Vishwanath Narayan Singh vs Harihar Gir

Mohamad Noor, J.—This appeal arises out of a proceeding for execution of a mortgage compromise decree. In Miscellaneous Appeal No. 199 of 1938 (not admitted as yet) which arises out of the same execution proceeding and is by the same appellant, this Court on 6th July 1938 ordered that if the judgment-debtor-appellant deposited to the credit of the decree-holder a sum of Rs. 100 by 11th July next, the sale of the ''mortgaged properties would be adjourned for two months and if within that period he deposited Rs. 6000 the execution would ''be stayed. The judgment-debtor-appellant deposited Rs. 100 but did not deposit Rs. 6000. In the meantime a fresh sale proclamation was issued fixing 12th September 1938 for sale. On 15th July 1938 came into force certain Sections (including Sections 16 and 17), Bihar Money-lenders Act, of the Provincial Legislature (Act 3 of 1938). The judgment-debtor raised fresh objections to "the execution and asked the Court to take steps under the new Act. One of them which alone has been pressed before us was that the Court should fix the value of the properties to be sold as enjoined in Section 16 of the Act. The learned Subordinate Judge held that it could not be done as the Section was applicable only when application for execution of a decree was made after the Act came into force. The objections were rejected and the judgment-debtor has preferred this appeal, and the only point urged is the non-compliance of Section 16, Money-lenders Act.

The learned Advocate-General for the appellant contended that the views of the learned Subordinate Judge as to the applicability of Section 16, Bihar Money-lenders Act are erroneous. Its application cannot, in its terms, be restricted to the execution proceedings started after the Act came into force Mr. Khurshaid Husnain for the respondent has supported the order of the learned Subordinate Judge on three grounds: the first is that the Section applies only to proceedings which were started or will be started after the Act came into force, namely 15th July 1938, and not to all the pending execution proceedings; the second is that Section 16 overrides only the provision contained in any other Jaw or in anything having the force of law, but unlike Section 15 it does not override the contracts between the parties or a decree or order already passed and the decree-holder is entitled to proceed to sell the entire property without its being valued by the Court beforehand; the third ground is that Section 16 of the Act along with Section 17 which follows it, is void u/s 107, Government of India Act of 1935, as it is repugnant to a provision of the Code of Civil Procedure, an "existing Indian law," namely Order 21, Rule 66, as it stood on 1st April 1937.

As regards the first contention that the Section is applicable only to execution proceedings started after the Act came into force, there is no substance in it, though this view was adopted by the learned Subordinate Judge. In my opinion the words, ''when an application is made for the execution of a decree passed in respect of a loan, &c, &a.'' mean nothing more than when a decree specified in the Section is under execution. It was contended that steps provided in this Section are to be taken immediately after an application is made for the execution of a decree and as the application for execution in this case was made when the Act was not in force, the steps provided in the Section cannot be taken now. This contention, if accepted, will lead us to a number of complications and anomalies. Under the amended Order 21, Rule 22, notice to judgment-debtor is necessary in all cases except when there is an oral application for execution by arrest. It is obvious that unless notice is issued and served upon the judgment-debtor, no enquiry about the valuation of the properties can be made. Section 16, Money-lenders Act, prescribes procedure for the sale of the property of the judgment-debtor and the procedure to be followed in pending cases, when a new procedure is prescribed by law, will be according to this new rule, so far as it is applicable and not according to the old rule. On a reading of the Section, it is quite clear to me that in those execution cases which on 15th July 1938 were at a stage when the properties were not sold, the sale must be according to the procedure laid down in that Section, provided of course that the Section is not void. Therefore the view taken by the learned Subordinate Judge was, in my opinion, wrong.

Apart from this the question has been made clear by a declaratory Act of the Provincial Legislature (Act 5 of 1938), which came into force when this appeal was being heard by us (19th September 1938). This Act declares [Section 3(2)] that the provisions of Sections 15 to 18 (both inclusive) of the Money-lenders Act shall apply and shall be deemed to have always applied to proceedings in execution arising out of suits referred to in Sub-section (1) of Section 3 whether such proceedings were instituted before or after the said Sections came into force.

