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Girish Chundra Basu Vs. Apurba Krishna Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal940
AppellantGirish Chundra Basu
RespondentApurba Krishna Dass and anr.
Cases Referred and Deb Narain Dutt v. Narendra Krishna I.L.R.
Excerpt:
civil procedure code (1882), section 310-a - act v of 1894, section 2--construction of statute--act creating new rights, effect of--execution of decree--sale in execution of decree held after act v of 1894 came into operation, the execution proceedings being commenced before--retrospective enactment when applicable to pending proceedings. - .....upon the provisions of section 310a, which by that act was directed to be inserted in the code of civil procedure, applied to the court which had held the sale, to set it aside upon payment to the purchaser of a sum equal to five per centum of the purchase-money, and to the decree-holder the amount specified in the proclamation of sale; and the munsif has under that section set aside the sale. if the provisions of act v of 1894 were intended to have retrospective effect, the munsif was right in making the order he did; otherwise the order was without any authority. as the law (act xiv of 1882) stood before the said act came into force, a person purchasing a property at an execution sale would be entitled to have the sale confirmed unless it were proved that there was material.....
Judgment:

Ghose, J.

1. The question raised in this rule is whether the provisions of Act V of 1894 are applicable to proceedings commenced before that Act came into operation. The decree in this case was pronounced on the 5th January 1894; the application for sale in execution thereof was made on the 30th January; the sale proclamation published in February 1894; and the sale was held on the 26th March 1894. In the meantime, i.e., on the 2nd March 1894, the Act in question was passed and came into operation. The judgment-debtor, relying upon the provisions of Section 310A, which by that Act was directed to be inserted in the Code of Civil Procedure, applied to the Court which had held the sale, to set it aside upon payment to the purchaser of a sum equal to five per centum of the purchase-money, and to the decree-holder the amount specified in the proclamation of sale; and the Munsif has under that section set aside the sale. If the provisions of Act V of 1894 were intended to have retrospective effect, the Munsif was right in making the order he did; otherwise the order was without any authority. As the law (Act XIV of 1882) stood before the said Act came into force, a person purchasing a property at an execution sale would be entitled to have the sale confirmed unless it were proved that there was material irregularity in publishing or conducting the sale, and that substantial injury was caused by reason of such irregularity (Sections 311 and 312). Act V of 1894 so far modified this provision as to provide and insert after Section 310 that 'any person whose immoveable property has been sold under this chapter may at any time, within thirty days from the date of the sale, apply to have the sale set aside on his depositing in Court: (a) for payment to the purchaser a sum equal to five per centum of the purchase-money, and (b) for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder,' and that 'if such deposit is made within thirty days the Court shall pass an order setting aside the sale.' The Act (V of 1894) is entitled to be 'an Act to amend the Code of Civil Procedure,' and it is stated that 'it shall come into force at once.' Now I take the rule of construction in a matter like this to be, as it is stated by Wilson, J., in Deb NarainDutt v. Narendra Krishna I.L.R. 16 Cal. 267 and Tupsee Singh v. Ram Sarum Koeri I.L.R. 15 Cal. 376 that 'retrospective effect is not ordinarily given to an enactment so as to affect substantive rights, but that provisions affecting mere procedure are applied to pending proceedings,' and that 'an enactment affecting rights of property is not to be so construed as to give retrospective effect, unless the intention that it shall have such effect clearly appears.'

