MUTHUKRISHNA PILLAI Vs. AYYASWAMI AIYAR

JUDGEMENT

(1.) In my opinion the Court of first instance is clearly right in its view of the law. An interim order of attachment of 2nd defendant's immoveable property before judgment was passed on 15 January, 1926 and the attachment was made absolute when the decree was passed on 30 March, 1926. Meanwhile, Act I of 1926 had come into force on 24 February, 1926. This, was an explanatory Act passed with reference to the conflicting views which had been taken as to the power of a Small Cause Court to attach immoveable properties before judgment. By that Act, to Order 38, Rule 12 of the Civil P. C. was added another Rule 13 declaring that Small Cause Court had no such powers. There is no dispute, therefore, that when the attachment order in this case was made absolute on 30 March, 1926, it was an order beyond the powers of the Court to pass.

(2.) Act I of 1926 being a declaratory Act, the usual presumption that an Act is not retrospective does not apply vide Attorney-General V/s. Dusdley Craies on Statute Law, p. 336, 3 Ed. vide, also Mohammadi Bibi V/s. Kashi Upadhya (1926) 96 I.C. 775. Moreover, even otherwise a right to apply for attachment is, I agree with the learned District Munsif, a processual right, and, as he puts it, a privilege whose exercise depends entirely on the discretion of the Court.

(3.) The learned Appellate Judge has, in my opinion, taken a wrong view in saying that Act I of 1926 took away any jurisdiction which the Small Cause Court had before. There is absolutely nothing repealed by the Act. As a new rule had to be added to resolve the disputed point, it had of course to be called an amending Act as well as an explanatory Act. I disagree with the views expressed in paragraph 8 of his judgment that "the power possessed by a Court to order attachment before judgment was expressly taken away and repealed" and that "Act I of 1926 is a repealing Act as well as an amending Act."