Skip to content


Mamtazul Huq and ors. Vs. Nirbhai Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal711
AppellantMamtazul Huq and ors.
RespondentNirbhai Singh
Cases ReferredGureebullah Sircar v. Mohun Lall Shaha I.L.R.
Excerpt:
beng. act viii of 1869, section 58 - limitation--landlord and tenant--execution of decree--instalments. - .....been used as the starting point for limitation in the limitation acts. and the expression 'date of decree,' or order, or judgment, is used several times in this act, as in sections 53 and 103, and always, so far as i can see, in its ordinary sense.5. i think the governing intention to be collected from section 58 is that small decrees shall not in any event be kept hanging over judgment-debtors for more than three years; and i think that the express provision by which effect is given to that intention must override any provision of the procedure code introduced by the general terms of section 34, even if the effect were to render the provision of the procedure code wholly in operative. this, however, is not quite the case. no doubt, the limits within which a decree for payment by.....
Judgment:

Prinsep, J.

1. I have had the advantage of seeing the judgments of my learned colleagues in this case, and I entirely concur in the opinion expressed by Mr. Justice WILSON. I would only add, as I have already stated in the case of Gureebullah v. Mohun Lall Shaha I.L.R. 7 Cal. 127: 8 C.L.R. 409 that if a reference to the Code of Civil Procedure is necessary to interpret the terms 'date of judgment' used in Section 58, Beng. Act VIII of 1869, we find in Section 185 Act VIII of 1859, and also in Section 202, Act XIV of 1882, that the 'judgment shall be dated by the Judge in open Court at the time of pronouncing it,' and this is supplemented by Section 189 of the former Act and by Section 205 of the Code of 1882; both of which declare that the decree shall bear date the day on which the judgment was passed.' I also confirm the experience of Mr. Justice McDonell, that until the decision of the case of Gureebullah Sircar v. Mohun Lall Shaha I.L.R. 7 Cal. 127: 8 C.L.R. 409 this view of the law, has always been accepted by our Courts ever since I have held judicial office.

Wilson, J.

2. I would answer the question referred to us in the affirmative.

3. Section 58 of the Rent Act VIII of 1869 is clear in its terms: 'No process of execution of any description whatsoever shall be issued on a judgment in any suit for any of the causes of action mentioned in Sections 27, 28, 29 or 30 of this Act, after the lapse of three years from the date of such judgment unless the judgment be for a sum exceeding five hundred rupees.'

4. I am unable to agree with the view expressed in Gureebullah Sircar v. Mohun Lall Shaha I.L.R. 7 Cal. 127: 8 C.L.R. 409 that the date of the judgment ought to be read as meaning the date at which the sum adjudged is made payable. The date of a decree or judgment and the date of payment under a decree, or judgment are two distinct points of time, each of which has frequently been used as the starting point for limitation in the Limitation Acts. And the expression 'date of decree,' or order, or judgment, is used several times in this Act, as in Sections 53 and 103, and always, so far as I can see, in its ordinary sense.

5. I think the governing intention to be collected from Section 58 is that small decrees shall not in any event be kept hanging over judgment-debtors for more than three years; and I think that the express provision by which effect is given to that intention must override any provision of the Procedure Code introduced by the general terms of Section 34, even if the effect were to render the provision of the Procedure Code wholly in operative. This, however, is not quite the case. No doubt, the limits within which a decree for payment by instalments can be made under the Procedure Code, are practically very much narrowed by Section 58 of the Rent Act, and within those limits, I have no doubt that such a decree ought not to be made except by consent, and then not without very great caution: but I suppose such a decree might in some cases properly be made, provided the effect of Section 58 of the Rent Act be alsays kept in view.

McDonell, J.

6. I think we are bound to construe Section 58 of Beng. Act VIII of 1869 strictly, and to hold that the application for execution in the case referred to us is barred by limitation. I entirely agree with the opinion expressed now by my brother Judges (Prinsep and Wilson) and also by Mr. Justice Maclean in the referring order. It seems to me that the intention of the framers of Section 58 of Beng. Act VIII of 1869 was to prevent any decree for rent when not exceeding Rs. 500 being kept pending over the heads of judgment-debtors for more than three years under any circumstances, and as far as my experience goes, it is only lately that any different construction has been put upon this section. In the view held by the majority, the appeal must therefore be dismissed with costs.

Mitter, J.

7. The decision of the question referred to us turns upon the true construction of Section 58 of Beng. Act VIII of 1869. It is clear that if we are to follow the construction which the language of the section strictly suggests quite apart from any other consideration, we must come to the conclusion that the application for execution in this case is barred by limitation. It is also unquestionable that we have no right to add to or subtract from the language of a legislative enactment, unless there are adequate grounds for the inference that the Legislature intended something which it has failed precisely to express.