2. It has been contended that the provisions contained in the new Section 33 OA are merely matters of procedure, that it finds its place in an Act which is a Code of Procedure, and that upon the wording of Act V of 1894 itself it is clear that it is intended to have retrospective effect. A question similar to this, so far as the first branch of the argument is concerned, was considered by two Full Benches of this Court in Lal Mohun Mukerjee v. Jogendra Chunder Roy I.L.R. 14 Cal. 636 and Uzir Ali v. Bam Komal Shaha I.L.R. 15 Cal. 383, This was with reference to Section 174 of the Bengal Tenancy Act, the language of which is very similar to that of Section 310A of Act V of 1894; and it was held that Section 174 was not a mere matter of procedure, but conferred a new and substantive right, and that in the absence of any indication of intention that the provision was to operate retrospectively it did not, by the ordinary rules of construction, apply to proceedings under a decree passed before the Act came into operation. If the rule of law, laid down in these two cases, is to be followed, I do not see how it can be held in this case that Section 310A is a matter merely of procedure, and does not confer upon a judgment-debtor a new and substantive right, which he did not possess under the Code as it stood before the amending Act was passed. It has, however, been said that the Act, in which s- 310A has been incorporated, is merely a Code of Civil Procedure, and the section has been inserted in a chapter which deals with the execution of decrees, and lays down rules as to the sale of immoveable property; whereas Section 174 is a part of the law of landlord and tenant, which deals with matters of substantive right. It will, however, be found upon an examination of the Bengal Tenancy Act that it deals with procedure as well as substantive rights, and Section 174 finds a place in a chapter entitled 'Sale for arrears under a decree,' a chapter which, while it lays down what are 'protected interests' and the power conferred upon a purchaser to annul encumbrances, prescribes certain special procedure for, and rules connected with, sales. And if a provision like that, which is contained in Section 174 of the Bengal Tenancy Act, is not a matter of mere procedure, but confers a substantive right, I do not see how it can be held that, because it finds a place in a Code of Civil Procedure, it is nothing but procedure, and does not confer a substantive right. As I have already pointed out, in the event of a sale taking place under the Code of Civil Procedure, a purchaser is entitled (barring, of course, a case of fraud or other abuse of the process of the Court) to have the sale confirmed, unless it is proved that there has been a material irregularity in the publishing and conducting of the sale, and unless substantial injury has been occasioned by such irregularity. Section 312 of the Code says that 'if no such application, as is mentioned in the last preceding section, be made, or if such application be made, and the objection be disallowed, the Court shall pass an order confirming the sale as regards the parties to the suit and the purchaser,' and so on. The words are 'shall pass an order confirming the sale.' Section 310A, however, provides that, if within thirty days from the day of sale the judgment-debtor pays up the decree, and in addition a sum equal to 5 per centum upon the amount of the purchase-money, the Court 'shall pass an order setting aside the sale.' I think, following the Full Bench decisions already referred to, that this provision does confer a substantive right upon the judgment-debtor to have the sale set aside, and that in derogation of the right, imperfect though it may be, which the Code gives to a purchaser. This, I am disposed to think, is not a mere matter of procedure to which retrospective effect should be given. As to the argument derived from the language of the amending Act itself, I must confess that the matter is not free from difficulty, but, after the best consideration I have been able to give to it, I am inclined to think that the provisions of the Act are not clear enough to indicate that it was the intention of the Legislature that it should have retrospective effect. The Act no doubt provides that it shall come into force at once, that Section 310A is to be inserted in the Civil Procedure Code, and that it applies to a sale held under this chapter; but these circumstances are not, to my mind, sufficient to indicate that the privilege conferred thereby upon a judgment-debtor was intended to apply to a sale, the proceedings in relation to which had already been taken, 'under the chapter' as it existed before Section 310A was incorporated in it. I observe that where the Legislature have thought that an Act should have retrospective effect they have said so either in express words, or by clear implication, e.g., Section 10, Act IV of 1893, and Section 21 of the Bengal Tenancy Act. Upon all these grounds I am of opinion that Act V of 1894 has no retrospective effect so as to apply to the sale in question.

Trevelyan, J.

3. The question before us is whether Act V of 1894 has a retrospective effect and applies to proceedings in execution commenced before that Act came into force. There is in my opinion nothing on the face of the Act to show that the Legislature intended it to have a retrospective effect. There is an absence of express provision for retrospective operation such as is to be found in Section 10 of Act IV of 1893, and similar provisions in other Acts. There are no words used which in any way indicate that the Legislature intended a retrospective effect. The phraseology of the section which is added by the Act in question to the Code of Civil Procedure is such as to fit into the Code and to be read with the other provisions of the Code. There is nothing in the words of the section which indicates an intention to do more than merely supplement the provisions of the Code. It has been so drawn as to be read into the Code, and its form has, in my opinion, that object only. That form has no reference to whether its operation is to be retrospective or only prospective. There are certain cases, such as those to be found at page 165 of Wilberforce's Statute Law, 1st edition, where particular words have been held to show by implication that the Legislature intended retrospective operation to be given to the provisions of a Statute. I can find nothing of the kind here. Moreover, in considering this question, I think one is entitled to assume that the Legislature had in view the state of the authorities in this Court on this subject. The recent decisions of Full Benches of this Court on similar provisions of the Bengal Tenancy Act, to which I shall presently refer, must be taken to have been in the contemplation of the Legislature; the more so, as since the decision of those cases, we find that when they intend to give retrospective operation to an Act they do so in express terms.

