a decree or a certificate under the Public Demands Recovery Act, the same must not be executed, and as regards pending proceedings, Section 34 provided that the Board 'shall give notice' of the application or statement before it to the civil or revenue Court concerned and 'thereupon the suit or proceeding shall be stayed.' It was provided further that if the Board included the debt in the amount declared payable by its award or decided that the debt did not exist, the suit or proceeding, so far as it related to such debt, 'shall abate.'

9. The Act contained no definition of 'civil Court.' In the absence of such definition, it was held by a Special Bench in Narsingdas Tansukdas v. Chogamull : AIR1939Cal435 that the expression 'civil Court,' as used in the Act, referred only to the Courts established under the Bengal, Agra and Assam Civil Courts Act, 1887, and, consequently, did not include the High Court. The liability under a decree passed by the High Court on its Original Side was, therefore, not a debt within the meaning of the Act. The effect of this decision was to hold that Presidency and Provincial Small Cause Courts also were not 'civil Courts' within the meaning of the Act, for those Courts were established, not under the Civil Courts Act but under the Presidency and Provincial Small Cause Courts Act respectively.

10. Section 20 of the Act, again, which authorised the Board to decide, should the question arise, whether a person was a debtor or not, did not give it such authority to decide whether a particular liability was or was not a debt. Nor did Section 18 contain any such provision. It was accordingly held in Nur Mia v. Noakhali Nath Bank Ltd. : AIR1939Cal298 that on receipt of a notice under Section 34, a civil Court was entitled to decide for itself whether the liability, in respect of which the proceeding was pending before it, was a debt as defined in the Act and if it found it was not, to disregard the notice and go on with the proceeding. The decision was fol. lowed in numerous later cases. Lastly, since Section 34 did not mention the Appellate Officer, it was held that he could not give a notice under the section and even if he did, the civil Court, receiving it, would not be obliged to stay the proceedings before it.

11. In order to meet, the effect of these decisions, the Act was amended by Act 8 [VIII] of 1940. Before that, the Government of India Act, 1935, had come into operation on 1st April 1937, with the exception of certain parts which are not material. The amending Act was not reserved for the consideration of the Governor-General and did not receive his assent. By the amending Act, a definition of 'civil Court' was inserted, but the High Court on its Original Side and the Small Cause Courts were not included in the definition. The definition of 'debt' remained the same, except that a qualification, viz., 'incurred prior to 1st January 1940' was introduced and some changes were made in some of the exceptions. Section 20 was amended by addition thereto of the words 'or whether a liability is a debt or not' and thus the Board was given power to decide this question as well, should it arise in any proceedings before it. Section 31 was replaced altogether by a new section which gave the power to issue a notice to the civil Court and cause a stay of the proceedings before it, not only to the Board but also to the Appellate Officer and the District Judge, on the latter of whom revisional powers were conferred by a new Section 40A. The consequences of the service of a notice under Section 34 remained the same.

12. As a matter of words, Section 20 of the Act does not say that the Board will have exclusive jurisdiction to decide either of the two questions mentioned in the section. It merely says that if the questions arise in proceedings before the Board, the Board shall decide them. But the section has been interpreted to mean that the jurisdiction conferred on the Board is exclusive, presumably for the reason that any other view might lead to a conflict of decisions on the same matter between the Court and the Board and cause confusion. Just as it was held before the amendment of the section that it was solely for the Board and not for the Court to decide whether a person was a debtor or not Sailabala Das Jaya v. Nityananda Sarkar : AIR1938Cal375 and other cases, so it has been held after the amendment that the sole authority for deciding whether a liability is or is not a debt is now the Board Manager, Natore Raj Wards' Estate v. Geda Bewa : AIR1941Cal658 and other cases.

13. The position in the present case is that the liability under the decree put into execution is a liability under a decree of the Presidency Small Cause Court which, not being a liability under a decree of a 'civil Court' is prima facie not a 'debt' within the meaning of the Act. The Munsif's Court which is executing the decree and which has been served with a notice under Section 34 is, however, a 'civil Court'. Nevertheless, if Section 20 had not been amended, it could have gone into the nature of the liability for itself and would have been free to hold that the proceedings before it were not in connection with a 'debt' and were not liable to be stayed, as was decided in Taraknath Kundu v. Panchanan Dutt : AIR1939Cal564 where a Munsif' was executing on transfer a decree passed by the High Court on its Original Side. But if Sections 20 and 34, as respectively amended and substituted, are valid and binding on the Court in their application to the present case, it was bound to stay the proceedings without question, as it, in fact, did.