The next contention of the learned advocate for the respondent has been that Section 16 of the Act overrides anything contained in any law or anything having the force of law, but it does not override contracts or previously passed decrees or orders of Court. This contention also is, in my opinion, untenable. First of all, the learned advocate has not been able to show us any contract by which the judgment-debtor agreed that his property should be sold without fixing any value for it. What the judgment-debtor agreed at the time of the passing of the compromise decree was that in case he made default in the payment of the installments fixed therein, the mortgaged properties or sufficient portion thereof would be sold. How the sale was to be effected is a matter of procedure and must be governed by the rules of procedure in force at the time of sale.

Mr. Khurshaid Husnain contended that as the compromise decree did not specify the part sufficient for the satisfaction of the decree the executing Court could not by virtue of Section 16 of the Act, which does not override the agreement or the decree, decide what part is to be sold. There is no force in this contention. The decree itself provides that either the entire mortgaged property or a part of it sufficient for the satisfaction of the decree would be sold. This provision does not preclude the Court from fixing the value of the property and of its part sufficient for the satisfaction of the decree. In my opinion therefore Section 16 of the Act does not override any contract between the parties or the decree. The learned advocate next contended that this; Court on 6th July 1938, in Miscellaneous Appeal No. 199 of 1938 ordered that the properties of the judgment-debtor would be sold if Rs. 6000 be not deposited within two months of that date. That order meant that the property would be sold in the manner and according to the procedure under which it was going to be sold before that order. No new procedure could now be applied for sale. This argument also in my opinion, has no force. If after the order of this Court the Legislature has intervened and provided that the property is to be sold only under the procedure prescribed by it, the order of the Court will be of no avail in the face of a positive legislative enactment.

The most serious contention of the learned'' advocate for the respondent has been that Section 16, Money-lenders Act, on account of its being repugnant to a provision of the CPC as it stood on 1st April 1937 is void. This argument requires a careful consideration. Civil procedure is mentioned in the Concurrent List of the Legislative Subjects in Schedule 7, Government of India Act, 1935. In other words, the Provincial Legislature as well as the Central Legislature can deal with matters relating to it. But the Government of India Act has provided safeguards to avoid, conflict between the two Legislatures in connexion with those matters for which) the legislative authority is concurrent, that is to say for which both the Provincial and the Central Legislatures can pass enactments. Section 107, Government of India. Act, runs thus:

If any provision o� Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this Section, the Federal law whether passed before or after the Provincial law or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

In other words this Sub-section (1) of Section 107 says (leaving aside from consideration the Federal Legislation to be passed) that when, a Provincial Legislature enacts any law in respect of any matter enumerated in the Concurrent Legislative List which is repugnant to the existing Indian law, it will be void to the extent of that repugnancy. There is an exception to this in Sub-section (2) of the Section which provides that in case a Bill has been reserved for the assent of the Governor-General or for signification of His Majesty''s pleasure and such assent be given, the Provincial legislation, though repugnant to the existing Indian law, will not be void. There is a further proviso that if such assent is given and the Provincial Legislature overrides the existing Indian law the Federal Legislature will not be able to amend it again without the previous sanction of the Governor-General. The object of Section 107(1) and (2) is to make the Governor General or His Majesty the coordinating authority in respect of concurrent legislation to avoid conflict between a Provincial Act and an existing Indian law or Federal legislation.

Mr. Khurshaid Husnain contended that Section 16, Bihar Money-lenders Act, is repugnant to the CPC which is the existing Indian law so far as the matter before us is concerned.

Existing Indian law means any law, ordinance, order, by law, rule or regulation passed or made before the commencement of Part 3 of this Act by any Legislature, authority or person in any territories for the time being comprised in, British India, being a Legislature, authority or person having power to make such a law, ordinance, order by law, rule or regulation: Section 311, Government of India Act.