4. There remains the question as to whether retrospective operation should be given to this enactment on the ground that it relates to procedure only. I do not think it necessary for us to examine this question as if it were 'res integra.' The matter is in my opinion concluded by authority. I fail to find any real distinction between the decisions of the Full Benches of this Court in the cases of Lal Mohun Mukerjee v. Jogendra Chunder Boy I.L.R. 14 Cal. 636 and Uzir Ali v. Bam Komal Shaha I.L.R. 15 Cal. 383 and the present case. Section 174 of the Tenancy Act contains a provision similar to the one in Act V of 1894. In the case, Lal Mohun Mukerjee v. Jogendra Chunder Boy I.L.R. 14 Cal. 636 the Full Bench pointed out that that provision created a new right which judgment-debtors did not possess under the old Act. Similarly here, the new Section 310A confers upon judgment-debtors a new right which they did not possess under the Civil Procedure Code as unamended, as pointed out by the Full Bench in Uzir Ali v. Ram Komal Shaha I.L.R. 15 Cal. 381. The case of Lal Mohun Mukarjee v. Jogendra Chunder Roy I.L.R. 14 Cal. 636 held that Section 174 was not a matter of mere procedure, but conferred a substantive right. It is sought to distinguish these cases by the fact that the provisions of the Tenancy Act are in the main provisions of substance and not of procedure. This is to my mind no answer. Many Acts which are in the main Acts otherwise than of procedure deal also with matters of procedure. In the same way Acts of Procedure occasionally deal also with rights. It is always necessary to see whether the particular provision is one of mere procedure or dealing with rights. Two Full Benches have held that a section equivalent to the section in question is not a matter of mere procedure, but confers a substantive right. I think that until the Legislature deals with this matter we are bound to follow these decisions. I would make the rule absolute with costs.

O'Kinealy, J.

5. This is a rule obtained by Girish Chundra Basu, the auction-purchaser at a stile held under the Civil Procedure Code, against the decree-holder and judgment-debtor, calling upon them to show cause why the decision of the Munsif in the Court below, dated the 30th April 1894, declaring that Section 310A, which is a new section added to the Procedure Code by Act V of 1894, did not apply to the sale, should not be set aside. Act V of 1894 proposes to amend the Code of Civil Procedure. In Clause 2 of Section 1 it declares that it shall come into force at once; and in Section 2 it declares that after . Section 310 of the Civil Procedure Code the following section, namely, Section 310A, shall be inserted. The question, therefore, which we have to decide is whether, on the well-known rules of construction, Section 310A is a rule of procedure or one which destroys any vested interest in the purchaser existing before its enactment. In the course of the argument before us reference has been made to three cases decided in this Court. The first case is that of Lal Mohun 'Mukerji v. Jogendra Chunder Roy I.L.R. 14 Cal. 636. The decision in that case was a decision with reference to the provisions of Section 174 of the Bengal Tenancy Act. That Act is an Act to amend and consolidate certain enactments relating to the law of landlord and tenant-an Act which, on the face of it, creates substantive rights and interests in the soil to be carried out to a large extent under the procedure of the Civil Procedure Code. In that case it was decided that Section 174 of that Act had not retrospective effect. The next case-is the case of Tupsee Singh v. Ram Sarun Koeri I.L.R. 15 Cal. 376. In that case it was decided that Section 21, Sub-section 2 of the Bengal Tenancy Act had retrospective effect,, and applied to suits pending at the date of the commencement of that Act. The third case is the case of Deb Narain Dutt v. Narendra Krishna I.L.R. 16 Cal. 267. That was a case depending upon the construction of the Rent Act, and Section 6 of the General Clauses Consolidation Act, namely, Act I of 1868. The general rule of decision applicable in all these cases was that retrospective effect is not ordinarily given to an enactment so as to affect substantive rights; but that provision affecting mere procedure apply to pending cases. I accept that principle, but I accept it also with the reservation pointed out by Mr. Justice Wilson in Deb Narain Dutt's case at page 270 that there is no use in citing one Act for the purpose of construing another, no more than there is to refer to the construction of one document as a guide to a Judge in construing another. In both cases the rules laid down to guide us in coming to a conclusion are the same.

