Skip to content


Promathanath Pal Chaudhuri, Shebait of Iswar Lakshmi Jouardon Thakur Vs. Sourav Dasi Chaudhurani and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal210,50Ind.Cas.335
AppellantPromathanath Pal Chaudhuri, Shebait of Iswar Lakshmi Jouardon Thakur
RespondentSourav Dasi Chaudhurani and ors.
Cases ReferredMoore(Moon) v. Durden
Excerpt:
civil procedure code (act v of 1908), section 66 - civil procedure code (act xiv of 1882), section 317--execution sale--auction purchase in benami of another--purchaser, suit by, against benamidar--right of action, accrual of--interpretation of statutes--prospective operation. - .....code applies the suit is barred by section 66, but the appellant contends that his right of suit accrued prior to the coming into force of the present code and that section 817 of the old code was no bar to the suit i think that this is so if the old code applies: see dukhada sundari dasi v. srimonta joardar 26 c. 950 : 3 c.w.n. 657 : 13 ind. dec.(n.s.) 1208, and consequently the only question which arises on this appeal is, whether the plaintiff's right of action accrued prior to the coming into force of the present code on the 1st january 1909. if it did i am disposed to agree with the contention urged on his behalf that having regard to section 6 of the general clauses act, his right is not affected by the wider phraseology of section 66 as compared with section 317 of the old.....
Judgment:

Greaves, J.

1. The plaintiff is the appellant in this appeal. His suit was for a declaration of his title to certain property and the District Judge of Nadia has held--agreeing with the Subordinate Judge of Krishnagar--that the suit is barred by Section 66 of the present Civil Procedure Code. The appellant contends that, this is not so and that Section 66 has no application to his suit. The material facts are as follows: On the 4th or 11th August 1903 the property in suit was purchased in the name of the defendant No. 1, the plaintiff's son, as the plaintiff alleses, benami, at an auction sale held in execution of a money decree. The sale was, we are told, confirmed on the 30th July 1906 and a sale certificate issued to defendant No. 1 on the 24th April 1909. In the month of March 1911, defendant No. 1 agreed to sell the property to defendant No. 2, who commenced a suit for specific performance of the contract on the 9th August 1912, as a result of which the defendant No. 1 conveyed the property to defendant No. 2 in September 1912 with the result that the present suit was commenced on the 14th September 1912. It is not, I understood, disputed that if the present Civil Procedure Code applies the suit is barred by Section 66, but the appellant contends that his right of suit accrued prior to the coming into force of the present Code and that Section 817 of the old Code was no bar to the suit I think that this is so if the old Code applies: see Dukhada Sundari Dasi v. Srimonta Joardar 26 C. 950 : 3 C.W.N. 657 : 13 Ind. Dec.(N.S.) 1208, and consequently the only question which arises on this appeal is, whether the plaintiff's right of action accrued prior to the coming into force of the present Code on the 1st January 1909. If it did I am disposed to agree with the contention urged on his behalf that having regard to Section 6 of the General Clauses Act, his right is not affected by the wider phraseology of Section 66 as compared with Section 317 of the old Code, and indeed quite apart from the General Clauses Act this is only the general law. A Statute is prima facie prospective and does not interfere with existing rights, unless it contains dear words to that effect, or unless, having regard to its object, it necessarily does so: see Lauri v Renad (1892) 3 Ch. 402 at p. 421 : 61 L.J. Ch. 580 : 67 L.T. 275 : 40 W.R. 679, and Halsbury's Laws of England, Volume 27, page 159, and cases there cited. But I think the short answer is that no right of action accrued to the plaintiff (assuming for the moment that apart from Section 66 he has a right of action) prior to March 1911 and I fail to see how it can be said that he had any right of action before that date against defendant No. 2. To hold otherwise would be to deprive the defendant No. 2 of the protection afforded him by Section 66 on the strength of which he may have purchased. It is one thing to say that legislation, unless expressly made retrospective, shall not affect an existing vested right be it of suit or of some other right, but it is quite another thing to say that the same principle applies to a possible right of suit which may arise in future which is not, in my opinion, a vested right at all.

2. The case of Jackson v. Woolley (1858) 8 E. & B. 778 : 27 L.J.Q.B. 448 : 4 Jur.(N.S.) 656 : 6 W.R. 686 : 120 E.R. 289 : 112 R.R. 777, was referred to in the course of the argument on behalf of the appellant and it is cited in Gopeswar Pal v. Jiban Chandra Chandra 24 Ind. Cas. 37 : 19 C.L.J. 549 : 41 C. 1125 : 18 C.W.N. 804, upon which the appellant also relies. Now Jackson v. Woolley (1858) 8 E. & B. 778 : 27 L.J.Q.B. 448 : 4 Jur.(N.S.) 656 : 6 W.R. 686 : 120 E.R. 289 : 112 R.R. 777, is considered in Pardo v. Bingham, (1869) 4 Ch. 735 : 39 L.J. Ch. 170 : 20 L.T. 464 : 17 W.R. 419, and Lord Hatherly at page 740 of the report says of that case and of another case, Moore (Meon) v. Durden (1848) 2 Ex. 22 : 12 Jur. 138 : 154 E.R. 389 : 76 R.R. 479, to which he refers: 'in each of those cases the person had acquired by positive act inter partes, a right of action, in the latter case by a co-contractor having made a promise, which, of course, the person had a right to rely upon as the law then stood, as giving him a further period of six years for his remedy. And in Moore(Moon) v. Durden (1848) 2 Ex. 22 : 12 Jur. 138 : 154 E.R. 389 : 76 R.R. 479, the person had actually brought an action before the Statute passed and to hold the Statute retrospective would have deprived him of a right which he had actually acquired whereas in this case the creditor has not acquired by any act on the part of the debtor any new or fresh right.'

3. In every case that I have been able to find in which a similar question has arisen, there has always been some vested right and not as here a possible right to arise in future.

4. It is of course quite true that if the plaintiff's story is correct, he had a vested right of action against defendant No. 1 from the date of the purchase until the sale certificate was issued on the 24th April 1909 and if his right as against defendant No. 2 had then accrued, I should agree that Section 66 of the present Code was no bar, but I am unable to see that any right against defendant No. 2 accrued prior to March 1911 and by that time the new Code was in operation. Under these circumstances for the reasons stated I think the appeal fails and should be dismissed with costs.

Teunon, J.

5. In this case the material facts have been stated in the judgment just delivered by my learned brother, and it is unnecessary for me to repeat them.

6. I regret that I am unable to concur in the conclusion at which he has arrived.

7. We are agreed, as I understand, that for the reasons given by my learned colleague the provision of law primarily applicable is the provision to be found in Section 317 of the Code of Civil Procedure, XIV of 1882. We are further agreed that on the allegations of the plaintiffs the latter had vested right of action against defendant No. 1 from the date of the purchase.

8. We differ as to the position of defendant No. 2. In my opinion if defendant No. 2 took with notice of plaintiff's claim, the delay made by defendant No. 1 in taking out his sale certificate cannot place defendant No. 2 in a better or more advantageous position than he would have occupied under the Code of 1882.

9. In this view, in my opinion, this appeal should be decreed and the case remanded for trial on the merits.

10. Under the provisions of Section 98(2) of the Code in accordance with the opinion of Greaves, J., this appeal must be dismissed with costs.


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