KALYAN SINGH Vs. AJUDHYA PRASAD

JUDGEMENT

(1.) This is a reference by the Munsif of Tilhar through the District Judge of Shahjahanpur on two questions of law on which the Court below entertains a reasonable doubt and they have been sub-mitted to us for our opinion. The facts are that one Kalyan Singh held a simple money decree, No. 939 of 1929 of the Small Cause Court of Tilhar against Ajudhia Prasad. The first application for execution of the decree was made on 11 March 1932, and the application which has given rise to the present reference is an application for execution dated 19th March 1937, and execution is sought by attachment and sale of the agricultural produce of Ajudhia Prasad, the judgment-debtor. Presumably the decree has been kept alive. Ajudhia Prasad has objected, and his contention is that he is an agriculturist within the meaning of the U.P. Agriculturists Relief Act, Local Act 27 of 1934, and under Section 6 no decree passed by a Civil Court against an agriculturist shall be executed by attachment or sale of agricultural produce after a period of four years calculated from the date of the filing of the first application for execution. As we said before, the first application for execution was made on 11th March 1932, and the present application dated 19 March 1937 has been filed more than four years after the first application and is for attachment and sale of the agricultural produce of the judgment-debtor. The learned Munsif has therefore asked us to give an opinion on the following two points: (1) Whether Section 6, Agriculturists Relief Act, only applies to decrees passed after the commence-ment of the Agriculturists Relief Act or also to decrees passed prior to its commencement? (2) Whether the first application for execution referred to in Section 6 means the first application for execution made after the commencement of the Agriculturists Belief Act or the first application for execution of the decree whether made before or after the commencement of the Agriculturists Relief Act?

(2.) It seems that it was argued before the Court below by the decree-holder that the operation of Section 6 was limited to decrees passed after the commencement of the Act and the first application for execution mentioned in the section applied to the first application after the commencement of the Act, and the argument seems to be based on the principle that the Legislature has no authority to pass a law which may have the effect of curtailing or divesting vested rights. The learned Munsif is of the opinion that the Section applies both to decrees passed prior to the commencement of the Act and after it and that the "first application for execution" referred to in Section 6 means the "first application for execution made after the commencement of the Act." He holds the view that proviso 2 of Section 6 makes a reference to Section 5 which applies both to decrees passed prior to the commencement of the Act and also after it and that gives a clear indication that Section 6 was intended to apply to all decrees whether passed before or after the commencement of the Agriculturists Belief Act, but the expression "first application for execution" in Section 6 cannot be given a retrospective effect because that would have the effect of curtailing the valuable period of limitation.

(3.) The word "decree" and the phrase "first application for execution" occurring in Section 6 are not qualified by any limitations and are general in their application; the Section, as it reads, would apply to "all decrees" and to "all first applications for execution," and the only question that we have got to decide is whether we ought to impose any limitations by reason of any well recognized principle. Now it cannot be denied that the Legislature has full authority to pass retrospective laws even to the divestment of vested rights; but when it intends to do so, it must do so by clear expression or unmistakable indication on the face of the law itself. It was held in Lal Mohan Mukerjee V/s. Jogendra Chunder Roy (1887) 14 Cal. 636 (F.B.) by a Bench that: The provision of an Act which creates a new right cannot in the absence of express legislation or direct implication, have a retrospective effect.