8. It seems to me that there are adequate grounds for the inference, that the language of Section 58 does not precisely express the intention which the Legislature had in framing it.

9. Whether for gathering the intention of the Legislature or for construing the words used for expressing that intention, one of the cardinal rules of construction is, that all the parts of a legislative enactment should be read together.

10. Now Section 34 of the Act says: 'Save as in this Act is otherwise provided, suits of every description brought for any cause of action arising under this act, and all proceedings therein shall be regulated by the Code of Civil procedure passed by the Governor-General in Council, being Act No. VIII of 1859, etc.'

11. The effect of this section would be to incorporate the provisions of Section 194 of Act VIII of 1859 without any modification, unless the contrary were provided in any other part of the Act. Is the contrary provided in any other part of the Act? This question must be answered in the negative, unless it can be said that it is so provided by implication by Section 58 itself

12. It is clear that Section 58 does not contain any express provision upon this point; nor does it appear to me reasonable to infer from it that the Legislature intended that the provisions of Section 194 of Act VIII of 1859 should be incorporated in the former Act with some modification. It is evident that the provisions of the two sections would be repugnant to one another, if we are to put a literal construction upon Section 58. It would be preposterous to hold that in a suit for rent not exceeding Rs. 500, the Legislature under Section 194 conferred upon the Courts the power of ordering in the decree that the amount adjudged shall be paid by instalments, the first of which shall fall after three years from the date of the decree, and at the same time to put a strictly literal construction upon Section 58. Most incongruous consequences would arise from a construction of that nature, because the Legislature in that case would be saying in one and the same breath that a decree of the description mentioned above may be legally passed, but it would be impossible for the decree-holder, under any circumstances, to execute it.

13. Therefore, unless we can say that there are valid grounds for the inference that the Legislature did not intend to extend the provisions of Section 194 of Act VIII of 1859 at all to the classes of suits not exceeding Rs. 500, mentioned in the first part of Section 58 of Beng. Act VIII of 1869, or to extend it with this modification, that the instalments shall range within three years, we must come to the conclusion that the language used in Section 58 fails to express precisely its real intention. I do not think that there are any adequate grounds for the inference that the Legislature intended that the defendants in the suits mentioned in Section 58 should not have the benefit under Section 194 of Act VIII of 1859 conferred upon impecunious debtors, or should have that benefit considerably curtailed. It must be borne in mind that, in the latter case, the time for executing the decree would be shortened by the time which elapses between its date and the dates of the respective instalments. I can imagine no reasonable ground which would lead the Legislature to place the decree-holders in these cases in any disadvantageous position.

14. Furthermore, it seems to me that the necessity for the exercise of the discretionary power under Section 194 of Act VIII of 1859 would arise more frequently in suits for rent than in any other class of suits for money.

15. I come to the conclusion, therefore, that the language of Section 58 of Beng. Act VIII of 1869 fails to express precisely the intention of the Legislature which was to provide that, in the class of suits mentioned in the first part thereof, the execution must be sued out within three years from the date or the dates when the amount or the amounts decreed became payable.

16. In another respect also the Legislature in the language used in Section 58 has failed to express its true intention. It is quite evident that it intended in that section to provide for the limitation of the execution of decrees in all kinds of suits that may be instituted under the Act, because there is he other section upon the subject, and the, Section 34 extended to suits of this description only, the Civil Procedure Code and not the law of limitation applicable to civil suits generally. It is also evident that the Legislature intended that there should be one rule of limitation in respect of suits of the value not exceeding Rs. 500, and another: rule regarding the rest.

17. That being the intention of the Legislature, let us see how far the language used expresses, it accurately. The section is to the following effect: 'No process of execution of any description whatsoever shall be issued on a judgment in any suit for any of the causes of action mentioned in Sections 27, 28, 29, or 30 of this Act, after the lapse of three years from the date of such judgment, unless the judgment be for a sum exceeding Rs. 500, in which case the period within which execution may be had shall be regulated by the general rules in force in respect to, the period allowed for the execution of decrees of the Court,' Now, in order to designate the class of suits in which the value of the subject-matter exceeds Rs. 500, the Legislature uses the words 'unless the judgment be for a sum exceeding Rs. 500. 'This description, if literally construed, would exclude suits for the possession of lands valued above Rs. 500. But there cannot be any doubt that the Legislature intended to include this class of suits in the last part of the section because there is no reason why simple money claims should have a longer period of limitation than claims for land. It would appear from the Acts relating to limitation of suits generally that the policy of the Legislature is just the contrary. Longer periods are generally allowed to suits for land than for money claims.

