Gadhavi Mulu Bhoja vs Gadhavi Shlvubha Govind and Another

Shah, C.J.—The Respondent is the holder of a money decree dated 11-1-1919 against the Appellant who is an agriculturist. In a prior

application for execution he had realised Rs. 900/- by attachment and sale of the Appellant''s movable property. On 9-2-52, no gave Anr.

application for execution of the decree by attachment and sale of the Appellant agricultural land. This land was situated in Jambuda under the

former Nawanagar State.

The Appellant''s defence was that as he was an agriculture attachment in execution of the Respondent''s decree by virtue of the provisions of the

Agriculturists'' Relief Act of the Nawanagar State. We shall refer to this Act for brevity''s sake as the Nawanagnr State Act.

The learned Civil Judge overruled this objection and following the decision in ''Harilal Vanmalidas v. Uka Ata AIR 1953 Sau 1 (A) held that after

the application to Saurashtra of the CPC and the Bombay Land Revenue Cede by Ordinance XXV of 1948, the provisions of the Nawanagar

State Act relating to execution of decrees against indebted agriculturists were repealed by virtue of the provisions of Section 9 (3) of the

Ordinance.

He further held that after coming into force of these Codes the execution of the decree was governed by CPC and the Appellant''s land could be

attached in execution of the decree. This appeal Is against the learned Civil Judge''s abovementioned order,

In order to appreciate the controversy it is necessary to note the history of the relevant legislation in Saurashtra. The Nawanagar State Act

exempted lands of indebted agriculturists from attachment in execution of decree against them.

After the formation of the State of Saurashtra and the merger of the various States, Estates and Talukas of Kathiawar into Saurashtra, Ordinance

No. 1 of 1948 was passed and Section 4 of the Ordinance provided for continuation of the laws of the merged States, Estates and Talukas then in

force unless repealed by subsequent legislation.

Thus the Nawanagar State Act became the law of the Saurashtra State under this Ordinance. By Anr. Ordinance No, XXV of 1948 certain

Central and Bombay Acts were adapted and applied to Saurashtra and were to come in force on a date to be notified by the Government.

The Dominion CPC and the Bombay Land Revenue Code were adapted & applied by this Ordinance and were brought in force on 20-8-1948.

Section 9(3) of this Ordinance provides that all laws in force in the Covenanting States, Estates and Talukas (merged States, Estates and Talukas)

similar to those adapted by the Ordinance shall stand repealed from the date from which corresponding Act comes into force.

Now an agriculturist''s occupancy is alienable and heritable under the Land Revenue Code and it is liable to attachment and sale in execution of a

decree u/s 60, CPC Sections 68 to 72, CPC prescribe special procedure for execution of decrees against agricultural lands.

The learned Civil Judge relying on AIR 1953 Sau 1 (A), held that on the coming into force in Saurashtra of the CPC and the Bombay Land

Revenue Code, the corresponding provisions of the Nawanagar State Act relating to execution of decrees against indebted agriculturists were

repealed by virtue of the provisions of Section 1(3) of the Ordinance and therefore the protection which that Act afforded to the Appellant''s and

was removed and the land became liable to attachment as from the date on which the abovementloned1 Codes came into force.

Harilal''s case (A) was decided by me sitting as a single Judge. Mr. C.N. Shah for the Appellant argued that that case was not correctly decided as

my attention was not drawn to Section 4, CPC which saved special provisions of any special or local law contrary to the provisions of the Code of

Civil Procedure.

His argument was that by virtue of Section 4 of the Code Procedure the Nawanagar State Act prevailed against the general provisions of the Code

Procedure Code relating to the execution of decrees against agricultural land of an agriculturist in the area formerly comprised by the Nawanagar

State.

This argument has some force for the decision does not seem to have taken into account the effect to Section 4 of the Code of Criminal Procedure

which con-trols the provisions of the Code Procedure Code. The learned Advocate General sought to distinguish my decision on the ground that in

that ensue I was called upon to consider the combined effect of the Bombay Land Revenue Code and the CPC and not of the provisions of the

CPC alone; but I think that the distinction is without any substance.

