Raghunath Singh vs Gian Chand

Shamsher Bahadur, J.—This is a judgment-debtor''s appeal from the appellate order of the learned Senior Subordinate Judge dismissing the objections preferred by him, though allowed in the first instance by the first Court.

The Respondent, Gian Chand, obtained a decree for Rs. 625/- against the Appellant, Raghunath Singh on 26th of July, 1948. Various attempts were made to execute the decree but the last application was consigned to the record room on 27th of August, 1951. On the same day the decree-holder filed a new application for execution and a house belonging to the judgment-debtor was attached. In the first place, it was stated by the judgment-debtor that the house belonged to his father and could not be attached in execution proceedings. It was further objected that the application for execution was barred by time. The first objection, though it prevailed with the executing Court, need not detain us any longer as this is no longer a live issue between the parties. On. the question of limitation, however, the two Courts below have taken different views. The trial Court has sustained the objection and dismissed the execution application holding it to be barred by time while the learned Senior Subordinate Judge, in appeal, has taken a contrary view and in the result the objections of the judgment-debtor have been dismissed.

I may now set out briefly the basis on which the plea of limitation has been raised on behalf of the judgment-debtor. Normally, u/s 48 of the Code of Civil Procedure, a decree does not become barred by time for execution before the expiration of twelve years from the date of the decree which is sought to be executed. An exception to this rule has been engrafted under the Punjab Debtors'' Protection Act (Act No. 2 of 1936), Sub-section (1) of Section 11 of which lays down:

Notwithstanding anything to the contrary contained in any other enactment where an application has been made to execute a decree passed after the commencement of this Act against a debtor as defined in Sub-section (2) of Section 7 of the Punjab Relief of Indebtedness Act, 1934, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years from--

(a) the date of the decree sought to be executed.

The Appellant claims to be a judgment-debtor under Sub-section (2) of Section 7 of the Punjab Relief of Indebtedness Act which is to this effect:

''Debtor'' means a person who owes a debt and--

(i) who both earns his livelihood mainly by agriculture, and is either a landowner, or tenant of agricultural land, or a servant of a landowner, or of a tenant of agricultural land, or....

Provided that a member of a tribe, notified as agricultural under the Punjab Alienation of Land Act, 1900 shall be presumed to be a debtor as defined in this section until it is proved that his income from other sources is greater than his income from agriculture.

As would be observed, the decree having been passed on 26th of July, 1948, the fresh application which was filed on 27th of August, 1958 would be barred by time if it is established that the Appellant is a judgment-debtor under the Debtors'' Protection Act read with the Punjab Relief of Indebtedness Act. It is common ground that if the proviso to Sub-section (2) of Section 7 of the Punjab Relief of Indebtedness Act is applicable, the judgment-debtor can claim exemption as he was notified as an agriculturist under the Punjab Alienation of Land Act. This Act, however, was repealed as a result of adaptation under Clause (2) of Article 372 of the Constitution by the Adaptation of Laws (Third Amendment) Order, 1951.

In my opinion, the proviso can no longer be invoked in the aid of the judgment-debtor as the Punjab Alienation of Land Act, 1900 was repealed in 1951. No vested rights can be said to have accrued to the judgment-debtor and any remedy which was available under it could not be availed of after 1951. At best, it could be said that the proviso to Sub-section (2) of Section 7 of the Punjab Relief of Indebtedness Act armed the judgment-debtor with an inchoate right to assert that he was a member of an agricultural tribe and was thus a debtor within the meaning of the Punjab Relief of Indebtedness Act. As stated in Sutherland Statutory Construction, Volume I, (3rd edition) at page 528, under heading No. 2045, "rights of action which are dependent upon a statute, and which are inchoate and not reduced to possession or perfected by final, judgment, are lost by the repeal of the statute from which they stem.

As stated in Corpus Juris Secundum, Volume 82, page 1008, "the repeal of a statute has the effect, except as to transactions past and closed, of blotting it out as completely as if it had never existed." In a Division Bench of the Calcutta High Court (Guha and Baretley JJ.) in Haripada Pal Ghosh v. Tofajaddi Ijaradar and others, ILR 60 Cal. 1438 it was held that "the effect of repeal of a statute in the absence of saving clause is that it has to be considered as if the statute, so repealed, had never existed." The judgment-debtor could plead the proviso in defence when and if execution proceedings were brought against him. It was not a perfected or completed right which vested in the judgment-debtor in 1951 when the Punjab Alienation of Land Act was repealed. In this view of the matter, I would hold that though the Appellant was a member of an agricultural tribe under the Punjab Alienation of Land Act, it cannot afford him any relief in the execution application which was filed in 1958.

It has next to be seen whether the Appellant is a debtor under Clause (i) of Sub-section (2) of Section 7 of the Punjab Relief of Indebtednes Act. Two facts have been found by the lower appellate Court and no challenge has been offered to these findings by Mr. Bahri, the learned Counsel for the Appellant. It has been found, in the first place, that the Appellant was a film distributor in the year 1956 and secondly, that his wife had acquired a factory. The evidence does not show that the Appellant had been earning his livelihood mainly by agriculture. Indeed, he acquired an area of 50 to 60 ghumaons of land only after 1951. Mr. Bahri has contended that the business of a film distributor and a factory owner were side shows and ancillary to the vocation of the Appellant who relied on agriculture as the means of livelihood. No such presumption can be drawn in favour of the Appellant who on his own showing was dabbling in business activities. Mr. Bahri asserts that the judgment-debtor''s business as a film distributor was carried at a loss but this does not appear to have been established. In my opinion, the lower appellate Court arrived at the correct conclusion in holding that the Appellant had failed to make out that agriculture has been his main source of livelihood. In this view of the matter, this appeal fails and is distmissed. In the circumstances, however, I would make no order as to costs.