Rhidoy Krishna Ghose vs Kailas Chandra Bose

Sir Barnes Peacock Kt., C.J.—I see no reason to change the opinion which I expressed in the case, which has been referred to, of Heeralall Seal v. Poran Matteah 6 W.R. Act X, Rul. 84. We ought to put a reasonable interpretation upon the words of section 92. The two cases of Gooroo Doss Auckholee v. Madhoo Koondoo Case No. 778 of 1865; 11th Sept. 1866 (B.L.R. Sup. 492) and Kangalee Churn Ghosal Vs. Bonomalee Mullick and Others show that it would not always be safe to put a literal interpretation on the words of an Act of the Legislature. If, as has been shown by the vakeel who has argued this case on the part of Kailas Chandra, a literal construction had been put upon section 20, Act XIV of 1859, no execution whatever could be issued upon any judgment of a Mofussil Court. There must always be a first time for everything; but if a literal construction were put upon that section, the first application for execution must be dismissed for want of a previous application. According to the strict words of the section, no execution is to be issued to enforce a judgment, unless some proceeding shall have been taken to enforce such judgment, decree, or order, or to keep the same in force within three years next preceding such application." It has been pointed out that very great inconvenience would have ensued from patting a mere literal construction upon section 21 of Act XIV 1 of 1859, without regarding the spirit and intention of the Act.

In this case the decree was obtained on the 7th of September 1864, and execution was not issued until the 22nd of October 1867. From that time up to the 11th of January 1869, the proceedings were stayed. If the contention insisted on by the opposite party is correct, if execution had been applied for on the 8th of September 1864, and from some cause or another for which the applicant was not responsible, the proceedings had been tied up to the 24th October 1867, the plaintiff would not be'' entitled to execute his decree.

I can suppose many cases in which, if the construction contended for is correct, the applicant might, without any fault on his part, lose the fruits of his decree, even if he should apply for execution on the very day after obtaining the decree. For instance, if he were to apply for execution, and the defendant should die the next day. It would be necessary for him in such case, u/s 91, to bring in the heir or representative of the judgment-debtor; and, according to that section, execution could not be issued against the heir or other representative without notice to him to appear and be heard.

So, if a person who obtains a decree die, and his representative comes in and asks for execution, the Judge may require him to obtain a certificate to collect debts before be allows him to sue out execution. In such a case the applicant would have to go to a Court of Justice to obtain the necessary certificate. He might obtain an order giving him a certificate, and an appeal against the order might be preferred. Three years might expire pending the proceedings; and if the Judge could not make an order for execution upon the ground that three years from the date of the judgment had expired, the decree-holder might lose the benefit of the decree, though his application were made the very day after the decree was obtained.

I am not looking at the particular facts of this case, but to what, interpretation we ought put on the section, not merely with reference to this case, but with reference to others which may occur. Did the Legislature intend by the word issue to declare that no writ of execution should issue out of Court on decrees (such as those u/s 92), unless actually issued within three years, whatever the circumstances which might prevent the actual issue of the execution?

The words of a Legislature cannot always be interpreted literally. For instance, in a case in which it was enacted that, if a jailor should allow a prisoner to escape, he should be guilty of a misdemeanour. The jail took fire, and rather than allow the prisoners to be burnt to death, the jailor allowed them all to escape. It was held that he was not guilty of a misdemeanour for so doing. If the word issue" is to be taken in its literal sense, many cases may occur in which great injustice may be done.

In Domat''s Civil Law, Title I, section 2, it is said," that two classes of cases occur in which it is necessary to interpret the laws. One is, when we find in a law Borne obscurity, ambiguity, or other defect of expression; for in this case it is necessary to interpret the law, in order to discover its true meaning. And this bind of interpretation is limited to the expression that it may be known what the law says. The other is when it happens that the sense of a law, how clear so ever it may appear in the words, would lead us to false consequences, and to decisions that would be unjust, if the laws were indifferently applied to everything that is contained within the expression. For, in this case, the palpable injustice that would follow from the apparent sense obliges us to discover, by some kind of interpretation, not what the law says, but what it means; and to judge by its meaning how far it ought to be extended, and what are the bounds that ought to be set to its sense."

The author then gives an example:--"There is no rule in law more evident and certain than this, that a depositary ought to restore the thing deposited to the person who interested him with it, whenever be shall please to call for it; but if the owner of money deposited has lost the use of his reason when he calls for his money, every body must own that it would be a great injustice in the depositary to give it to him back. For who does not see that there is another rule which forbids the giving: to a mad man a thing that may perish in his hands, or of which be may make a bad use, and that to restore it to him, would be to do him prejudice?"

The section to which I have alluded is not the only one in this Act or in other Acts in which a literal construction would lead to great injustice. If a law should enact that a jailor who neglects to obey a writ ordering him to bring a prisoner into Court shall be punished, no one-would bold that, because he is ordered to bring the body into Court, he must do so if the prisoner is dead or so ill that his removal would cause his death. The Act which requires the jailor to bring the prisoner into Court, must be interpreted in a reasonable manner.

