HABIBA BIBI Vs. RAM RANJAN MULLICK

JUDGEMENT

(1.) The question involved in this appeal raises an important question of first impression, namely, about the scope of Section 10-C, Court of Wards Act, introduced into the Bengal Court of Wards Act of 1879 by the Amending Act 6 of 1936. The relevant facts are not in controversy and may be stated as follows. The appellants obtained on 23 April 1932 a decree for Rs. 5,445-14-3 against the respondents, Ram Ranjan Mullick and others, who would hereafter be called the Mullicks. At that time the Mullicks were not wards of Court, but later on, on a date not material for the present proceedings, they were declared disqualified proprietors and the Court of Wards assumed management of their properties. On 2 November, 1935 the appellants put their decree into execution in the Court of the SubordinaTe Judge of Burdwan. At that time the Mullicks were wards of Court and so the execution was against them, represented by the manager of the Court of Wards. In the mon December, 1935 some immovable properties in charge of the Court of Wards were attached; the terms of the sale proclamation were settled on 27 January, 1936 and on that date the sale was fixed for 5th April 1936. Later on, the sale was postponed to 5 May 1936. In the meantime Section 10-C, Court of Wards Act of 1879, was amended by Act 6 of 1936 [called the Court of Wards (Amendment) Act of 1935]. The said Act received the assent of the Governor-General in February 1936 and was published in the Local Gazette on 5 March 1936. From that date it came into force. On 28 March 1936 the judgment-debtors filed an application wherein they took up the position that the execution could not proceed further by reason of Section 10-C as amended toy Act 6 of 1936. The learned Subordinate Judge overruled the judgment-debtors objection and allowed the execution to proceed. On appeal the learned District Judge agreed with the contention put forward by the judgment-debtors and dismissed the execution by his order dated 27 April 1936. It is against this order that this appeal has been filed by the decree-holders. Section 5 of Act 6 of 1936 has bodily removed Section 10-C from the parent Act and has substituted for it the following: 10-C. (1) Where any property is in charge of the Court of Wards no civil Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935 or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.... In calculating the period of limitation applicable to an application for execution of a decree or order, the time during which the execution of such decree or order is barred under this sub-section shall be excluded.

(2.) The second sub-section is not material for the decision of this appeal. Section 10-C of the parent Act which was introduced by the amending Act of 1906 ran as follows: If a civil Court has directed any process of execution to issue against any immovable property of a ward, or rents thereof, or any crops standing thereon, the Court of Wards may, at any time within one year after it assumed charge of such property, apply to the civil Court to stay proceedings in the matter of such process; and the civil Court may, on such terms regarding interest or compensation for delay as may appear to it to be just and reasonable, stay such proceedings for such period as it may deem fit.

(3.) The decree-holders-appellants contend that Section 10-C which came into force on 5th March 1936 has no retrospective effect, at any rate does not apply to pending executions. A point of minor importance is also raised, namely, that if it applies to the present execution the proper order for the Court would be to stay the execution proceeding and not to dismiss it. The principles governing retrospective operations of statutes are well settled. When a statute takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already past the presumption is, but it is only a presumption, that it is not to have retrospective operation. It is also a general rule that a statute which takes away or affects a right of action is presumed not to apply to pending actions. But these are general rules and are displaced when the intention of the Legislature, either expressed or to be gathered by necessary implication, is otherwise. Where the intention of the Legislature to give retrospective operation is not indicated by express words, the scope of the Act must be taken into consideration in deciding whether retrospective operation was intended by necessary implication. Bearing these principles in mind we have to gather the intention of the Legislature in respect of Section 10-C of the new Act. The Legislature has not by using express words made the section retrospective.