14. The petitioner's contention is that Sections 20 and 34, so far as they bear on the present case, are void. He says that the Civil Procedure Code and the Presidency Small Cause Courts Act are 'Existing Indian Laws' within the meaning of Section 107, Government of India Act, 1935. Under Section 47 of the Code, all questions relating to the execution of a decree are to be decided by the executing Court and the section, as interpreted by judicial decisions, enjoins that such questions are to be decided by that Court alone. Section 31, Presidency Small Cause Courts Act, provides that a decree of the Presidency Small Cause Court, transferred for execution to a civil Court, shall be executed in accordance with the procedure prescribed by the Code of Civil Procedure. But the effect of Section 34, Bengal Agricultural Debtors Act is that if a civil Court, executing a decree, receives a notice from a Debt Settlement Board or some authority subordinate thereto, to the effect that the decree has been included in an application made under Section 8 of the Act or a statement filed under Section 13(1), the execution proceedings 'shall be stayed' till the disposal of the application and where by such disposal the decretal debt is included in an award made by the Board or declared not to exist, the proceeding, so far as it relates to the debt, 'shall abate.' By reason of the provisions of Section 20, the Court cannot go into the question as to whether the decree at all constitutes a 'debt' as defined in the Act, but must comply with the notice without question. The disability imposed on the civil Court by Sections 20 and 34 of the Act is thus inconsistent with its duty and powers under the Civil Procedure Code and where a civil Court is executing a decree of the Presidency Small Cause Court on transfer, it is inconsistent with the Court's duty and powers under the Code, read with the Presidency Small Cause Courts Act. As regards Sections 20 and 34, the Bengal Agricultural Debtor's Act is a Provincial law with respect to items 4, 5 and 15 of the Concurrent Legislative List, viz., Civil Procedure as included in the Code of Civil Procedure, judicial proceedings and jurisdiction and powers of the Court with respect to the two foregoing matters. On the other hand, Section 47, Civil P.C. and Section 31, Presidency Small Cause Courts Act, are existing Indian laws with respect to the same matters. Between the provisions of the Provincial law and those of, the existing Indian laws, there is thus a clear repugnancy. The Amending Act (8 [VIII] of 1940) by which Section 20, Bengal Act, was amended and the present Section 34 substituted, was not reserved for the consideration of the Governor-General and did not receive his assent. Validations under Section 107(2), Government of India. Act, 1935, being thus wanting, the whole of Section 34 and Section 20 so far as it was amended by Act (8 [VIII] of 1940, are void to the extent of their repugnancy to Section 47, Civil P.C., and Section 31, Presidency Small Cause Courts Act, by reason of the provisions of Section 107(1), Government of India Act.

15. It is contended further that the debt in the present case arose out of a contract for goods supplied under the terms of an agency. The Bengal Act, so far as it bears upon the realisation of this debt through Court, is also a Provincial law with respect to another item of the Concurrent Legislative List, viz., item No. 10, 'Contracts, including agency'; and likewise, the Civil Procedure Code and the Presidency Small Cause Courts Act are, in their application to the present case, existing Indian laws with respect to the same matter.

16. Before us, the opposite parties were not represented. The contention on behalf of the Advocate-General of Bengal is that Section 107, Government of India Act, has no application to the present case, because the impugned Bengal Act is not a law with respect to any matter included in the Concurrent Legislative List, but is, in pith and substance and as regards all its provisions, a law on matters included in the Provincial List, viz., agriculture (item 20), agricultural loans (item 21), money-lending (item 27), relief of the poor (item 32) and jurisdiction and powers of the Courts with respect to those matters (item 2). The Act, therefore, deals with matters lying within the exclusive jurisdiction of the Provincial Legislature and no question can arise of the invalidity of any of its provisions on the ground of its repugnancy to an existing Indian law on a subject included in the Concurrent List. Assuming, however, that execution of decree is a matter coming within the Concurrent List, there could be no repugnancy between a Provincial law and the Civil Procedure Code, because, as pointed out in several decisions of the Federal Court, the Code, by Section 4, itself yields to special and local laws. As regards Section 31, Presidency Small Cause Courts Act, that provision, seeing that it simply makes the Code applicable to the execution of Small Cause Court decrees on transfer, necessarily makes it applicable as subject to Section 4. The effect of Section 31 is, therefore, to make the Code applicable, subject to any special or local law that may be in force, and, consequently, subject to the Bengal Agricultural Debtors Act. There is thus no repugnancy between the impugned Act and either of the two existing Indian Laws set up against it.

