Ayub Ali vs Harinarayan Kanu and Another

Ram Labhya, J.—This Miscellaneous Appeal is directed against an order of the Subordinate Judge, U. A. D., dated 20-l&�2, by which the objection of the judgment debtor the competency of the Court to proceed with the execution was disallowed.

The facts giving rise to the appeal are as follows: The suit which ended in the decree sought to be executed, was admittedly pending on 15-8-47 in a Court at Sleet. It was decreed on 30-1-48. The decree-holder obtained a navigates faction certificate, which was received by the Court at Silchar in May 1949. The application for execution was also filed in the Court of the Subordinate Judge at Silchar on 21-5-49. At that time the non-satisfaction certificate had been received.

The objection of the judgment-debtor to the jurisdiction of the Court to proceed with the execution of the decree, is not sound. The case was fully covered by the provisions contained in Section 4 of the Indian Independence-(Legal Proceedings) Order, 1947. The section provides that "notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947:

all proceedings pending immediately before the appointed day in any civil or criminal Court other than a High Court) in the Province of Bengal, the Punjab, or Assam, shall be continued in that Court as if the said Act had not been passed, and that Court shall continue to have, for the purposes of the said proceedings, all the Jurisdiction and powers which it had immediately before the appointed day.

The effect of the provision is that the Court at Sleet, notwithstanding the partition of the country, could proceed with the case as if the partition had not taken place, and that for the purposes of the case its powers under the CPC were not affected. It could, therefore, pass a decree and could also transfer the decree for execution to the Court at Silchar, as the suit was pending immediately before the appointed day.

The transfer of the decree for execution also was completed by 21-5-49. The transfer, therefore, was perfectly legal at the time it was made. The execution application also war, competent. The Court at Silchar had jurisdiction. The Independence Act and the. Indian Independence (Legal Proceedings) Order were both in force at that time, and the decree could be validly transferred to the Court at Silchar.

Mr. Deb the learned Counsel for the Appellant has, however, argued that even if the application was competent when filed, the Court lost its jurisdiction when the Indian Independence Act was subsequently repealed. The Indian Independence (Legal Proceedings) Order, which was promulgated by virtue of provisions contained in the Independence Act, also lost all effect. No action taken under the Indian Independence (Legal Proceedings) Order of 1947 could, therefore, retain its validity after the repeal of the parent Act.

In support of his contention, he has relied on a decision of the Allahabad High Court reported in Seth Jugmendar Das and Others Vs. State, in which it was held that Section 6 of the General Clauses Act would not apply to the repeal by the Constitution of any Act as the Constitution is not a Central Act or a Regulation. It is argued that the'' Indian Independence Act has been repealed by the Constitution of India which is not a Central Act or a Regulation within the meaning of S. 6, General Clauses Act. This section, therefore was not applicable to the repeal. It provides that

where this Act or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (c) affect any right privilege obligation or liability acquired, accrued or incurred under any enactment so repealed or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty forfeiture or punishment'' may be imposed as if the Repealing Act or Regulation had not been passed.

If Clauses (c) or (e) of Section 6 applies, the proceeding could certainly continue. The contention, how ever, is that Section 6 has got no application, and it cannot be utilised for saving the proceeding which was pending when the Independence Act was repealed. The contention does receive support from the decision reelection. But I feel, with profound respect to the learned Judge, that full elect has not been given by him to the provision'' contained in Article 367 of the Constitution. The provision of the Article is that

unless the context otherwise requires, the General Clauses Act, 1897 shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.

The whole of the General Clauses Act has been made applicable to the Constitution for purposes of its interpretation. The operative part of Section 6 could, therefore, be applied for the interpretation of the Constitution. It would be available for determining the effect of the repeal by the Constitution of the Indian Independence Act. It was made applicable to the Constitution in the same way as it was applicable, by its terms, to any repeal enacted by any Central Act or Regulation. For purposes of the application of Section 6 the Constitution was placed on a level with Central Acts and Regulations referred to in Section 6.

The contention that the repeal of the Independence Act by the Constitution (Art. 395) would not save the pending proceeding, is therefore not sound. Mr. Deb is certainly correct to this extent that the Constitution is neither a Central Act nor a Regulation. He is also right when he urges that S.C, in terms, covers cases where a Central Act or Regulation repeals some enactment, but the Constitution, for purposes of Section 6. is to be treated as though it were a Central Act or Regulation, for, it is expressly provided that the General Clauses Act shall apply for the interpretation of the Constitution, as it applies for the interpretation of an Act of the Legislature of the Government of India.

The Constitution is to be treated as an Act of the Legislature of the Government of India in other words, as a Central Act, for purposes of Section 6, of the General Clauses Act. It is, therefore not necessary that Section 6 of the General Clauses Act should have contained the word "Constitution.'''' By a legal fiction the Constitution has been placed1 on a par with Central Acts for purposes of its interpretation.

The need for Article 367 arose from the fact that, without it, the General Clauses Act, including Section 6, could not be applied for the interpretation of the Constitution. If the interpretation of Article 367, which prevailed in the Allahabad High Court, is correct, Section 6, which is a very important provision of the General Clauses Act, would not apply, but several other provisions would apply. If the intention was to exclude the application of Section 6 or any other particular section, it would have been stated expressly.

In a Division Bench case of the Calcutta High Court, reported in Dungarmull Kissenlal Vs. Sambhu Charan Pandey and Another, the view that prevailed was that notwithstanding the repeal of the Independence Act and the consequent lapse of the Indian Independence (Legal Proceedings) Order of 1947, the execution proceedings transferred before the repeal, retained their validity and could continue in the) transferee Court. The rights and liabilities which had accrued were not affected by the repeal. The learned Judges followed Iswar Madan Gopal Jiu and Others Vs. Province of West Bengal, We are in respectful agreement with the view of the law enunciated in these cases. We hold that the repeal of the Indian Independence Act does not affect the jurisdiction of the Court or the right of the decree-holder to proceed with the execution. The appeal fails and'' is dismissed with costs.

Deka, J.

I agree.