6. Each enactment, as it is in the case of each document, must be construed by itself according to the intention of the framers. If, therefore, we turn to Section 310A to find out whether it is a section of procedure or one affecting a substantive right, we have the following circumstances to guide us, Act XIV of 1882 is an Act to consolidate and amend the laws relating to Procedure of Courts of Civil Judicature. On the face of it is an Act of Procedure and nothing mere. It provides the form and manner of conducting and carrying on suits through their various stages from commencement to final judgment and execution according to principles and rules laid down in the Act itself. In form, in name, and in substance it professes to deal with matters of procedure and not matters of right. Chapter XIX of the Code deals with execution of decrees. This Chapter is divided into several parts of which A describes the way in which decrees may be executed; B deals with applications for execution; C deals with staying execution; D refers to questions for the Court executing a decree; E describes the modes of execution; F refers to attachment of property, and G is that portion of the Code which has been amended by the section in question and treats of sale and delivery of the property. This last division is still further sub-divided : (a) contains the general rules under which sales and delivery of property should be made; (b) lays down rules as to moveable property; and (c) prescribes rules as to immoveable property. It is in this sub-division (c), that is to say, in the rules prescribed as to how a Court should sell immoveable property, that Section 310A is directed to be inserted. It seems to me what the Legislature intended was to amend the rules of the Civil Procedure Code in regard to sale and delivery of immoveable property. That seems to me both in form and substance a rule of procedure under which no party has a vested interest. For these reasons alone I am of opinion that the rule should be discharged. But in addition to this I think there are other reasons which > ought to bring us to the same conclusion. Section 310A provides that if a person applies under Section 311 he shall not get the benefit of Section 310 A. It appears to me that Section 311 refers to matters of procedure and procedure only. It is not therefore unreasonable to presume that when two alternative remedies are prescribed, and one of them is a matter of procedure, the other ranks no higher. Apart, however, from the interpretation that I have put upon Act V of 1894, there seems to be other objections to making this rule absolute. Under Section 316 of the Code a purchaser has no vested interest in the property before the date of his certificate. If before that date the judgment-debtor pays into Court the amount due, the execution would cease, and the purchaser could not insist upon the sale being confirmed and a certificate being given to him. Moreover, as pointed out in the decision of their Lordships of the Privy Council in the case of Prosunno Kumar Sanyat v. Kali Das Sanyal I.L.R. 19 Cal. 683 that when a question arises under Section 244, the fact that the purchaser, who is not a party to the suit, is interested in the result, has never been held to be a bar to the application of Section 244. Now, the question to be decided under Section 310A is one which falls under Section 244. By Section 2 of the Code the determination of any question mentioned or referred to in Section 244, but not specified in Section 588, is within the definition of 'decree' and I observe that the matter dealt with in Section 310A is not specified in Section 588. If therefore we were to make such a rule absolute it would be to allow a person who has no vested interest in the property, nor the carriage of the suit, to ask the Court to decide, as between him and the parties to the suit, a point which is properly the subject of appeal between the partie Section It seems to me that that is not a position in which we ought to place ourselves. For all these reasons I would discharge the rule.

Norris, J.

7. I have had the advantage of considering the judgment that has been delivered by Mr. Justice Ghose. I entirely agree in the reasoning therein adopted and in the conclusion arrived at.

