MOHANLAL KANAYALAL Vs. LALCHAND MOTILAL MALANI

JUDGEMENT

(1.) THIS application arises out of somewhat unusual circumstances. The opponents executed a mortgage in favour of the petitioner on. January 24, 1950. On December 13, 1955, they made an application to the Debt Conciliation Board under Act I of 1349 Fasli. After this the petitioner filed a suit in the Court of the District Judge at Aurarigabad on January 4, 1956. The claim in the suit was 39,100 0.8. equivalent to a sum of Rs. 33,514 -4 -0 I.G. currency. The Board came to an ex parte decision that the petitioners before it were agricultural debtors and, therefore, issued a certificate to the Civil Court on January 12, 1956, of the pendency of the application before it. As a result of the certificate of February 5, 1957, the suit came to be stayed. The Hyderabad Agricultural Debtors Relief Act came into force on September 30, 1956. Section 65 of the Act repealed the Conciliation Act and dissolved the Boards. On October 28, 1958, the petitioner made an application to the District Judge at Aurangabad that the stay should not be continued and the District Court should proceed with the suit filed by the petitioner. The learned District Judge observed that from the certified copies of the proceedings of the Board it appeared that the life of the Board expired on September 30, 1956, and thereafter no extension was made by the Government. He held that in view of Section 28 of the Debt Conciliation Act as there was no final decision of the Board, the proceedings in his Court could not go on, and he had no jurisdiction to take up the trial of the suit. It is against this decision that the present Revisional Application is directed.

(2.) THE question concerns interpretation of Section 65 of the Hyderabad Agricultural Debtors Relief Act, 1956. Until this Act was passed, the Debt Conciliation Act I of 1349 Fasli was in force in the Hyderabad State. According to the provisions of this Act, Boards were constituted with defined territorial jurisdiction for conciliation between debtors and creditors. The debtors were permitted to make applications for conciliation of their debts and certain consequences followed. By the enactment of the Agricultural Debtors Relief Act, these provisions were repealed. Section 65, the repealing section, so far as is relevant, is to the following effect: - The Debt Conciliation Act, 1349 F., is hereby repealed. All Boards established under section 3 of the repealed Act shall be dissolved: Provided that - (a) All proceedings pending before any such Board at the date when this Act comes into force shall - (i) it they are within the pecuniary limits of the jurisdiction of a Court, be continued and disposed of by the Court under this Act as if an application under Section 4 had been made to the Court in respect thereof; (ii) if they are beyond the pecuniary limits of the jurisdiction of a Court, be continued and disposed of as if this Act had not been passed;... Under the scheme of the latter Act (Hyderabad Agricultural Debtors Relief Act, 1956), the Courts having jurisdiction to deal with applications under the Act are three as denned by Section 2, Sub -section (4). These Courts are, the Munsiff's Court, the Subordinate Judge's Court, or a Judge of the City Civil Court having ordinary jurisdiction in the area in which the debtor ordinarily resides. The City Civil Court has jurisdiction in Hyderabad City and it can deal with applications of debtors residing within its jurisdiction. Each of these Courts had different pecuniary jurisdiction and the scheme of the Act is that an application has to be made by a debtor to the Court of the lowest pecuniary jurisdiction. Consistent with this scheme, the first part of the proviso to Section 65 provides that any application pending before the Board on that date should be transferred to the Court having jurisdiction to deal with the application and should be continued and disposed of by that Court under the new Act. The question is, what is to happen to applications pending before the Boards and beyond the pecuniary jurisdiction of the Courts and where the indebtedness of the debtor was beyond Rs. 15,000, so that the adjustment of the debts could not be made under the provisions of this latter Act? On the one hand it is contended by Mr. Vaishnav that Sub -clause (ii) of Clause (a) of the proviso to Section 65 is inconsistent with the earlier part, by which all Boards established under Section 3 of the repealed Act are dissolved and in view of this inconsistency, it must be regarded as ineffective and void. It is argued on the other hand by Mr. Kanade that that cannot be the meaning of the section. What is meant is that the Boards before which those applications were pending still continue to exist or in any case the powers under Section 3 of the repealed Act to appoint fresh Boards still continues. The question is, which of the rival contentions is correct and what is the result of the acceptance of the one or the other ?

(3.) ONCE this conclusion is reached, what is the result? Though these two clauses are worded as proviso, in substance, these are saving clauses and must be construed as such. Crawford on Statutory Construction at page 612 (para. 300) says: - As we have stated elsewhere, the saving clause is used to exempt something from immediate interference or destruction. It is generally used in repealing statutes in order to prevent them from affecting rights accrued, penalties incurred, duties imposed, or proceedings started under the statute sought to be repealed. Its position or verbal form is unimportant. But if it is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective, or void... Craies on Statute Law (Fifth ed.) at page 203 -204 says:.and that if the repugnant clause is in the form of a saving clause, then this rule holds good no longer, for it is said that a saving clause which is repugnant to the purview of the Act is to be rejected and treated as void... I may also refer to the observations of Fry, J. in the case of Corporation of Yarmouth v. Simmons (1878) 10 Ch. D. 518 wherein he says (p. 528) :.But in the next place, it is to be observed that this section is only a saving clause in a general Act, and it appears to me that, even if it would in itself have covered the alleged right, and have protected it, yet being, as I have pointed out, physically inconsistent with the doing of the thing which is authorized to be done by the special Act, that saving clause would cease to be operative. I think the law is clearly laid down by Lord Coke in the Case of Alton Woods 1 Co. Rep. 40 b, that a saving clause in an Act of Parliament which is repugnant to the body of the Act is void.... Under these circumstances, the second part of the proviso must necessarily be treated as void and ineffective.