17. In aid of the above general argument, it is contended further that 'Civil Procedure . and all matters included in the Code of Civil Procedure' in item 4 of the Concurrent List covers mere procedure and does not include 'jurisdiction and powers of all Courts,' for which there is a separate entry in each of the three lists. Sections 20 and 34 of the impugned Act really bear upon the jurisdiction and power of the civil Court and they cannot, therefore, be said to be a law on a matter included in Item 4 of the Concurrent List. Nor are they a law on a matter included in item 5, for, that item does not speak of 'judicial proceedings' as such, but only of their recognition. The impugned sections are, therefore, not provisions of a Provincial law with respect to any matter in the Concurrent List.

18. With regard to Section 4, Civil P.C., it is contended that in order that the Code may prevail, by virtue of the section over a special or local law, the 'specific provision to the contrary' must occur in the Code itself or in the special or local law concerned. Section 31, Presidency Small Cause Courts Act, cannot, therefore, be such a specific provision. Besides, the section merely makes the procedure laid down in the Code applicable, but does not confer on the transferee Court any power or jurisdiction. The impugned sections of the Bengal Act, so far as they affect the power and jurisdiction of the civil Court, are, therefore, not in conflict with Section 31, Presidency Small Cause Courts Act.

19. The principles to be applied in examining the validity of a Provincial enactment under the Government of India Act of 1935, have now been settled by the Federal Court. They are all traceable to decisions of the Privy Council on the British North America Act and many of them were first formulated with reference to the Indian Statute by the late Sulalman J. But they have since been adopted by the Federal Court as a whole. The principles appear to be the following:

(1) If the Provincial law is, in pith and sub-stance, an enactment on one or more of the subjects enumerated in the Federal List, it is ultra vires, whether or not there is already a central law on the subject.

(2) If the Provincial law is in pith and sub-stance, an enactment on matters within its own authorised field, i.e. matters included in List II, but it also contains provisions which encroach on a central subject in a substantial manner, then it is, to the extent of the encroachment, ultra vires, if the offending provisions are severable. If they are not, the whole Act is ultra vires.

(3) If the encroachment be only incidental, that is to say, the subject-matter of the encroaching provisions is something which is only ancillary to a central subject, then the provisions are not for that reason invalid, provided the field is not occupied, that is to say, there is no central law on the subject.

(4) If there is a central law, the encroaching provisions are ultra vires, although the encroachment may be of an incidental character.

(5) If the Provincial law be an enactment with respect to matters belonging to the Concurrent List, or being in substance, an enactment on Provincial subjects, yet contains provisions relating to some matter or matters of that List and there is no existing Indian law on such matters, then the Provincial law is valid.

(6) But if, in such a case, there is an existing Indian law and the provisions of the Provincial law are repugnant thereto, then the latter are, to the extent of the repugnancy, void, unless the Act has been reserved for the consideration of the Governor-General and has received his assent, in which case the Provincial law prevails in the Province concerned.

(7) There is no question of ultra vires in such cases, the Provincial law being primarily competent, nor any scope for the doctrine of severability. The only question is one of repugnancy, and the cure thereof.

20. Reference for these principles may be made to Sections 100 and 107, Constitution Act, and the decisions of the Federal Court in Subrahmanyan Chettiar v. Muttuswami Goundan , Bank of Commerce, Ltd. v. Amulya Krishna Basu Roy and Bank of Commerce Ltd. v. Kunja Behari Kar .