Therefore, the Code of Civil Procedure, as it stood on 1st April 1937, namely the day on which Part. 3, Government of India Act, came into force, is an existing Indian law. It is now necessary to examine the provisions of the Code to which Section 16, Money-lenders Act, is urged to be repugnant, namely Order 21, Rule 66. This Rule as originally enacted by the old Imperial Legislative Council provides that when any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made. Then it specified the contents of the sale proclamation and provided that it should be drawn up after notice to the decree-holder and the judgment-debtor and should state the time and place of sale. Among the things which the sale proclamation is to contain is everything which the Court considers material for a purchaser to know in order to judge of the nature and value of the property It was held that it was incumbent upon the Court to ascertain the value of the property advertised for sale and put the value in the sale proclamation. Judicial pronouncements went so far as to say that mentioning a grossly inadequate value in the sale proclamation was a material irregularity. This rule was amended by this Court under its rule making power u/s 122, Civil P.C. Notice to decree holder and judgment-debtor was dispensed with as a notice under Rule 22 was provided in every case except in case of oral application for execution by arrest and a provision to the following effect was added:

Provided that no estimate of the value of the property, other than those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does not vouch for the accuracy of either shall be inserted in the sale proclamation.

The amendment came into force on 1st March 1936. The effect of this Proviso is that the Courts are not to estimate the value of the property to be sold and are prohibited from inserting in the sale proclamation any value other than those, if any, mentioned by the decree-holder and the judgment-debtor and if the value given by parties is inserted, the Courts must state that they do not vouch for their accuracy. This was the law, as I have said, on 1st April 1937 when the Government of India Act came into force, and as it was a rule framed by a competent authority empowered by the Code itself to frame rules, it was the existing Indian law as defined in Section 311, Government of India Act. It was argued on behalf of the appellant that the Proviso which came into force on 1st March 1936 is not covered by the Concurrent Legislative List and I shall deal with this point later. Now, it is admitted that the assent to the Bihar Money. lenders Act was given by the Governor and it was not reserved for the assent of the Governor-General or for the signification of the pleasure of His Majesty. Therefore, its provisions if repugnant to the existing Indian law are void.

The learned Advocate-General for the appellant has not argued that the Proviso to Order 21, Rule 66, as it stood on 1st April was not the existing law of India. What he argued was that Section 16, Bihar Moneylenders Act, was not repugnant to it. He contended that Section 16 of the Act makes no mention of inserting any value of the property in the sale proclamation and argued that while Proviso to Order 21, Rule 66,''prohL bits insertion in the sale proclamation the estimate of value other than those men, coned by the decree-holder and judgment-debtor and enjoins the Court to mention that it does not vouch for the accuracy of the value mentioned by either, Section 16, Bihar Money-lenders Act, simply asks the Court to fix the value of the property which the decree-holder wants to be sold and also the value of that portion of it the proceeds of which the Court considers sufficient to satisfy the decree. This argument would have been of some force if Section 16 would have stood by itself and would have been self contained which it is not. It is followed by Section 17 without which it would have been an absolutely useless piece of legislation. By itself, it does not describe the purpose for which the Court is to use its time in fixing the value not only of the property which the decree-holder wants to sell but also of a portion of it the proceeds of which the Court considers sufficient for satisfying the decree. Then we find that so much importance has been given to the fixing of this value that the order has been made appealable. Then while the main Section says that the Court shall fix the value of that portion of the property, the proceeds of which, in its opinion, is sufficient for the satisfaction of the decree; the Proviso says:

That the Court may order the whole property of the judgment-debtor to be sold if it is satisfied that by reason of the nature of such property or any other special circumstances such property cannot reasonably or conveniently be sold in part.

The purpose of ascertaining the value of the property has been specified in Section 17. There among others it is provided that except under circumstances mentioned therein the property advertised shall not be sold for a price lower than that specified in the sale proclamation. This clearly enjoins upon the Court to mention the value as ascertained by it u/s 16 in the sale proclamation. Otherwise how could the Court be told not to sell a property (except under certain circumstances) for a price lower than the price mentioned in the sale proclamation What is the price mentioned in the sale proclamation to which reference has been made in Section 17? Surely not the value given by the decree-holder or judgment-debtor. The Court is not to vouch for the accuracy of either. Therefore by necessary implication the Court is required to mention the value estimated by it in the sale proclamation. Thus while Order 21, Rule 66, Civil P.C. as it stands after the amendment by this Court, provides that the Court shall not enter any estimate of the value of the property in the sale proclamation other than the value, if any, given by the decree-holder and the judgment-debtor and requires it not to vouch for the correctness of either, Section 16 read with Section 17 of the Act enjoins the Court to estimate the value and mention it in the sale proclamation, such value being of such a binding character that the property cannot be sold for a lesser price except under certain specified circumstances. In other words, the Court is to vouch for the absolute correctness of the value as fixed by it. I am clearly of opinion that Section 16 which must be read with Section 17 is repugnant to Order 21, Rule 66, Civil P.C.

I do not wish to discuss in detail the meaning of "repugnancy". It has been discussed in a number of decided cases. For the purposes of this case, I will construe it very strictly and hold that in order that two provisions of law may be called repugnant to one another, they should be so contradictory that it will be impossible to carry out both of them; in other words if one says "do" and the others say "do not". Here we have got two orders given to the Courts: one is by the Proviso to Order 21, Rule 66, Civil P.C., which asks them not to mention any estimate of value in the sale proclamation except those, if any, given by the parties and not to vouch for the correctness of any of them; the other is Sections 16 and 17 of the Act which order them to fix the value very carefully, make their orders appealable to the higher tribunals and by necessary implication, compel them ,to put the value fixed by them in the sale proclamation and to sell the property only if the price fetched is according to the value fixed by them, unless of course some other considerations arise. In my opinion it is impossible for the Courts to carry out both the orders. They will have to disregard the one or the other. The framers of the Money-lenders Act seem to have been cognizant of the fact that the provision for estimating the value of the property was inconsistent with the CPC as it stands and therefore they have expressly said that.

notwithstanding anything to the contrary contained in any other law or in anything having the force of law.

The reference is obviously to the Civil Procedure Code. I do not know of any other law dealing with the procedure for sale of property in execution of decree and estimating its value by the Courts. The Section therefore obviously repeals the provisions of Order 21, Rule 66 of the Code as it stands now. I do not wish to enter into the discussion of the propositions on which a somewhat elaborate argument has been addressed to us by Mr. Khurshaid Husnain that other provisions of Section 17 are also repugnant to the CPC and to other existing Indian laws. They are not before us and have not been replied to by the learned Advocate-General who appeared for the appellant.

Mr. Harinandan Singh who also appeared for the appellant and who replied in the absence of the learned Advocate-General contended that Order 21. Rule 66, as it stands, came into force in March 1936 and therefore is not a Concurrent Legislative subject mentioned in List III of Schedule 7, Government of India Act, because it is not a procedure which was in force on the date when the Government of India Act of 1935 was passed. This argument, in my opinion, is fallacious and is based upon a misreading of Item (4) of List III in Schedule 7. This item makes Civil Procedure a Concurrent Legislative subject. Civil Procedure includes law of limitation and all matters included in the CPC as it stood on the day the Government of India Act was passed. In other words, all matters whether relating to procedure or not included in the CPC on the date of the passing of the Government of India Act are Concurrent Legislative Subjects. The words "and all matters, &c. &c." enlarge the subjects of Concurrent Legislation by including every matter included in the CPC on the date of passing of the Government of India Act. The matter in this connexion is the procedure to be adopted for the sale of the property of the judgment-debtor, i.e. issue of sale proclamation, etc. This is a matter of civil procedure and was included in the CPC as it stood on the date when the Government of India Act was passed, and in that connexion the existing Indian law is the law as it stood on 1st April 1937.

To sum up my reasons, the matter relating to the execution of decree and sale proclamation was a matter included in the CPC on the date the Government of India Act was passed. The existing Indian law in this connexion is Order 21, Rule 66, Civil P.C. as amended by the High Court and as it stood on 1st April 1937. The law subsequently enacted by the Provincial Legislature which is contained in Sections 16 and 17, Bihar Money-lenders Act, is repugnant to it, and not having been assented to either by the Governor-General or His Majesty is void. The order of the lower Court refusing to fix the value of the properties to be sold must be upheld though on different grounds.

The result is that the appeal is dismissed with costs.

Chatterji, J.

I agree.

By the Court.

We certify that this case involves a substantial question of law as to the interpretation of the Government of India Act and is therefore a fit one for appeal to the Federal Court.