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Sri Gobinda Chowdhuri Vs. Maharaja Rao Jogendra Narayan Ray and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal812,153Ind.Cas.304
AppellantSri Gobinda Chowdhuri
RespondentMaharaja Rao Jogendra Narayan Ray and ors.
Cases ReferredJogodanund Singh v. Amrita Lal Sircar
Excerpt:
- .....of the amending act that the words used are perfectly general. no distinction is made between the sale held before the act and that held after. if the intention of the legislature was that it should not apply to sales held before the act it would be necessary to substitute for the wide and general words 'sale held under the regulations,' 'all sales under the regulation,' some such words as 'sales to be held' or 'hereafter held.' there is nothing in the new provisions which would justify such limitation and there is no rule or presumption which requires that general words should be so limited in their meaning: (see in this connexion the judgment of viscount haldane in municipal council of sydney v. margaret alexandra troy, 1928 pc 128. again this new right conferred by section 14-a on.....
Judgment:

Nasim Ali, J.

1. This is a Rule calling upon the opposite parties to show cause why the order of the District Judge of Pabna refusing the application of the petitioner for setting aside a patni sale Under Section 14-A, Patni Regulation, should not be set aside. The facts giving rise to the rule are as follows:

2. A patni belonging to the petitioner was sold under the Patni Regulation at the instance of the opposite party No. 1, the zamindar, on 15th May 1933 and was purchased by the opposite parties 2 and 3 for Rs. 16,000 out of which Rs. 4,000 was deposited on that day. On 18th May 1933, Bengal Act 4 of 1933 came into operation. By this Act the defaulting patnidar was given the right of getting the patni sale set aside on conditions analogous to those contained in Section 174, Ben. Ten Act and Rule 89, Order 21, Civil P. C. On 22nd May the purchasers deposited the balance of the purchase money. On 13th June 1983 the petitioners applied to the Collector under the new provisions which are now contained in Section 14-A, Patni Regulation for setting aside the patni sale. The opposite parties having objected to the petitioner's application, the Collector referred the matter to the District Judge Under Section 14(a), Clause 5 of the Regulation. The learned District Judge dismissed the petitioner's application on the grounds that the new provisions contained in Section 14-A do not apply to sales held before they came into operation. He also held that the application of the petitioner Under Section 14-A was not in order inasmuch as it was not signed and verified by the petitioner. The petitioner thereupon moved this Court and obtained the present rule on the following grounds:

3. (a) That the Court below has failed to exercise a jurisdiction vested in it by law in dismissing the application for setting aside the sale and in thus refusing to set aside the sale on the ground that Section 14-A of the Patni Regulations as amended by Bengal Act 4 of 1933 had no application to the sale in question. (b) That in the absence of any law prescribing any particular form of application the Court below erred in holding that the application required signature of the applicant himself or verification by him and was wrong in saying that the same as made was irregular.

4. The argument on behalf of the petitioner in support of the first ground consists of two parts. The first part is to the effect that the Bengal Act 4 of 1933 simply lays down a rule of procedure and there is therefore no presumption against its retrospective operation. The second part is to the effect that even if the Act touches a right in existence (assuming that the purchaser's right to get complete title to the property on payment of the balance of the purchase money is a right in existence which has been touched), the language used by the Legislature, the conditions about the payment of 5 per cent of purchase money as compensation to the purchaser, the scope and object of the Act, indicate that the Legislature intended the application of the Act not only to sales held after the new Act came into operation but also to sales held within 30 days from the date when the new Act came into force. These two branches of the contention require separate consideration.

5. In support of the first branch of the argument reliance was placed upon the decision of this Court in the case of Jogodanund Singh v. Amrita Lal Sircar, (1895) 22 Cal 767 in which the effect of Section 174, Ben. Ten. Act and Section 310-A, Civil P. C. of 1882 on proceedings in execution pending at the time when those provisions of law came into operation was considered by this Court. It is true that there are some general observations in that case which support the contention of the petitioner. The learned counsel who has appeared to oppose the Rule, however, contended that the sale in that case was held after the new provision came into operation and that the actual decision in the case must be taken as confined to sales held after the new Act came into force. In my opinion, the general observations made in that case must be read along with the facts of the case in which the decision was given and the point which had to be decided. The actual decision in that case therefore must be taken as confined to sales held after the new Act came into operation. In such a case the question whether the vested right of the auction purchaser is interfered with or not by the new provision for setting aside the sale on deposit of the money due does not arise. In support of the second branch of the argument reliance was placed upon the following observations of their Lordships of the Judicial Committee in the case of Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner Delhi, 1927 PC 242, viz:

The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irwing, (1905) AC 369 where it is in effect laid down that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be tentatively inadmissible, have retrospective effect attributed to it, provisions which touch a right in existence at the passing of the statute will not be applied retrospectively in the absence of express enactment or necessary intendment.