21. We are unable to accept the extreme contention that the Bengal Agricultural Debtors Act is, in its entirety, an enactment With respect to matters lying exclusively within the Provincial field. In pith and 'substance, it may be an enactment with respect to relief of the poor belonging to the agriculturist class (List II, item 32) and its various provisions may also come under more particularised items in that list, e.g., collection of rents (item 21), since a liability for rent is a 'debt' within the meaning of the Act, and money-lending (item 27). We do not, however, think that the Act may be said to come under Item 20, agriculture, or the entry 'agricultural loans' in item 21, although we are aware that the entries in the three lists are only general descriptions which are not to be construed in the way in which a statutory definition is usually construed. But granting that viewed as a whole, the Act is in substance an enactment with respect to matters lying within the exclusive jurisdiction of the Provincial Legislature, we think it does contain provisions which relate to matters in the Concurrent List. Mr. Lahiri may have been right in saying that Sections 20 and 34 of the Act, cannot be said to relate to a matter belonging to the Concurrent List on the ground that they relate to 'judicial proceedings' (item 5). It may be that the expression 'judicial proceedings', as used in that entry, does not stand by itself and does not contemplate judicial proceedings as such, but is governed by the words 'recognition of and means recognition of judicial proceedings as a matter of evidence, although the repetition of the conjunction 'and' after the word 'records' creates a difficulty. But, in any event, debts under contracts other than contracts of loan are also debts within the meaning of the Act and its provisions, among them Sections 20 and 34, so far as they bear on such debts, come under item 10, Concurrent List. There is again the subject 'civil procedure...and all matters included in the Code of Civil Procedure' in Item 4. Here too, Mr. Lahiri may have been right in saying that the entry does not cover 'jurisdiction and powers of the Courts,' for, the scheme of the Lists apparently is that jurisdiction and powers of the Courts is treated as a separate matter and is distributed between them so far as it may bear on the subjects enumerated in each List {see List I, item 53; List II, item 2; List III, item 5.) But there can be no question that jurisdiction and powers of the Courts with respect to Civil Procedure and the Code of Civil Procedure is a matter belonging to the Concurrent List under Item 4, read with item 15. Section 20 of the impugned Act, so far as amended by Act 8 [VII] of 1940, does affect the jurisdiction and powers of the civil Courts to determine in accordance with civil procedure whether a liability is a debt or not and whether the proceeding before it will or will not be stayed. It withdraws from the jurisdiction of the Court what would be otherwise within its jurisdiction. It most undoubtedly affects the Civil Procedure Code as well. About Section 34, we think there can be no possible question that it affects both the Code of Civil Procedure and the jurisdiction and powers of the Court thereunder. It interrupts the Court in its execution of the decree and may ultimately wipe out the execution case altogether.

22. We are accordingly of opinion that the present case is one where a Provincial Act, while being primarily and principally an Act with respect to Provincial subjects, yet contains provisions which relate to matters belonging to the concurrent list. The principle to be applied in examining the validity of those provisions is, therefore, that embodied in the 6th of the propositions we have set out above.

23. The learned advocate for the petitioner placed great reliance on the decision in Lakshan Chandra Naskar v. Ramdas Mandal : AIR1929Cal374 to establish the proposition that all matters relating to the execution of a decree are exclusively for the executing Court. In our opinion, that ease has no real bearing on the present question. All that was there held is that a judgment-debtor cannot plead satisfaction of the decree by way of defence in a separate suit by the decree-holders, just as he cannot do so as a plaintiff, if he has not got the satisfaction recorded by the executing Court which is the proper and the only Court for the decision of questions relating to the execution, satisfaction or discharge of a decree. The observations contained in the judgment must be understood with reference to the question which then fell to be considered, viz., a question between a separate suit and execution proceedings. They have no bearing on the present case where the question is whether the undoubted jurisdiction of the executing Court under the Civil Procedure Code, or the Code read with another Act, could be validly affected by a Provincial statute.