The fact is that agricultural land in the former Nawanagar State whether an occupancy or otherwise was exempt from attachment by the special

law of the Nawane Tar State and that exemption must prevail against the general rule contained in Section 60 of the Code of Civil Procedure. We

must therefore hold that the special exemption from attachment of agricultural land provided by the Nawanagar State Act continued after the Code

of Civil Procedure, was brought Into force into Saurashtra and the Appellant; land continued tot be exempt from attachment,

The next important date is 26-1-1950 when the Constitution of India came into force. The Saurashtra State was till that date an independent

State and its relations with the Dominion of India were governed only by Instruments of Accession signed by the various Covenanting Rulers and

by the Revised Instrument of Accession signed by the Raj Pramukh after the formation of the Saurashtra State.

The CPC as well as the Bombay Land Revenue Code which were brought into force in Saurashtra under Ordinance XXV of 1948 must be taken

to be the local Codes of the Saurashtra State. But after the Constitution the original Saurashtra State lost its existence and a new Saurashtra State''

emerged as a component part of India with the status of a Part ''B'' State.

By Article 372 of the Constitution laws in force in the territory of India immediately before the commencement of the Constitution were to continue

in force until altered or repealed or amended by a competent Legislature or other competent authority.

Therefore the Nawanagar State Act as well as the CPC which were the laws of the old Saurashtra State and in force in-that State immediately

before the commencement of the Constitution became the laws of the new Saurashtra State subject however to the provisions of the Constitution.

In a decision of the Division Bench of this Court in - ''Nagardas Lalubhai v. Jagsi Bhikha'', AIR 1953 Sau 58 (B), the validity of the Khcdut

Sanrakshan Dhara of the Bhavnagar State providing for relief of agriculturists of that State was declared to be a discriminatory piece of legislation

and inconsistent with the provisions of Article 14 of the ''Constitution and void under Article 13(1) as to transactions entered into after the

Constitution.

The discrimination was held to arise out of the fact that most of the other Covenanting States did not have a similar law and there would be

different laws for different parts of Saurashtra in respect of persons similarly situated, But as to transactions before the Corwutrtiom the Act was

declared a valid and enforceable law as Article 13 (1) had no retrospective operation and was wholly prospective. The principle of this decision

applies to the Nawanagar State Act as the Act introduce inequality as regards the protection against execution of decree afforded to the

agricultural lands situated in different component parts of Saurashtra. Therefore as to transactions subsequent to 26-1-50 the Nawanagar State

Act must be treated as void and of no effect.

The next question is whether we can give Effect to that Act, in an application for execution filed after the Constitution and refuse to execute the

decree against the Appellant''s lend.

In Shree Meenakshi Mills Ltd., Madurai Vs. Sri A.V. Visvanatha Sastri and Another, their Lordships held that the right of equality before the law

and equal protection of laws within the |territory of India guaranteed to all persons by Article 14 extended not only to substantive laws but to

procedural laws also and all litigants similarly situated were entitled to avail themselves of the same procedural rights for reefs, and for defence

with like protection and. without discrimination.

Therefore though before the Constitution the Respondent had to submit to a procedural disability against execution of his decree imposed by the

Nawanagar State Act, that disability can no longer be allowed to continue after the Constitution and the Respondent is entitled to urge that he

cannot be compelled to submit to discriminatory treatment after the Constitution in the matter of execution of his decree.

In our opinion therefore the provisions of the Nawanagar State Act exempting the Appellant''s land from execution became void alter the

Constitution and the Respondent was entitled to execute his decree in accordance with the provisions of the CPC Code.

It is, however, necessary to notice two pieces of legislation enacted during the pendency of this appeal. These are the Saurashtra Attachment of

Agricultural Debtors'' Property (Temporary Exemption) Act, 1954, (Act No. XT of 1954) and the Saurashtra Agricultural Debtors'' Relief Act,

1954 (Act No. XXIII of 1954).

