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Rai Anath Nath Bose Vs. Maharaja Sris Chandra Nandy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal529
AppellantRai Anath Nath Bose
RespondentMaharaja Sris Chandra Nandy
Cases ReferredIn Balfour v. Malcolm
Excerpt:
- .....india act, 1935, came into operation. mr. banerji for the judgment-debtor has contended that the words 'civil court' in the section include the high court and he has taken us through the relevant parts of the act. i am unable to agree to that contention. when the legislature wishes to refer to the high court, it does so in clear and explicit terms. if mr. banerji's contentions were correct, then both the acts would purport to cut down the powers of this court in its original jurisdiction to execute its decrees. we had before us in 1939 the case in narsingdas tansukdas v. choge mull : air1939cal435 . that concerned the meaning of the words 'civil court' (with initial capital letters) as in this case, as used in the bengal agricultural debtors act of 1935. both the bengal agricultural.....
Judgment:

Derbyshire, C.J.

1. The plaintiff decree-holder has asked for execution of the remainder of his decretal amount, a sum of Rs. 1,60,050, by attachment and sale of certain properties belonging to the defendant which are now in possession of the Cossimbazar Raj Wards Estate. The contention of the judgment-debtor is that these properties are protected from execution under the decree by reason of the provisions of Section 10C, Bengal Court of Wards Act of 1879. Section 10C of the Act was introduced into it by Section 5 of Act 6 of 1936 passed by the Bengal Provincial Legislature. That section reads as follows:

(1) Where any property is in charge of the Court of Wards no civil Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935, or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.

In calculating the period of limitation applicable to an application for the execution of a decree or order, the time during which the execution of such decree or order is barred under this sub-section shall be excluded.

(2) Except as provided in Section 23A, no property in charge of the Court of Wards shall be sold by any revenue authority under any law so long as the Court remains in charge thereof.

2. The decree in question is a decree made by the Calcutta High Court in the exercise of its ordinary original civil jurisdiction. The execution proceedings are also brought under the ordinary original civil jurisdiction of the Court. The judgment-debtor contends that the Calcutta High Court is, as regards its original civil jurisdiction, a civil Court within the meaning of Section 10C The original Bengal Court of Wards Act was passed by the Bengal Local Legislature in 1879 and the amendment which added Section 10C was passed by the Bengal Local Legislature in 1935, the Act itself being published in the Calcutta Gazette of 5th March 1986. The two Acts were passed by the Local Legislature before the Government of India Act, 1935, came into operation. Mr. Banerji for the judgment-debtor has contended that the words 'civil Court' in the section include the High Court and he has taken us through the relevant parts of the Act. I am unable to agree to that contention. When the Legislature wishes to refer to the High Court, it does so in clear and explicit terms. If Mr. Banerji's contentions were correct, then both the Acts would purport to cut down the powers of this Court in its original jurisdiction to execute its decrees. We had before us in 1939 the case in Narsingdas Tansukdas v. Choge Mull : AIR1939Cal435 . That concerned the meaning of the words 'civil Court' (with initial capital letters) as in this case, as used in the Bengal Agricultural Debtors Act of 1935. Both the Bengal Agricultural Debtors Act of 1985 and the Bengal Court of Wards Act of 1935 were passed by the same legislative authority, the Bengal Provincial Government. Both received the assent of the Governor. General. I quote from my own opinion in that case (at p. 110) in which the majority of the Court (Bartley and Nasim Ali JJ.) concurred:

In Balfour v. Malcolm (1842) 8 Cl & Fin 485 at p. 500, Lord Campbell said : 'There can be no doubt that the principle is, that the jurisdiction of the Supreme Courts can only be taken away by positive and clear enactments in an Act of Parliament.' Substitute for the word 'Parliament' the words 'the appropriate and competent Legislature' and the observation applies in the present case.

3. At page 112:

If the words 'civil Court' include the High Court then the Bengal Agricultural Debtors Act passed by the Local Legislature in 1935, and assented to by the Governor General on 29th March 1936, clearly cuts down the powers of the High Court to hear suits and execute its decrees which it has derived from 13 Geo. III, c. 3, through the Supreme Court, and from the High Courts Act, the Letters Patent and the Government of India Act, and so interferes with the Government of India Act. That, it appears to me, would be contrary to Section 80A, Sub-section (4), Government of India Act, which provides that:

The Local Legislature of any province has not power to make any law affecting any act of Parliament.

4. Then further on:

I cannot construe the Bengal Agricultural Debtors Act as enacting something contrary to the Government of India Act, when another construction is possible and yet consistent with the purpose and meaning of the Act as a whole.

5. The Government of India Act referred to there is the Government of India Act, 1919. Those observations apply with equal force in the present case. If we were to construe the words 'civil Court' as including the High Court certainly in its original jurisdiction - we should be construing the Act as enacting something contrary to the Government of India Act of 1919 when another course of construction is possible and consistent with the purpose and meaning of the ]Act. I see no reason whatever to think that the words 'civil Court' in the Bengal Court of Wards Act mean other than they meant in the case I have referred to the Court of the District Judge, the Court of the Additional Judge, the Court of the Subordinate Judge and the Court of the Munsif. In my view, there is no doubt about the construction of the Act. The words 'civil Court' do not include the High Court. An argument has been raised by Mr. Banerji which I must say something about although in my view it has no application at all. Mr. Banerji has referred us to the India and Burma (Existing Laws) Act, 1937, chap. 9, Section 1, Sub-section (i), para. 1:

A law passed or made before the said date by a Legislature or other competent authority in British India, and not previously repealed, is, for the removal of doubts, hereby declared to be a law in force immediately before that date, notwithstanding that it, or parts of it, may not then be in operation, either at all or in particular areas.

6. He then contends that by virtue of that provision the Act in question - the Bengal Court of Wards Act-as it stood immediately before the passing of the Government of India Act, 1935, is by that law declared to be valid. I am not clear that the words 'in force' mean the same thing as valid. But I will assume, in order to follow Mr. Banerji's argument, that they do. Then says Mr. Banerji, the Act being valid, a construction can be put upon the words 'civil Court' so that they mean the High Court and that such construction can be put on now after the passing of the Act of 1937, although it could not be put on before. It is a curious argument. The only comment I can make on it is that the Bengal Court of Wards Act means exactly the same-after the passing of the 1937 Act as it did before. Before the passing of that Act, the only proper construction that could be put upon it as regards the words 'civil Court' was that the Legislature was intending to act within its powers and not to go beyond them, as it would have done had it used the words 'civil Court' to include the High Court. In my view the argument is an ingenious, but an ineffectual attempt to drag in the Government of India Act of 1935 and the orders made under it. But in my view it has nothing whatever to do with the case. For those reasons I am of the opinion that the decree-holder's contention does not avail. In my view when the true facts of the case are examined no question here arises as to the validity of the Bengal Court of Wards Act. Consequently, there is no reason why the decree-holder's application for execution should not be granted. Attachment will issue for the balance of the sum mentioned, namely, Rs. 124,657-12-8. Mr. Ghose's client is entitled to his costs. Certified for one counsel. Certificate under Section 205, Government of India Act, 1935, is refused.

Panckridge, J.

7. I agree with what has fallen from my Lord, the Chief Justice.

Nasim Ali, J.

8. I agree with the order which my Lord, the Chief Justice, has made in this case.


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