24. Reverting now to the real question before us, the only matter to be considered is whether there is in fact any repugnancy between the impugned provisions and Section 47, Civil P.C., and Section 31, Presidency Small Cause Courts Act. There can be no doubt that the two central Acts are 'existing Indian Laws' within the meaning of Section 311(2), Constitution Act; and it is a fact that assent of the Governor-General to Bengal Act 8 [VII] of 1940 was not obtained. About the Civil Procedure Code, taken by itself, the question is now settled. By Section 4, the Code excepts itself, whenever there is some special or local or other law to the opposite effect, so that there can be no repugnancy. This has been pointed out by the Federal Court in several cases, e.g. The United Provinces v. Mt. Atiqa Begum , Megh Raj v. Allah Rakhial ('42) 29 A.I.R. 1942 F.C. 27 and Mukunda Murari v. Pabitramoy Ghose Section 4 of the Code is prefaced by the words 'in the absence of any specific provision to the contrary', but there is no provision either in the Code or in the impugned Act to the effect that the former will prevail over the latter. The contention that Sections 20 and 34 of the impugned Act are void as being repugnant to the Civil Procedure Code must, therefore, be overruled.

25. It is, however, contended that if the Code be read along with the Presidency Small Cause Courts Act, as it must be in the present case, a specific provision to the contrary will be found in Section 31 of the latter Act. To this it is objected that such specific provision must occur either in the Code itself or in the special or local law sought to be subordinated to it. We do not think that this objection is sound as a general proposition. If there is a special or local law laying down some procedure contrary to that prescribed by the Code or conferring some special jurisdiction or power, then, in the absence of anything else, the Code must give place to it by reason of the provisions of Section 4. But if, say, there is a third Act which says that notwithstanding anything contained in the Code or in the special or local law, the Code shall apply in some matter covered by the latter, we do not see why such a provision will not be a 'specific provision to the contrary' within the meaning of Section 4. The real question is whether there is in fact such a specific provision to the contrary in Section 31, Presidency Small Cause Courts Act. The material portion of that section is in the following terms:

The procedure prescribed by the Code of Civil Procedure for the execution of decrees by Courts other than those which made them shall be the procedure in such cases.

26. By 'such cases' is meant cases where a decree of a Presidency Small Cause Court is transferred to a civil Court for execution. Now, Section 4, Civil P.C., provides that

in the absense of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

27. We are not concerned with the first part of the section which speaks of special or local laws in force when the Code was enacted, but only with the latter part. A specific provision to the contrary as to that part must be a provision to the effect that the special jurisdiction or power or form of procedure, conferred or prescribed by the particular law, shall be subject to the provisions of the Code. It may be said that Section 31, Presidency Small Cause Courts Act, makes and could make no reference to the Bengal Agricultural Debtors Act and the section contains no specific provision to the effect that the special form of procedure prescribed by the Bengal Act and the special jurisdiction conferred thereby on Debt Settlement Boards will be subject to the provisions of the Code as to the execution of Presidency Small Cause Court decrees by the civil Courts. The argument was not advanced before us, but if advanced, it would probably be correct, on a strict view of the words 'specific provision'; and the contention that the exclusion of the Code, enacted in Section 4, is overcome by Section 31, Presidency Small Cause Courts Act, might perhaps be adequately met by it. But' assuming it is correct, it does not dispose of the question before us.

28. It will be observed that what Section 31 makes applicable to the execution by civil Courts of decrees of Presidency Small Cause Courts on transfer, is not the Code as such, but 'the procedure prescribed by the Code of Civil Procedure.' Had the section enacted that 'the Code of Civil Procedure shall apply,' it might reasonably be said that the Code including Section 4, had been made applicable and the limitations contained in the Code itself would necessarily go along with it. In that event, the contention advanced on behalf of the Advocate-General of Bengal that although the Code had been made applicable, in general terms, each of its provisions, contrary to the special Act, would be excluded, not by anything contained in the special Act but by virtue of Section 4, would have been a correct contention and there would obviously be no repugnancy. But Section 31 does not speak of the Code as such, but of the procedure prescribed by the Code, which means the procedure as it is to be found there. There is no room for any modification of the procedure by any special or local or other law, nor any room for the application of Section 4. What the section does is that it addresses itself to a portion of the Code, takes over the procedure as to the execution of transferred decrees as it is prescribed there and then directs that that procedure, unqualified and as it is, shall be applied. The procedure applies to the execution by civil Courts of Presidency Small Cause Court decrees, not by virtue of the Code of its own force, nor by virtue of the Code on its being made applicable as such, but by the force of Section 31, Presidency Small Cause Courts Act, which simply borrows the procedure from the Code and enjoins that it shall be applied. It is clear that in such circumstances Section 4 of the Code cannot operate at all and equally clear that the possibility of the procedure being modified by some other law is altogether excluded. What Section 31 directs is that the procedure, as prescribed in the Code, shall be applied, not that the procedure as it may be controlled by other laws-from time to time or to the extent that it may not be excluded thereby, shall apply.