The Saurashtra Attachment of Agricultural Debtors'' Property (Temporary Exemption) Act, 1954 (Act No. XI of 1964) enacted that

notwithstanding anything contained in the CPC 1908 or any other law for the time being in force, no property of an agriculturist debtor shall be

liable to seizure, attachment or sale by process of any Court or other authority, in satisfaction of a, decree or order of any such Court or other

authority, at the instance of a creditor other than the Government and such bodies whose dues are recoverable as land revenue arrears, and all

proceedings in respect of such seizure, attachment or sale pending at the date of the commencement of this Act shall be stayed.

Then section placed an absolute bar against the Respondent, right to execute his decree and further proceedings in his Darkhast were suspended.

But the Act wan a temporary measure only and was to remain in force up to 31-7-1954. Therefore after the expiry of the Act the stay of execution

of the Respondent''s decree was automatically lifted and his decree again became executable under the provisions of the Code of Civil Procedure.

The second piece of legislation is the Saurashtra Debtors'' Relief Act, 10M.

Section 61 of the Act is the repealing section. Sub-section 2 of that section provides that if. immediately before the day on which the Act comes

into force, there Is in force In any of the territories of the State of Saurashtia any la of the Covenanting States or merged Talukas and Estates, as

respects matters covered by the Act, such law shall stand repealed.

The Respondent contends that the Nawanagm State Act even if it was a valid piece of legislation was repealed by the provisions of the above

Sub-section and was replaced by the Agricultural Debtor''s Relief Act.

It is argued that that Act applies to agricultural debtors whose debts inter alia do not exceed Rs. 25,000/- and even then it would come into

operation only after the Appellant ha3 made the prescribed application for adjustment and scaling down of his debts under the Act and until the

Appellant made such application he would not be .entitled to the protection of the Act and consequently the decree could be executed against his

agricultural land under the Code of Civil Procedure.

Therefore we have to consider the question whether the Nawanagar State Act is repealed by the Saurashtra Agricultural Debtors'' Relief Act

Section 61(2) of the Act prescribed two conditions which must be fulfilled before the Nawanagar State Act can be said to have been repealed by;

the Saurashtra Agricultural Debtors'' Relief Act.

The first condition is that the Nawanagan State Act must be in force immediately before the commencement of the Saurashtra Agricultural

Debtors'' Relief Act and the second condition is that the Nawanagar State Act must be as respects matters covered by the Saurashtra Agricultural

Debtors'' Relief Act.

It was argued by Mr. C.N. Shah that as the Nawanagar State Act is held void as to transactions subsequent to the Constitution, it cannot be said

to be in force after the Constitution, and on the date when the Saurashtra. Agricultural Debtors'' Relief Act came .into force.

We are unable to accept this argument for although the Act was no doubt declared to be void as to transactions after the Constitution, It was not

obliterated from the statute book and it was definitely in force as to transactions before that Constitution. It cannot, therefore, be said that) the

Nawanagar State Act was not in force mate deathly before the commencement of the Saurashtra Agricultural Debtors'' Relief Act.

The expression ''law in forest'' has been defined by Explanation 1 to Article 372 of the Constitution to indicate a law passed or made by at

Legislature or other competent authority in the territory of India before the commencement; oil the Constitution and. not previously repealed,

notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

It is, therefore, clear that a law, passed by, the Legislature of a State or Province before the Constitution, continues to be the law under the

Constitution until repealed even though that law . or any part of it may not be then in operation either at all or in any particular area.

The Nawanagar State Act was never expressly repealed at any time before the Sfcura Agricultural Debtors'' Relief Act and even that it was

declared void and therefore inoperurve after the Constitution it must nevertheless be regarded as the law then in force i.e. on the date when the

Saurashtra Agricultural Debtors'' Relief Act came into force. The first condition for the repeal of the Nawanagar State Act Mel down by Section

61(2) of the Saurashtra Agricultural Debtors'' Relief Act is thus satisfied.