In my opinion the word "issued is not to have a strict literal interpretation put upon it. I should rather interpret it to mean sued out or applied for with success, that is, that no application for a process of execution shall be successful, unless the application for it is made, or it is sued out within the fixed time; that I think is the meaning of the Legislature which may be fairly inferred from the remaining portion of the section. It says:--"No process of execution of any description whatsoever shall be issued, on a judgment under this Act, after the lapse of three years from the date of such judgment, unless the judgment be for a sum exceeding rupees five hundred, in which case the period within which execution may be had shall be regulated by the general rules in force in "respect to the period allowed for the execution of decrees of the Civil '''' Courts."

We thus have the words issued" and '''' had used in the same sentence. The word bad" does not mean actually issued, but granted. I think both these words refer to the application of the suitor, and not to the time at which, after delays which may occur in the course of the case, the execution is to be actually given out of Court.

Giving the words of the Act a reasonable interpretation, I do not think that the word issued" means that the execution must be actually out of Court, without reference to any circumstances whatever before the expiry of three years from the date of the judgment.

The rule will be dismissed with costs.

Bayley, J.

In this case the reference by the Division Bench, for the consideration of the Full Court, involves the question whether, under the terms of section 92, Act X of 1859, the Collector has acted without jurisdiction in issuing a process of attachment at a period admittedly beyond three years. It has been stated in the order of reference that, with regard to this particular case, there is do ground of hardship, as the decree-holder himself is to blame for the great want of diligence that he showed in executing his decree.

Now, as regards this case, it is quite clear that the judgment was passed on the 7th September, 1364. It is equally clear that the Revenue Court issued the process of attachment on the 22nd October 1867, that is to say, beyond three years after the date of the judgment.

Against the view taken by the referring Judges, there is a decision by the Chief Justice and Mr. Justice Markby in Heeralall Seal v. Poran Matteah 6 W.R. Act X, Rul. 84 holding that the words of section 92 must bear a reasonable construction; and in support of the view taken by those Judges, there is a decision by Mr. Justice Loch and Mr. Justice Glover in Shureefoonissa v. Raj Kishen 4 W.R. Mis. 24, and another by Mr. Justice Kemp and Mr. Justice Seton-Karr in Prosunno Coomar Surma Chowdry v. Rammohun Sircar 3 W.R. Act X, Rul. 131.

If, according to any legal principle of construction, this case could have been brought within the jurisdiction of the Collector, we would have done so, if it had been shown that the decree-holder''s bands were entirely tied up by the superior force of a decree of the Civil Court. It is, doubtless, the fact that the Sudder Ameen of the 24-Pergunnas had attached the decree for a large portion of the three years; but on the other hand, it is to be remarked that, when the decree-holder did take out execution within three days of the expiry of the three years, he did it contrary to law, that is to say, he applied for attachment of the immoveable property without first having applied, as required by the law, for the attachment of the moveable property. This be admitted in a petition dated the 25th October 1867, when the three years had admittedly elapsed; so that in reality, as regards the question whether the decree-holder applied in time, this circumstance of there being no legal application before the Court within the three years is one of some importance. I will, however, confine myself to the rules of construction.

Now, in the general rules of construction, as laid down in Dwarris on Statutes, 2nd edition, 1848, Fart II, page 578, it is stated:--"It is a rule "of construction, founded in reason, and supported by many authorities, "that words in a will or statute are to be construed according to their "strict and proper acceptation, unless there be something to show that such a construction is not intended. Words of known legal import are "to be considered as having been used in their technical sense, or according to their strict acceptation, unless there appear a manifest intention of using them in their popular sense." Again in a judgment by Lord Denman, in Lamond v. Eiffe 3 Q. R. 910, cited on the following page, it is said:--"We cannot introduce any such qualifications; and I cannot help "thinking that the introduction of qualifying words in the interpretation of statutes is frequently a great reproach to the law. None of the distinctions suggested are contained in the plain words of the Act, and we cannot qualify them by any arbitrary introductions." So in Everett v. Wells 2 Scotts N. R. 531, Tindal, C.J., said:--"It is the duty of all Courts to confine themselves to the words of the Legislature; nothing adding thereto, nothing diminishing. We must not import into an Act a condition or qualification which we do not find there. "

Now, under these rules of construction I cannot see any ambiguity whatever in the terms of section 92: No process of any description whatsoever shall be issued on a judgment under this Act, after the lapse of three years from the date of such judgment, &c." No words could be clearer, and no intentions could be expressed in plainer terms than by the words used in section 92. I, therefore, do not think that in this case the enactment in the section being expressed in such very clear words, we should go beyond those words themselves, and admit suggestions and qualifications for the purpose of construing them, which would be against the rules of construction above cited. It is true that, in this case, had the party applied three days before the expiry of the three years, in a proper and legal manner, that is to say, for the attachment of the moveable properties, before proceeding against the immoveable properties, he would be barred of a legal remedy by reason of the superior force of the Court of the Sudder Ameen over which he had no control. It is also true that the words of section 92 would not provide for a case where the decree is for a tenure, and not for a sum; still when the Legislature uses such very clear words to express its intention, I think it is for us only to read the law as it stands in those words. If there are defects and omissions in the law, it is for the Legislature, and not for us, to correct them by amending the law, and so provide against such difficulties as may arise. Thus difficulties would be met, and at the same time the rules of construction maintained.