29. It was contended on behalf of the Advocate-General of Bengal that Section 31 merely removed the bar contained in Section 8 and 0. 51, B. 1 of the Code and made certain further provisions of the Code applicable to Presidency Small Cause Courts. The contention is altogether incorrect. The provisions, referred to, deal with proceedings in the Presidency Small Cause Courts and -have nothing to do with proceedings in the civil Court with which Section 31 is concerned.

30. It was contended in the next place that Section 31 merely prescribed a procedure and did not confer any jurisdiction on the civil Court. This contention, in our view, is not correct and even if correct, would not affect the question before us. Section 8 of the Code provides that Sections 38 to 41 thereof shall extend to a suit or proceeding in a Presidency Small Cause Court. These provisions cover the proceedings for the transfer of a decree of the Small Cause Court which would take place in that Court, but some other provision is required to confer jurisdiction on the transferee Court to execute the decree, after it-has been transferred. It is doubtful if Section 42 of the Code can be such provision, for if it were, the transferee Court would have under it the same powers in executing the decree as if it had, been passed by itself and it would not have been necessary to provide specially by Section 31, Presidency Small Cause Courts Act, that the procedure prescribed by the Code would apply to the execution. It would thus seem that even the-jurisdiction comes through Section 31. In any event, the provision that the procedure prescribed by the Code shall apply, involves that the Court shall have jurisdiction to apply that procedure; and even if Section 31 be limited to procedure, a repugnancy as to procedure would be as much a repugnancy as a repugnancy as to jurisdiction and if there be a repugnancy, it is repugnancy to an existing Indian law, i.e. the Presidency Small Cause Courts Act with respect to a matter in the Concurrent Legislative List, i.e., Civil Procedure Code.

