LAXMAN DHULSHET NARAYANPURE Vs. GANPAT NATA SHETE

JUDGEMENT

(1.) THIS reference has been made by the Taxing Officer under Section 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 Section 24 of the Bombay Money -lenders Act, 1946. In three of the four cases, applications filed by judgment debtors under Section 24 of the Act for making the decretal amounts payable by instalments were rejected by the Courts below. In the fourth case, the application of the judgment -debtor was partially 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 Section 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 general importance and hence he made this reference.

(2.) THE question raised by the Taxing Officer is not free from difficulty. 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 Section 24 of the Bombay Money -lenders Act seeks in effect a partial modification of the decree passed against him, and that, therefore, an order passed by the Court either allowing or rejecting his 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 decrees 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 this type are not few. An executing Court is required to execute the decree in accordance with the prevailing law3 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 Section 47 of the Code. It was argued before us by Mr. Paranjape that an order which is passed by the Court under Section 24 is an order of this nature. The Legislature, according to him, provided a 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 favour of a particular judgment -debtor. We might have accepted this argument if Section 24 of the Bombay Moneylenders 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 executing 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