MOHAMMAD AZAMAT AZIM KHAN Vs. RAJA SHATRANJI

JUDGEMENT

(1.) This is an application for review of an order passed by this Court on 27-11-1962 by which it rejected the applicant's revision application arising out of an order passed by a Civil Judge rejecting his application made under Section 4 of the Zamindar's Debt Reduction Act for amendment of several simple decrees passed by a Special Judge under section 14 of the Encumbered Estates Act, The applicant had contended in his application under Section 4 that there were mortgaged properties charged under the decrees and this court held that no charge was created by the decrees and that consequently the applicant was not entitled to apply under Section 4 of the Zamindar's Debt Reduction Act. This Court accordingly maintained the dismissal of the application by the Civil Judge. On 4-12-1962 Section 4 of the Zamindars' Debt Reduction Act was amended by Amendment Act No. XX of 1962 and the words "charged under the decree'' occurring in Section 4 were deleted. Section 2 of the Amendment Act laid down that the Zamindars' Debt Reduction Act "shall, as from the date of its enforcement, have effect, subject to the amendments made by this Act, as if this Act had been to force on all material dates". The effect of this amendment was that the words "charged under the decree'' were deemed always to have been omitted from Section 4, i.e. they were deemed to have been never present in Section 4. If those words were not there in Section 4 the view taken by this Court was admittedly wrong on the face of it. This Court took the view that the applicant had no right to apply for amendment because of those words "charged under the decree" in Section 4 but if those words were to be deemed to have been never there it meant that the view taken by this Court was wrong on the face of it. So this application was made under Order 47, Rule 1 for review of the Order passed by this Court.

(2.) The question today is whether the judgment passed by this court on 27-11-1962 was erroneous on the face of the record or not. It is not in dispute that if the words "charged under the decree" did not exist in Section 4 on the date on which this Court parsed the judgment his judgment would be erroneous on the face of the record. Then the only question that remains is whether the words were in Section 4 on the date on which this Court passed a decree or not and the answer to it is furnished by Section 2 of the Amendment Act laying down clearly that those words are never to be deemed to have been there in Section 4. That is the effect ever since the Amending Act came into force on 4-12-1962. If on or after that date a question arose as to what was Section 4 it had to be answered as if the words "charged under the decree" did not exist in Section 4. That is the only meaning of the legal fiction involved in Section 2 of the Amending Act. It is immaterial that as viewed on 27-11-1962 when this Court passed the judgment it was correct; because by virtue of Section 2 of the Amending Act it had become incorrect and incorrect on the face of the record when viewed after 3-12-1962. Though the question relates to the correctness or incorrectness of the judgment delivered on 27-11-1962, it comes up for decision today, i.e., after 3-12-1962 and the law after 3-12-1962 is that Section 4 must be read without those words. When this section is so read today it must be held that the judgment passed by this Court after reading those words in the section was clearly erroneous. Therefore, though the question is of correctness or incorrectness of the judgment passed on 27-11-1962, it is to be decided today and when it is to be decided today it must be decided in accordance with the law existing today. According to that law the judgment pronounced on 27-11-1962 was erroneous on the face of the record.

(3.) The instant case is to be distinguished from a case in which a view taken by a Court is found to be erroneous subsequently by a superior court; in that case it may not be said that the view taken by the lower court was erroneous on the face of the record because the view taken by the superior court is not given a retrospective effect. It is true that the superior court simply interprets the law and that the law so interpreted existed when the lower court interpreted it itself, but when the lower court interpreted it, it was not free from doubt and the decision given by the superior court at a later date did not remove the doubtful features of the law with retrospective effect. If the law was not free from doubt when the lower court decided it, it cannot be said that its decision was erroneous on the face of the record. In the present case the Amending Act has been given retrospective effect with the result that this Court, when deciding today what was Section 4, has to assume as real all consequences and incidents flowing from the Amending Act being given retrospective effect. In other words, this court has to assume today, and proceed on the footing, that on 27-11-1962 Section 4 did not contain the words "charged under the decree''. No such effect arises from a subsequent decision given by a superior Court.