31. But is there a repugnancy? In our opinion, there is and it arises in the following way. Section 31, Presidency Small Cause Courts Act, by its concluding part, directs that when a civil Court has to execute, on transfer, a decree of a Presidency Small Cause Court, the procedure for the execution shall be the procedure laid down in the Code for the execution of a decree of one Court by another. It cannot be said that this section merely provides that if the decree can be and is executed at all by a civil Court on transfer, the procedure shall be that prescribed in the Code. The portion, above quoted, is only the adjectival part of the section which, by its principal provision, clearly intends that if execution of the decree cannot be had through the Small Cause Court which passed it, for the reason that the judgment-debtor had no movable property within its jurisdiction, the decree may be sent to the civil Court within whose jurisdiction the judgment-debtor has any movable or immovable property and executed there. The effect of the concluding part is to make applicable the ordinary procedure for execution, as laid down in the Code, for the latter does not prescribe any special procedure for the execution by a Court of a decree of another Court, but on the other hand provides that the transferee Court is to execute the decree as if it had been passed by itself. When, therefore, a civil Court receives a decree of a Presidency Small Cause Court on transfer, it must, if it finds the application for execution made to it under Order 21, Rule 10 to be in order, direct that the decree be executed. It must thereafter issue process under Rule 24 and carry out the execution to the end, only staying the proceeding, if moved to do so under Rule 26, in order to enable the judgment-debtor to obtain an order for stay or some other order from the Court which passed the decree. If a civil Court, when thus in seizin of a decree o a Presidency Small Cause Court for the purposes of execution, received a notice under Section 34, Bengal Agricultural Debtors Act, the position which results, so far as that section goes, is that if the decretal debt has been included in an application under Section 8 or a statement under Section 13(1) and the decree constitutes a debt, i.e., a liability of the kind specified in Section 2(8), of a 'debtor' as defined in Section 2(9), the proceeding must be stayed; and if, ultimately, the decretal debt is included in the Board's award or the Board decides that the debt does not exist, the proceeding shall abate. If Section 34 stood by itself, the Court would be entitled to see, before it stayed the proceeding, that the conditions laid down in the section were satisfied. We need not consider the case where the decretal debt is not included in any application or statement before the Board, for, in such a case, the notice is plainly without jurisdiction and the execution case may always be proceeded with. But assuming the decree was included; if the Court found that a decree of a Presidency Small Cause Court did not constitute a 'debt' within the meaning of the Bengal Agricultural Debtors Act, it would be entitled to disregard the notice and proceed with the execution. In such ease, there would be no repugnancy between Section 34, Bengal Agricultural Debtors Act, and Section 31. Presidency Small Cause Courts Act, for the position would be that the Bengal Act did not purport to legislate with respect to Presidency Small Cause Court decrees at all, or to affect their execution in accordance with Section 31, Presidency Small Cause Courts Act, and if any particular Board erroneously served a notice under Section 34, on a civil Court executing such a decree, the latter was free to disregard the Board's action. If, however, the Court found that the decree was a debt within the meaning of the Bengal Act, there would be a repugnancy, for, the position would be that while Section 31 of the Indian Act-directed that the decree should be executed by the civil Court, Section 34 directed that it must not be executed for the time being and, in certain events, might no longer be executed at all. If such be the repugnancy between the two Acts under Section 34, regarded by itself - a repugnancy dependent upon whether a liability under a decree of the Presidency Small Cause Court is or is not a debt within the meaning of the Bengal Act - the repugnancy under Section 34, read with Section 20, is greater and absolute. Under the two sections, read together, the civil Court, executing the decree, cannot even consider whether it at all constitutes a debt in the special sense of the Bengal Act, but must stay the proceeding before it, on receipt of the notice, without question. The position, therefore, is that while Section 31, Presidency Small Cause Courts Act enables, and even requires, the transferee Court to execute the decree, Section 34 of the Bengal Act, read with Section 20, disables it altogether from doing so, as soon as it is served with a notice, even if the liability under the decree may not be a debt at all. The proceeding may even abate, if the decretal debt is absorbed in the Board's award or declared not to exist. It is clear that the disability of the civil Court under the two sections of the Bengal Act is wholly inconsistent with its power and duty under Section 31 of the Indian Act.

32. In dealing with Section 20, we have referred only to that part which deals with the question as to whether a liability is a debt or not. The remainder of the section is equally repugnant to the powers of the civil Court, but no question of its invalidity for that reason can arise, since-it was enacted by the original Act.

33. It may be said with some plausibility that the real question is whether the liability under a decree of the Presidency Small Cause Court is a debt within the meaning of the Bengal Act. For if it is not, the Act does not purport to affect such decrees at all, it does not intend that if a question arises under Section 20, the Board should decide that such a decree is a debt and it does not intend that execution of such a decree by a civil Court should be arrested by a notice under Section 34. If, nevertheless, such a decree is decided to constitute a debt or a notice is served on a civil Court executing it, that is only a case of a mistake on the part of an individual Board. But the fact that someone misconstrues the Act and misapplies it in a manner which makes it repugnant to Section 31, Presidency Small Cause Courts Act, cannot make the Act itself repugnant, if in reality it does not touch Presidency Small Cause Court decrees. This argument would be correct, but for Section 20. That section enables the Board to enforce its error on the civil Court. By reason of its provisions, the Act must be accepted by the civil Court as administered by the Board and even if it be not in fact repugnant to Section 31, Presidency Small Cause Courts Act, not being applicable to Presidency Small Cause Court decrees, it is, in its application, repugnant, since such application, even if erroneous, cannot be questioned or ignored by the civil Court, There is thus, in any event, a repugnancy.

34. Our conclusion, therefore, is that between Section 20, Bengal Agricultural Debtors Act, as amended, and Section 34 of the same Act, as substituted, by Bengal Act 8 [VIII] of 1940 and Section 31, Presidency Small Cause Courts Act, there is a repugnancy and the said two sections of the Bengal Act are, to the extent of such repugnancy, void, for the reason that assent of the Governor-General to the amending Act was not obtained. The two sections, so far as they bear on execution of decrees of the Presidency Small Cause Court by a civil Court, are invalid. It follows that the notice under Section 34, served in the present case, was a nullity and the executing Court was not bound to stay the proceedings on its receipt.