The second condition is that the Navswnagar State Act should be as respects matter covered by the later Act. We have therefore to analyse t

he schemes of both the Acts to see whether the matters covered by both the Acts overlap each other. The preamble of the Nawanagar State Act

states that its object was give relief to agricultural debtors (the expression used in the Act is indebted cultivators).

Chapter 1 of the Act prescribes the conditions which a cultivator must fulfil before the Act can apply to him. Section 5 of Chap. 2 provides for

hearing of the suits by a Civil Court of the State or by a Judge specially appointed to hear such suits. The section further provides for taking

accounts from (he inception of the transaction and the mode of taking such accounts.

The indebtedness of the cultivators is to be determined after taking accounts In the prescribed manner and if anything Is found clue from the debtor

after taking accounts a decree has to be passed in respect of such amount. Chapter 3 provides for execution of the decree.

Section 8 enacts that the provisions of the Jamnagar CPC shall apply to the execution of the decrees but special exemption from, attachment has

inter alia been granted to agricultural lands of the debtors. We are not concerned with Chapter 4 but Chapter 5 which, contains only one section

provides that applications for execution of decrees remaining unsatisfied against cultivators at the time of the passing of the Act shall be deemed to

be suits and the proceedings; dally be conducted under the Act and a fresh decree should be passed after taking accounts and the provisions

regarding execution of the decrees under the Act shall apply to such decrees.

Turning now to the Saurashtra Agricultural Debtors'' Relief Act its object inter alias is to give relief to agriculturists against the burden of debt at

prescribes conditions which an agriculturist must fulfil before the Act can be applied to him. Chapter 2 of the Act provides for making an

application for adjustment of debts in the prescribed form to the Board constituted under the Act.

Section 20 prescribes the mode of taking accounts and for determining indebtedness of the debtor and for charging simple interest only. Section 29

provides for scaling clown of the debts payable by the debtor in accordance with his paying capacity winch is to be determined in accordance with

Section 28, and Section 30 provides for making an award while Section 36 provides for registration of the award and the execution by Section 17

if an application is made for the adjustments of debts or statement is submitted u/s 13 applications for execution of decrees against agricultural

debtors are to be transferred to the Board and are to be dealt with under the Act.

It will thus be seen that not only the objects of both the Acts are the same but provisional regarding the taking of accounts and determining the

indebtedness of debtors are also similar. The Nawanagar State Act provides for the passing of a decree while the Saurashtra Agricultural Debtors''

Relief Act provides the making of an award.

But that makes no difference in the nature of the adjudication. Both the Acts make special provisions for the execution of the decree or the award

as the case may be and also for pending applications, for execution. The maters covered by the Nawanagar State Act are thus covered by the

Saurashtra Agricultural Debtors'' Relief Act also.

It is true that the provisions of both the Acts are not Identical but the identity, of their provisions is not the test for determining whether the previous

Act is repealed by Section 61 (2) of the Earashtra Agricultural Debtors'' Relief Act.

The true test is whether the Saurnshlra A cultural Debtors'' Relief Act provider for subjects for which the Nawanagar State Act had made

provision; or in other words whether the provisions of Saurashtra Agricultural Debtors'' Relief Act and the provisions of the Nawanagar State Act

overlap and there is no doubt that such is the case.

Thus the second condition for the application of Section 61(2) of the Saurashtra Agricultural Debtors'' Relief Act is also satisfied. It follows I''m1,

(ho Nawanagar State Act stands repealed from the dale of commencement of the Saurushua Agricultural Debtors'' Relief Act. The Appellant can

no doubt claim protection under the latter Act.

But before he can do so, he has to apply for adjustment of his debts to the Board in, the manner prescribed and- to satisfy the Board that lie-

fulfils'' the conditions prescribed for the application of that Act to him. But so long as he does not so apply the Act can give no protection to him

and. the decree against him should be executed according to the ordinary provisions of the Code of Civil Procedure.

In the result, the order of attachment passed by the learned Civil Judge must be upheld and is hereby confirmed and the appeal is ordered to be

dismissed with costs.

Shah, J.

I agree.