In regard to sections 20 and 21, Act XIV of 1859, relied upon by the opposite party, I think there are in those sections terms very dissimilar to the different and definite terms used in section 92.

After giving my best consideration to the matter, and with every wish that justice may be done to the parties, I cannot but think that the view taken by Mr. Justice Hobhouse and myself in the referring order is the correct view as the law stands, and I still think, therefore, that the Collector had no jurisdiction in the case.

Kemp, J.

This was an application to execute a decree under Act X of 1859 for costs. The amount due under the decree was under rupees 500, and, therefore, the general rules in force, with respect to the period allowed for the execution of decrees of the Civil Court, do not apply to this case under the latter portion of section 92, Act X of 1859. In this case there was no proper application, on the part of the decree-holder, within three years from the date of the decree. The decision of the Chief Justice and Mr. Justice Markby in Heeralall Seal v. Poran Matteah 6 W.R. Act X, Rul. 84 treats of a case in which a proper application for execution had been made. In the present case, the decree being for the payment of money, not being money due as arrears of rent of a saleable under-tenure, u/s 109, satisfaction of the judgment could not be obtained against the immoveable property of the judgment-debtor, without first taking out execution against his person and moveable property. Therefore, though we are not called upon to decide this case, with reference to the particular circumstances of it, I cannot but say that this is a case in which the decree-holder is not entitled to any consideration from the Court.

On the bare point of law, I entirely concur in the view taken by the learned Judges who have referred this case to the Full Bench. That view is in accordance with the view which had already been taken by me, although my decision was not brought to the notice of those learned Judges. My decision will be found in the case of Prosunno Coomar Surma Chowdry v. Rammohun Sircar 3 W.R. Act X, Rul. 131. It appears to me that, when a statute is expressed in clear and unambiguous language, the Court is bound to interpret the law in the words of the Legislature. Section 92 of Act X of 1859 enacts that no process of execution of any description whatsoever shall be issued "on a judgment under this Act, after the lapse of three years from the date of such judgment." So far with reference to judgments for sums under rupees 500. In this case no proper application for process of execution was made within three years from the date of the judgment, and the Collector''s order issuing process being dated more than three years from the date of the judgment, I hold it to be an illegal order, and one beyond his jurisdiction to pass.

Macpherson, J.

I concur in the answer which it is proposed to give the question referred for our decision; but it is impossible for me to say that I have not entertained considerable doubts upon the point. Section ''92, Act X of 1859, expressly enacts that no process of execution, of any "description whatsoever, shall be issued on a judgment under this Act, after the lapse of three years from the date of such judgment;" and according to the literal interpretation of these words, upon the expiry of the three years, no further process of any description can issue. Taking this section according to the literal meaning of the words used, if a person who has obtained a decree proceed at once to take the necessary steps towards executing it, and proceed with all diligence, but, nevertheless, from no fault of his own, is unable to obtain complete execution before the lapse of three years from the date of his judgment, all the proceedings which he has taken become ineffectual, and his right to execute his decree is at an end the moment the three years expire. To read the language of the section thus, gives it a very harsh and unreasonable operation : and I think it will bear the more reasonable construction put upon it by the Chief Justice and Mr. Justice Markby in the case of Heeralall Seal v. Poran Matteah 6 W.R. Act X, Rul. 84; and that the words should be construed as meaning that execution shall not issue, unless a proper application for execution has been made within three years from the date of the judgment. Glover, J.

Assuming that this reference is to be answered only so far as the principle of section 92 of Act X of 1859 is concerned, I have no hesitation in expressing my concurrence in the view taken by the Chief Justice and Mr. Justice Markby, in the case of Heeralall Seal v. Poran, Matteah 6 W.R. Act X, Rul. 84. I think with those learned Judges that the meaning of section 92 of the Act is that no execution shall issue upon a decree, unless a proper application is made within three years from the date of the judgment. In this case, there was an application made on the 4th of September 1867, that is, within three years; and as the question as to whether that was a proper application or not is not now before us; I assume, for the purposes of this reference, that it was a proper application; and if so, I have no doubt that the Collector had jurisdiction to issue process of execution when be did, although at the time he issued it more than three years had elapsed since the original judgment. All that the decree-holder was by law bound to do was to apply for execution within three years; indeed, that was all that he could do; everything else was in the hands of the Court; and if the Court delayed the subsequent attachment, for reasons of its own, the decree-holder ought not to be made responsible.

1 Act XIV of 1859, section 31.--"Nothing in the preceding section shall apply to any judgment-decree or order in force at the time of the passing of this Act, but process of execution may be issued either within the time now limited by law for issuing process of execution thereon, or within three years next after the passing of this Act, whichever shall first expire."