STATE OF BOMBAY Vs. L D NARAYANPURE

JUDGEMENT

(1.) This reference has been made by the Taxling Officer under s. 5 of the Court-Fees Act, and the learned Chief Justice has directed us to decide the question so raised. The question relates to the Court-fees chargeable on four appeals, each arising from an order passed under s. 24 of the Bombay Money-lenders Act, 1946. In three of the four cases, applications filed by judgment-debtors under S. 24 of the Act for making the decretal amounts payable by instalments were rejected by the Courts below. In the forthe case,the application of the judgment-debtor was partally granted and the judgment-debtor has come in appeal on the ground that the relief granted to him was inadequate. The Taxing Officer was of the view that no appeal could be filed from a decision under s. 24 of the Bombay Money-lenders Act and that the appellants in the four appeals may, if they so desired, convert the appeals into civil revision applications and that Court-fees may then be levied on that basis. the Taxing Officer, however, felt that the question involved was of generalimportance and hence he made this reference.

(2.) The question aised by the Taxing Officer is not free from difficulrty. Section 24 of the Bombay Money-lenders Act, 1946, is in the following terms:

(3.) We will deal first with the First of these alternative arguments. The Taxing Officer was of the view that a judgment-debtor seeking a direction under S. 24 of the Bombay Money-lenders Act eeks in effect a partial modification of the decree passed against him, and that therefore an order passed by the Court either allowing or rejecting him application cannot be regarded as an order relating to the execution, discharge or satisfaction of that decree. This view of the Taxing Officer assumes what undoubtedly is the general rule, namely, that an executing Court will execute a decree as it is, without any modification or qualification. Nothing, however, prevents the Legislature from modifying or qualifying the rights of decree-holders in executing the decrees passed in their favour. If the Legislature passes an enactment which limits the decretal rights of a decree-holder, the executing Court is bound to execute the decree subject to the limitations so placed by the Legislature. the Legislature may prevent decres from being executed against certain classes of property (e.g. section 10, Bombay Hereditary Offices Act, 1874); it may provide that no process shall be issued against certain classes of judgment-debtors for a specified period (e.g. The Bombay Small Holders Relief Act, 1938). Instances of legislation of this type are not few. An executing Court is required to execute the decree in accordance with the prevailing law, and an order passed by the executing Court on whether the decree under execution is limited or otherwise qualified by a legislative enactment does not cease on that account to be an order under S. 47 of the Code. It was argued before uuus by Mr. Paranjape that an order which is passed by the Court under S. 24 is an order of this nature. the Legislature, according to him, provided qualification to the rights of the decree-holder in the case of decrees passed on loans, and it is well within the function of the executing Court to decide whether the qualification imposed by the Legislature was available in fvour of a particular judgment -debtor. We might have accepted this argument if S. 24 of the Bombay Money-lenders Act were merely declaratory of the rights of judgment-debtors in the execution of decrees to which that section applies. In that case it would have been the duty of an exeuting Court to consider the rights of the judgment-debtor so declared by the Legislature and to execute the decree accordingly. The wording of Section 24, however, shows that it is not merely declaratory. It empowers the Court to "direct that the amount of any decree......shll be paid in such number of instalments and subject to such conditions and payable on suh dates, as......it considers fit". Section 24 enables the Court to give a direcrton, and the direction so given may itself be executable. It must, therefore, follow that the Court, while exercising the powers under S. 24, does not merely consider te prevailing law as it applies to the execution of decrees already passed, but decides whether positive directions should be given in partial supersession of the terms of decrees previously passed. Such an order cannot, therefore, be regarded as a determination of a question within S. 47 of the Code of Civil Procedure.