35. In our opinion no other question arises. If Section 34 read with Section 20 and in its relation to the present case, be void, the notice was per se a nullity and the Munsif was entitled to disregard it on that ground alone. Having disregarded it, he could have no further reason to enquire whether the liability under the decree was or was not a 'debt' as denned in the Act. Even if it were a 'debt' it would make no difference to the further prosecution of the execution proceedings. This is not a case where there is no fundamental want of authority to serve a notice on the civil Court and the validity of the notice depends on whether the particular liability is within the jurisdiction of the Board. In such cases, the Court might, as it did before the power was taken away, go into the question as to whether the liability concerned was a debt as denned in the Act and there was a point in doing so, for, it would comply with or disregard the notice according as it found the liability to be or not to be a debt. The provision for giving notice was valid as a statutory provision, but the validity of a particular notice depended on a mixed question of fact and law which required to be investigated. But where, as in the present case, the notice is void altogether, being issued under a void statute and there is no power in the Board to control the Court by a notice, the field before the Court is clear and there is no reason why it should think of the Bengal Agricultural Debtors Act at all. The only impediment to the carrying on of the execution proceedings was the notice; the notice being found to be a nullity, the impediment is removed and there is nothing else to stand between the executing Court and the further prosecution of the proceedings before it and nothing to require it to pause and consider whether the decree does or does not constitute a debt within the meaning of the Bengal Agricultural Debtors Act. The question is wholly irrelevant.

36. But since the matter was argued before us at length, we might briefly indicate our Opinion thereon. In our opinion, whatever doubt there might have been on the question previously, there can be none, after the amending Act of 1940, that the liability under a decree of a Presidency Small Cause Court is not a debt within the meaning of the Bengal Agricultural Debtors Act. The Act, by Section 2(8), defines 'debt' as including all liabilities of a debtor, 'whether payable under a decree or order of a civil Court or otherwise.' It was held in the case of Tarak Nath Kundu v. Panchanan Dutt : AIR1939Cal564 that a decretal debt, if it did not come under the first part of the definition, for the reason that the Court which had passed the decree was not a civil Court, would not be drawn in by the phrase 'or otherwise' occurring in the second part. A decretal debt would have to come under the definition as payable under a decree of a civil Court, or it would be outside the definition altogether. Previously the term 'civil Court,' which had not been defined in the Act, had been held to mean only the Courts established under the Civil Courts Act. The Legislature, by the amending Act, sought to meet the effect of these decisions only by adding a definition of 'civil Court' and including therein the High Court on its appellate side, but did not, in this respect, amend the definition of 'debt' in any way. In other words, it widened the content of the first part of the definition of 'debt' incorporating more decretal debts there through an enlarged definition of 'civil Court,' but made no use of the phrase 'or otherwise.' In the circumstances, it must be held that the Legislature accepted the view that a decretal debt could not be a debt within the meaning of the Act by virtue of the phrase 'or otherwise' but must come under the first part of the definition as a liability payable under a decree of a Court which is a 'civil Court.' It is a well-known rule of construction that if after a provision in an Act has been judicially construed, the Legislature amends the Act, but does not, by the amendment, override the construction adopted, it must be deemed to have accepted the construction. The definition of 'civil Court' now added, does not include the Presidency Small Cause Court and it follows that a liability, payable under a decree of that Court, is not a debt within the meaning of the Act.

37. In the result, we hold that the learned Munsif was not right in taking the view that the notice received by him from the Debt Settlement Board compelled him to stay the execution proceedings. Nor was he right in thinking that there was a question to be considered as to whether the liability under the decree was a debt or not and that but for the bar created by Section 20, he would have to consider and would consider it. The notice was void and there was nothing to comply with or consider. The rule is accordingly made absolute, the order of the learned Munsif, dated 28th April 1943, is set aside and he is directed to proceed with the execution of the decree. As there was no appearance on behalf of the opposite parties, either before the Division Bench or before us, there will be no order as to costs. Let the records be sent down as early as possible. It is certified that the case involves a substantial question of law as to the interpretation of the Government of India Act, 1935.


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