6. Now by Section 2, Bengal Act, 4 of 1933 the words 'unless he makes an application Under Section 14-A,' were added at the end of Section 14 of the Patni Regulation, 1819. It is not disputed that Section 14 without the words added by the new Act would apply to all sales held either before the Act or after. The addition of the words by the new Act indicates that the Legislature intended to provide an additional remedy to all defaulters. By Section 3 of the Act a new section viz., Section 14-A was added to the Patni Regulations. By Section 4 of the Act for the words in Section 15 of the Patni Regulation, viz., so soon as the entire amount of the purchase money shall have been paid by the purchaser at any sale made under the regulation' the following was substituted namely:

On the expiry of thirty days from the date of any sale made under this regulation or if there has been a resale within thirty days of the original sale if the entire amount of the purchase money has been paid by the purchaser and if no application Under Section 14-A to set aside the sale is pending.

7. It is clear from the sections of the amending Act that the words used are perfectly general. No distinction is made between the sale held before the Act and that held after. If the intention of the Legislature was that it should not apply to sales held before the Act it would be necessary to substitute for the wide and general words 'sale held under the regulations,' 'all sales under the regulation,' some such words as 'sales to be held' or 'hereafter held.' There is nothing in the new provisions which would justify such limitation and there is no rule or presumption which requires that general words should be so limited in their meaning: (see in this connexion the judgment of Viscount Haldane in Municipal Council of Sydney v. Margaret Alexandra Troy, 1928 PC 128. Again this new right conferred by Section 14-A on the defaulting Patnidar was created expressly on the condition that the purchaser at the sale must be paid five per cent of the purchase money, which ordinarily would be a sufficient compensation. Turning now to the scope and object of the new Act it appears that before this amending Act, the Patni Regulation contained no provisions which could enable the defaulting Patnidar to have the sale set aside by depositing the arrears of rent even if the property was sold at a very inadequate price. The Patnidar had to suffer this loss as a necessary evil. It was for redressing the evil that Section 14-A was added to the Patni Regulation and as it is a remedial provision it ought to be liberally construed (see in this connexion the observations in Jogodanund Singh v. Amrita Lal Sircar, (1895) 22 Cal 767 at c. 780). The words used in the Act, the conditions imposed on the defaulting patnidar to pay five per cent of the purchase money as compensation to the purchaser, the object and/purpose of the Act, indicate that the Act was intended to apply to all sales held under the Regulation whether the sale was before the Act came into operation or after. The learned Judge was not justified in rejecting the application on the ground that Section 14-A was not applicable to the sale in the present case. The argument in support of the second ground is that there is no provision of law under which the application Under Section 14-A must be signed and verified by the applicant. We are of opinion that the application for setting aside the sale is not required by law to be signed and verified by the applicant. The petition was signed by a Pleader who was duly authorized to file the application. There is therefore no substance in this objection of the opposite parties.

8. It was contended on behalf of the opposite parties that this Court could not interfere with the order of the District Judge Under Section 115, Civil P. C., even if the construction put upon Section 14-A by the District Judge be erroneous. It was contended that such an error would be only an error of law. But if we are right in the view which we have taken about the operation of Section 14-A the District Judge was bound upon the application of the petitioner to set aside the sale under that section and not having done so he failed to execise jurisdiction vested in him by law and consequently his order is open to revision by this Court. The result therefore is that this rule is made absolute and the order of the District Judge dated 13th November 1933 refusing to set aside the patni Under Section 14-A of the Patni Regulation is set aside. We direct that the sale of the Patni be set aside as no other objection was pressed before us. We further direct that out of the money deposited by the petitioner, (a) a sum of money equal to one per cent of the purchase money be paid to Government for the purposes specified in the second clause of Section 17; (b) a sum of money equal to the amount on account of which the sale has been made together with interest and all charges incurred in bringing the Patni to sale be paid to the zamindar opposite party No. 1; and (c) a sum of money equal to five per cent of the purchase money be paid to the purchaser at the Patni sale. We also direct that the purchase money daposited by the purchaser be refunded to them. We further order that the Receiver appointed in this case of the defaulting patni, be discharged, subject to passing his accounts in the lower Court. In view of the facts and circumstances of the case, we make no order as to costs either in this Court or in the Court below.

Lort-Williams, J.

9. I agree.


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