A.K. Subramania Chettiar vs A. Ponnuswami Chettiar

Govinda Menon, J.—This is an appeal against the order of the Subordinate Judge of Coimbatore dismissing an application made by the Appellant herein u/s 4 of the Madras Indebted Agriculturists (Temporary Relief) Ordinance, 1953, praying that all further proceedings in execution of the decree in Original Suit No. 162 of 1949, in the same Court passed against the Appellant may be stayed until the expiry of one year from the commencement of the Ordinance, namely, until 5th December 1954. The short facts are these.

Original Suit No. 162 of 1949, was a suit by the Plaintiff-Appellant against the Defendant-Respondent for rendition of accounts and in that suit, far from a decree being passed in favour of the Plaintiff, there was a decree of a sum of money passed in favour of the Defendant against the Plaintiff. It is that decree that the Defendant-Respondent sought to execute in Execution Petition Revision No. 34 of 1953, and while that application for execution was pending before the lower Court, Execution Application No. 1261 of 1953, out of which the above appeal has arisen, was filed by the Appellant on 10th December 1953, invoking the provisions of the Madras Indebted Agriculturists (Temporary Relief) Ordinance of 1953. Now the learned Judge dismissed the application on the 9th March 1954, holding that by that time the Ordinance under which relief was sought to be invoked had been repealed and in its stead a new legislative provision, namely, Act V of 1954, had come into existence, and if the Petitioner-Appellant wanted to have the benefits under that new Act, it was open to him to file a fresh application, and if it is found that he is an agriculturist entitled to the benefits of the Act, then he might succeed.

Aggrieved by that decision, the Appellant has come before us and contends that u/s 8(d) and (f) of the Madras General Clauses Act, when there is a repeal of an Act, such a repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment, as well as that it shall not affect any fine, penalty, forfeiture, etc., etc. What is contended before us is that while Ordinance V of 1953, was in force and an application invoking the beneficent provisions of that Ordinance had been made, the Appellant was entitled to a respite from being harassed by the execution of the decree for a period of one year and that right is made secure and confirmed by Clauses (d), (e) and (f) of Section 8 of the Madras General Clauses Act. That the Madras General Clauses Act applies not only to legislative Acts but also to Ordinance promulgated by the Governor is clear from Section 23 of the Act which says that the provisions of the Act should apply in addition to Regulations, etc., to Ordinances as well, so that if u/s 8 the Appellant is entitled to have the respite for a period of one year, then the learned Judge''s order is wrong. We may also note in this connection that Section 8 is contained in Chapter II which begins by Section 4 stating that the Chapter shall apply to all the Madras Acts after the commencement of that Act unless a contrary intention appears in such Acts. We have therefore to see whether a contrary intention appeared in the Ordinance. It is the contention of the decree-holder-Respondent that there is such a contrary intention and, therefore, even if Sub-sections (d), (e) and (f) are applicable, still the Appellant cannot have the stay asked for. Before we proceed further with the discussion of that argument, we have to notice certain dates.

The Ordinance was promulgated by the Governor of Madras on 5th December 1953. It is stated in the preamble to the Ordinance, on account of successive years of drought the agriculturists in the state have suffered very much and though there had been by the bounty of nature adequate rainfall in the year 1953, still the agriculturists should be entitled to some kind of relief. Under Article 213 of the Indian Constitution, Clause (2), an Ordinance promulgated by the Governor shall have effect as an Act of the State Legislature assented to by the Governor. But certain conditions have to be fulfilled and they are that the Ordinance shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council, before both Houses and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving the Ordinance is passed by the Legislative Assembly and agreed to by the Legislative Council, then upon the passing of that resolution and the assent of that Legislative Council, the Ordinance shall cease to have effect. There is an explanation added, namely, where the Houses of the Legislature of a state having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purpose of Sub-clause (2). That means the Ordinance can have effect only at the most till a period of six weeks expires from the summoning of the Legislative Council. Now what happened here was that the Legislative Assembly met on 14th December 1953, and a Bill was introduced wherein the provisions of this Ordinance were incorporated on 8th January 1954. The Bill was passed on 11th January 1954, with certain modifications. It is therefore to be remembered that the Ordinance intact has not received the approval or the assent of the Legislature. The Council met on 28th December 1953, and approved of the Bill as it had been passed by the Assembly on 18th January 1954. The result is that according to the explanation to Article 213(2), if there had not been a passing of the Act, the Ordinance would automatically have expired within six weeks from 28th December 1953. But here the matter is complicated by the fact that the Act in which certain provisions of the Ordinance have been incorporated has not completely accepted the provisions of the Ordinance and such deletions relate to the definition of the words "agriculturist" and a "debt."

It is contended by Mr. Narayanaswami for the Respondent, that the Petitioner here having been assessed to income tax in the years 1951-52 and 1952-53, would not come within the ambit of the definition of an "agriculturist" in Section 2(a) of Madras Act V of 1954, and therefore he will not be entitled to the beneficent provisions of that Act. The definition of the word "debt" also has undergone changes. It is contended that the amount due may not be a debt under that definition. We do not propose to express any opinion on that.

Now the question is, does the repeal of the Ordinance and the substitution of what is contained there by means of an Act with certain modifications, have the effect of continuing the old state of things if the Ordinance had expired by efflux of time? In our opinion, Section 4 of the General Clauses Act which states that unless a contrary intention appears, the provisions of Sub-clauses (d) and (f) will apply, can have no application in this case. A contrary intention has appeared in the passing of the Act itself. It cannot be that the Petitioner would be entitled to a greater benefit after the passing of the Act by the repeal of the Ordinance than he would have had if the Act itself had not been passed. In our view the passages in Craies'' Statute Law at pages 322 and 323, to which our attention was invited by Mr. Narayanaswami have direct application to the present case. The learned Counsel for the Appellant invited our attention to Emperor v. Bans Gopal ILR (1933) All 961. But we do not think that that decision has any application to the facts of the present case. It is open to the Appellant, if he is so advised, to apply afresh and if he comes within the definition of an "agriculturist", he will be entitled to relief. This appeal fails and is dismissed with costs.