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Kalidas Saha Vs. Rai Kiran Chandra Roy Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKolkata
Decided On
Reported inAIR1942Cal521
AppellantKalidas Saha
RespondentRai Kiran Chandra Roy Bahadur and ors.
Cases ReferredJ. In Satish Chandra v. Sudhir Krishna
Excerpt:
- .....into force on 9th january 1941. briefly, the point of law argued in this appeal is whether it has retrospective effect. in resisting the appeal, mr. sen raised a further point whether the order of attachment was effective. he relied on the judgment of the privy council in muthiah chetty v. palaniappa chetti ('28) 15 a.i.r. 1928p.c. 139. the relevant passage is in these words:their lordships need not repeat in another form these propositions. the order is one thing, the attachment is another. no property can be declared to be attached unless first the order for attachment has been issued, and secondly, in execution of that order the other things prescribed by the rules in the code have been done. 2. in the present case there was nothing which required to be done in the second court and.....
Judgment:

Henderson, J.

1. This appeal is by the decree-holder. It raises a point in connexion with the effect of Section 168A, Ben. Ten. Act. The appellant obtained a decree for rent against the respondents. There was some money lying in another Court in connexion with the execution of a decree obtained by the respondents against a third person. The appellant applied for attachment of this money and an order in terms of the prayer was made on 8th January 1941. The order reached the Court in question that same afternoon. The new Section 168A, Ben. Ten. Act, came into force on 9th January 1941. Briefly, the point of law argued in this appeal is whether it has retrospective effect. In resisting the appeal, Mr. Sen raised a further point whether the order of attachment was effective. He relied on the judgment of the Privy Council in Muthiah Chetty v. Palaniappa Chetti ('28) 15 A.I.R. 1928P.C. 139. The relevant passage is in these words:

Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly, in execution of that order the other things prescribed by the rules in the Code have been done.

2. In the present case there was nothing which required to be done in the second Court and the attachment became effective as soon as the order was received there. The learned Munsif thought that the attachment could not becomeeffective until Rule 782 of the Civil Rules and Orders, was complied with. This rule certainly tends to prevent these orders from being mislaid, overlooked or suppressed. But failure to comply with it will not entitle the Court to pay money out in defiance of the order of attachment. The attachment, therefore, was validly effected on 8th January 1941. It is accordingly necessary to consider whether the enactment of Section 168A has rendered the attachment infructuous. On this point, Mr. Sen contended that Section 168A merely modifies the law of procedure, and must, therefore, be given retrospective effect in the absence of any express provision to the contrary, Sub-section (2) was accordingly misconceived and redundant. Mr. Das argued on the other hand that the appellant has been deprived of a right to realize his debt from this particular fund. The point had to be considered by my learned brothers Nasim Ali and Pal JJ. In Satish Chandra v. Sudhir Krishna : AIR1942Cal429 . The dispute in that case was whether the section was ultra vires. In dealing with that point the learned Judges had to consider whether the section prescribes a special form of procedure, and came to the conclusion that it does. The fact remains, however, that the section specifically deals with the question of retrospective effect. The relevant Sub-section is as follows:

In any proceeding pending on the date of the commencement of the Bengal Tenancy (Amendment) Act, 1940, in execution of a decree or certificate to which the provisions of Sub-section (1) apply, if there has been attached any immovable property of the judgment-debtor other than the entire tenure or holding to which the decree or certificate relates, and if the property so attached has not been sold, the Court or certificate officer as the case may be shall on the application of the judgment-debtor direct that on payment by the judgment-debtor of the costs of the attachment, the property so attached shall be released.

3. The draftsman approached the question from the standpoint that the section will not have retrospective effect in the absence of express provision to the contrary. This Sub-section (2) makes such provision. If the draftsman had approached the question from the stand point that the section would have retrospective effect in the absence of an express provision to the contrary, this Sub-section would have been drafted in the converse way. But it cannot be merely brushed aside as redundant. The words are there and some meaning must be attached to them. In my judgment, the only reasonable interpretation is that the intention of the Legislature was that retrospective effect was to be confined to the case set out in the Sub-section. The appeal is accordingly allowed. The orders of the Courts below are set aside, the objection under Section 47 of the respondents is dismissed, and I direct that the money attached be paid out to the decree-holder. The judgment-debtors will pay the costs of the appellant in all Courts. Hearing fee is assessed at one gold mohur.

4. 7th July 1942. -- Leave to appeal under Clause 15, Letters Patent, is granted on the undertaking given in the application filed on 3rd July 1942.


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