W. Comer Petheram, C.J.

8. On the 5th of January 1894 Jogendra Nath Banerjee obtained a, money decree against Apurba Krishna Dass for Rs. 36, and on the 30th of the same month applied to execute the decree. The' property now in question was duly attached in the execution proceedings, and on the 8th of February a notification was issued by which it was notified that the property would be sold on the 26th of March. On the 2nd of March the Civil Procedure Code Amendment Act 1894 came into operation. On the 26th of March the property was sold and purchased by Girish Chundra Basu, the present petitioner. On the 17th of April the judgment-debtor applied under Section 310 A of the Civil Procedure Code to have the sale set aside, and on the 30th the Munsif made an order under that section setting it aside. This rule was afterwards obtained from this Court on the application of the purchaser to set aside the order of the Munsif and to affirm the sale. Baboo Askutosh Mukerjee in support of the rule has relied on three Full Bench cases of this Court-Lal Mohun Mukerjee v. Jogendra Chunder Boy I.L.R. 14 Cal. 636, Uzir Ali v. Ram Komal Shaha I.L.R. 15 Cal. 383, and Deb Narain Dutt v. Narendra Krishna I.L.R. 16 Cal. 267. In the first two of these cases the question turned on the construction of Section 174 of the Bengal Tenancy Act, and in them the learned Judges held that when a decree had been obtained before that Act had come into operation the judgment-debtor could not avail himself of that section, although the sale took place after the Act had come into operation. Mr. Justice Mitter in giving the judgment of the Court in the first case says: 'Section 1 74 of the Bengal Tenancy Act confers upon the judgment-debtors a new right which they did not possess under the old Act. Therefore the presumption is (in the absence of express legislation or direct implication to the contrary) that its operation is not intended to be retrospective.' The second case merely followed the first. In the third case the question arose under Section 170 of the Bengal Tenancy Act, and the judgment is only useful to us in the present case, in so far as Mr. Justice Wilson in. delivering the judgment states the rule which should guide Courts in such- cases. At page 272 he says: 'The rule is that retrospective effect is not ordinarily given to an enactment so as to affect substantive rights, but that provisions affecting mere procedure are applied to pending proceedings.'

9. The object, to attain which Section 174 of the Bengal Tenancy Act was enacted, resembles very closely that to attain which the Civil Procedure Code was amended by the addition of Section 310A. The two Full Benches of this Court have held that the object was attained in the case of the Bengal Tenancy Act by the creation of a new right, and not by a mere change of procedure, and we are no doubt bound to follow those decisions. The words used in the Civil Procedure Code Amendment Act, 1894, are however very different from those used in the Bengal Tenancy Act, and the Act in which the amendments are made is one of an entirely different description from the Bengal Tenancy Act, it being one whose sole purpose is to provide and regulate the procedure of the Civil Courts, and as for these reasons the present case is not identical with those in the two Full Bench cases it is not concluded by them, though in deciding it we must be guided by the principles which are enunciated in those cases. I am of opinion that upon those principles, both as they are explained by Mr. Justice Mitter in the first case and by Mr. Justice Wilson in the second, this sale is subject to the provisions of the Civil Procedure Code as amended by the Act of 1894; in other words, that it is subject to the provisions of Section 310A of the Code. The new section appears in Chapter XIX of the Code which is headed 'Of the execution of decrees,' and is the Chapter which provides the machinery by which a successful litigant may obtain the fruits of the decree which has been made in his favour. By this machinery a person who has obtained a decree for money could, before the 2nd of March 1894, realise his claims by having the property of his debtor sold by the Court unless the money is paid before the sale, and all that the new section has done, as far as the decree-holder and his debtor are concerned, has been to extend the period, during which the debtor may discharge his liability by payment, for 30 days beyond the date of the sale. This in my opinion is a mere modification of the mode in which the successful litigant may obtain the fruits of his decree, and is strictly within Mr. Justice Wilson's definition of the principle in the passage which has already been quoted. But even if we were bound, in consequence of the decision of the Full Bench in the first case, to hold that the new section of the Code created a new right in the judgment-debtor, still I think that the result will be the same, as in my opinion the words used in this Act bring it strictly within the exception mentioned by Mr. Justice Mitter, in delivering the judgment of the Full. Bench in the first case. The Act of 1894 came into operation on the 2nd of March, and from that day Section 310A has been as much a part of the Civil Procedure Code as any other section of it. The section on its face applies to all sales under the Code, and this according to the ordinary meaning of words must mean the Code as it exists at the time when the sale takes place; and by using the words which have been used the Legislature have, in my opinion, expressly enacted that this section shall have retrospective effect in the sense that it shall take effect on sales made after the Act had come into operation, though the execution proceedings of which the sale was a part had been commenced before it had come into operation. I would only further remark that no injustice can result from this reading of the section, as it does not effect any interest which was in existence before the 2nd of March, the purchaser not having acquired any until the 26th, at which time the new law was in force. For these reasons I am of opinion that this rule should be discharged.

10. The result is that in accordance with the opinion of the majority of this Bench the rule will be made absolute with costs.


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