18. For the foregoing reasons, I am of opinion that the Legislature in the first part of Section 58 intended to provide for decrees under Rs. 500 other than those passed under Section 194 of Act VIII of 1859, or Section 210 (the corresponding section) of the present Civil Procedure Code, and that in the latter part it intended to lay down a rule of law applicable to the execution of all other classes of decrees. But it has failed to express this intention precisely by the language of the section. Under these circumstances, in order to give full effect to the intention of the Legislature, it is open to us to modify the language of the law. The cases bearing upon this subject, which are all collected in the 9th Chapter of a text-book on the interpretation of statutes by 'Maxwell, show to what extent it is allowable to modify the language of an Act, in order to carry out the intention of the Legislature.

19. In order to give effect to the intention of the Legislature with reference to Section 58, it would not, I think, be an unwarrantable modification of its language if we read it thus: 'No process of execution of any description whatsoever shall be issued on a judgment in any suit for any of the causes of action mentioned in Sections 27, 28, 29 or 30 of this Act (not being a decree under Section 194 of Act VIII of 1859 or Section 210 of Act XIV of 1882 after the lapse of three years from the date of such judgment, unless the judgment be for a sum exceeding Rs. 500, in which case (and in all other cases) the period within which execution may be had shall be regulated by the general rules in force in respect of the period allowed for the execution of decrees of the Court.'

20. Having regard to the cases collected in the 9th Chapter of Maxwell on the interpretation of Statutes already referred to, it seems to me that the above modification of the language of Section 58 is not, as I have already said, unprecedented or unwarranted.

21. There are some Indian cases in which modifications of a similar nature in the language of a legislative enactment have been made by the Judges.

22. In Rhidoy Krishna Ghose v. Kailash Chundra Bose 4 B.L.R. F.B. 82: 13 W.R. F.B. 3 it was held, with reference to Section 92 of Act X of 1859, of which Section 58 of Beng. Act VIII of 1869 is a re-enactment, that the words 'be issued' should be altered into 'be sued out.'

23. In Kangalee Churn Ghosal v. Bonomalee Mullick B.L.R. Sup. Vol. 709 Sections 20 and 21 of Act XIV of 1859 were almost reconstructed; but in Bai Udekwar v. Mulji Naran 3 Bom. H.C. A.C. 177 Couch. C.J. was of opinion that the Judges in Kangalee Churn Ghosal's case had overstepped the limits allowed to the Judges to modify the language of an Act in the matter of construction.

24. The cases which bear the closest analogy to the present are Ultaf Ali Khan v. Ram Lal Agra H.C.F.B. 83; Gopala Setty v. Damodara Setty 4 Mad. H.C. 173; and Utam Ram Manik Ram v. Girdhar Lal Moti Ram 6 Bom. H.C. A.C. 45. In these cases the same question which is now before us was virtually raised. The language of Section 20 of the Limitation Act of 1859, like that of Section 58 of Beng. Act VIII of 1869, did not fit in well with the provisions of Section 194 of Act VIII of 1859, and it was held in these cases that 'when a decree awards payments by instalments to be made at particular specified dates, the date when each instalment becomes due is to be deemed the date of the decree in respect of that instalment for the purpose of calculating the time within which execution may be issued to enforce payment of it.'

25. For these reasons I am of opinion that in this case the execution of the decree under our consideration is not barred by limitation.

Richard Garth, C.J.

26. I regret that I am constrained to differ in this case from the majority of the Court; but I still think it right to adhere to the view which was taken by Mr. Justice Morris and myself in the case of Gureebullah Sircar v. Mohun Lall Shaha I.L.R. 7 Cal. 127; 8 C.L.R. 409.

27. We all know that, as a general rule, the language of an Act should be strictly construed; and of course under ordinary circumstances the date of a judgment means the day on which the judgment is delivered.

28. The decision of the Privy Council, which is quoted in the reference, does no more than affirm this general rule, and there was no reason, apparently, in that case why the rule should not be followed.

29. But here, as explained by my brother Mitter, J., we have a provision in the Rent Law, which, if construed strictly, would conflict with, or at any rate render nugatory, an enactment in the Civil Procedure Code, in a very large, class of cases, where that enactment is especially needed.

30. Under these circumstances I think we should do our best to reconcile, as far as we can, the two enactments, and to put such a construction upon the language of the one, as not to curtail the beneficial effects of the other.

31. In the result, therefore, I agree with my brother Mitter that the execution in the case is not barred by limitation.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //