GEORGE Vs. ABRAHAM

JUDGEMENT

(1.) THERE is no doubt that the Court below should have passed a speaking order. The order that is now challenged does not show that the Court has applied its mind on the points involved. In such cases the proper thing would have been to remand the petition to the Court below with a direction to write a proper order. But since the revision petition has to fail on the merits, no purpose will be served if I follow the above procedure. That may only protract the proceedings. I shall, therefore, dispose of the petition on the merits.

(2.) THE argument put forward on behalf of the petitioner is that the case falls under S. 113 of the Code of Civil Procedure and the Court should have made a reference as contemplated in that provision. S. 113 CPC. reads: 'subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court. ' It is clear, therefore, that a reference ordinarily would lie only if the conditions and limitations prescribed under the Code are satisfied. Order XLVI R. 1 deals with the conditions and limitations. THE said provision reads: 'where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where in the execution of any such decree, any question of law of usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt and Court may, either of its own motion or on the application of any of the parties draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision of the High Court. ' It is evident that the power under the above provision is discretionary and it is for the Court to decide whether it should make a reference to the High Court. But if a case involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case and the Court is of opinion that such Act, Ordinance, regulation or provision is invalid or inoperative and has not been so declared by the High Court or the Supreme Court, it is obligatory on the part of the court to state a case setting out its opinion and the reasons therefor and refer the same for the opinion of the Court.

(3.) IN this Court, the petitioner did not press the contention that his debt stood discharged by virtue of Ordinance 1 of 1977 and that it is not revived on the repeal of that Act. Under S. 1 (3) of Act 17 of 1977, that Act is to be deemed to have come into force on the 13th of January, 1977, which corresponds to the date of commencement of Ordinance 1 of 1977. Ordinance 1 of 1977 was replaced by Ordinance 9 of 1977. S. 13 (1) of Act 17 of 1977 repealed Ordinance 9 of 1977. S. 13 (2) enacted that notwithstanding the repeal of Ordinance 9 of 1977, anything done or deemed to have been done or any action taken or deemed to have been taken under that Ordinance shall be deemed to have been done or taken under the Act. A Division Bench of this Court held in Ahamed v. Usha Trading Corporation (1978 KLT. 508) that the effect of the retrospective repeal and re-enactment is to create a legal fiction that ordinance I of 1977 had never come into effect and that the provisions of Act 17 of 1977 were in force from 13-1-1977 onward.