VISHWANATH NARAYAN SINGH Vs. HARIHAR GIR

JUDGEMENT

(1.) This appeal arises out of a proceeding for execution of a mortgage compromise decree. In Miscellaneous Appeal No. 199 of 1938 (not admitted as yet) which arises out of the same execution proceeding and is by the same appellant, this Court on 6 July 1938 ordered that if the judgment-debtor- appellant deposited to the credit of the decree-holder a sum of Rs. 100 by 11th July next, the sale of the mortgaged properties would be adjourned for two months and if within that period he deposited Rs. 6000 the execution would be stayed. The judgment-debtor-appellant deposited Rs. 100 but did not deposit Rs. 6000. In the meantime a fresh sale proclamation was issued fixing 12th September 1938 for sale. On 15 July 1938 came into force certain Sections (including Secs.16 and 17), Bihar Money-lenders Act, of the Provincial Legislature (Act 3 of 1938). The judgment-debtor raised fresh objections to "the execution and asked the Court to take steps under the new Act. One of them which alone has been pressed before us was that the Court should fix the value of the properties to be sold as enjoined in Section 16 of the Act. The learned Subordinate Judge held that it could not be done as the Section was applicable only when application for execution of a decree was made after the Act came into force. The objections were rejected and the judgment-debtor has preferred this appeal, and the only point urged is the non-compliance of Section 16, Money- lenders Act.

(2.) The learned Advocate-General for the appellant contended that the views of the learned Subordinate Judge as to the applicability of Section 16, Bihar Money- lenders Act are erroneous. Its application cannot, in its terms, be restricted to the execution proceedings started after the Act came into force Mr. Khurshaid Husnain for the respondent has supported the order of the learned Subordinate Judge on three grounds: the first is that the Section applies only to proceedings which were started or will be started after the Act came into force, namely 15 July 1938, and not to all the pending execution proceedings; the second is that Section 16 overrides only the provision contained in any other Jaw or in anything having the force of law, but unlike Section 15 it does not override the contracts between the parties or a decree or order already passed and the decree-holder is entitled to proceed to sell the entire property without its being valued by the Court beforehand; the third ground is that Section 16 of the Act along with Section 17 which follows it, is void under Section 107, Government of India Act of 1935, as it is repugnant to a provision of the Civil P. C., an "existing Indian law," namely Order 21, Rule 66, as it stood on 1 April 1937.

(3.) As regards the first contention that the Section is applicable only to execution proceedings started after the Act came into force, there is no substance in it, though this view was adopted by the learned Subordinate Judge. In my opinion the words, when an application is made for the execution of a decree passed in respect of a loan, &c, &a. mean nothing more than when a decree specified in the Section is under execution. It was contended that steps provided in this Section are to be taken immediately after an application is made for the execution of a decree and as the application for execution in this case was made when the Act was not in force, the steps provided in the Section cannot be taken now. This contention, if accepted, will lead us to a number of complications and anomalies. Under the amended Order 21, Rule 22, notice to judgment-debtor is necessary in all cases except when there is an oral application for execution by arrest. It is obvious that unless notice is issued and served upon the judgment-debtor, no enquiry about the valuation of the properties can be made. Section 16, Money- lenders Act, prescribes procedure for the sale of the property of the judgment- debtor and the procedure to be followed in pending cases, when a new procedure is prescribed by law, will be according to this new rule, so far as it is applicable and not according to the old rule. On a reading of the Section, it is quite clear to me that in those execution cases which on 15 July 1938 were at a stage when the properties were not sold, the sale must be according to the procedure laid down in that Section, provided of course that the Section is not void. Therefore the view taken by the learned Subordinate Judge was, in my opinion, wrong. Apart from this the question has been made clear by a declaratory Act of the Provincial Legislature (Act 5 of 1938), which came into force when this appeal was being heard by us (19 September 1938). This Act declares [ Section 3(2)] that the provisions of Secs.15 to 18 (both inclusive) of the Money-lenders Act shall apply and shall be deemed to have always applied to proceedings in execution arising out of suits referred to in Sub-section (1) of Section 3 whether such proceedings were instituted before or after the said Secs.came into force.