Mohd. Abdul Razzaq v. Parvati Devi — 1942 DIGILAW 117 (ALL)

JUDGMENT Iqbal Ahmad, C.J., Dar and Plowden, JJ. - This is a judgment debtor's appeal and is directed against an order passed by the Court below rejecting an application for the amendment of a decree u/s 8 of the Unite-Provinces Debt Redemption Act (XIII of 1940). 2. The decree in question is a simple money decree that was obtained by the Respondent decree-holder against the judgment-debtor Appellant so far back as on May 30, 1932. The decree was for about Rs. 6,(sic)0 and was payable by instalments. There was default in the payment of instalments and the decree-holder, then, on June 1, 1935, applied for execution of the decree by arrest of the Appellant. The Appellant paid a sum of Rs. 200 in part satisfaction of the decree and thereafter the application for execution was dismissed on July 22 1935. 3. On April 25, 1936, the Appellant, who is an agriculturist, applied for the amendment of the decree by reduction of interest and granting of instalments under the Agriculturists' Relief Act. The application for amendment was allowed and the decretal amount was reduced to Rs. 3419-9-2 and was made payable in four years by equal yearly instalments. The Appellant again defaulted in payments of the instalments with the result that the Respondent on March 9, 1939, filed an application for execution of the decree by the attachment and sale of certain shops belonging to the Appellant. During the progress of the execution the Appellant on January 7, 1941, applied for amendment of the decree u/s 8 of the Debt Redemption Act. The decree-holder then on January 18, 1941, filed a declaration in conformity with the provisions of Clause (3) of Section 4 of the Act to the effect that the decree "shall not be executed against the land, agricultural produce or person of" the Appellant and on the strength of this declaration contended that the Appellant is not entitled to have the decree amended. In support of this contention the decree-holder relied on Sub-section (3) of Section 4 of the Debt Redemption Act which provides: No decree recoverable from an agriculturist shall be amended under the provisions of this Act if the creditor declares that such decree shall not be executed against the land, agricultural produce or person of such agriculturist. 4. In support of this contention the decree-holder relied on Sub-section (3) of Section 4 of the Debt Redemption Act which provides: No decree recoverable from an agriculturist shall be amended under the provisions of this Act if the creditor declares that such decree shall not be executed against the land, agricultural produce or person of such agriculturist. 4. The judgment debtor, on the other hand, contended that as the decree holder had executed the decree in 1935 against his person, the declaration now made by her (the decree-holder) was incompetent in view of the third proviso to Sub-section (sic) of Section 4 and that, notwithstanding that declaration, he was entitled to have the decree amended in conformity with the provisions of Section 8 of the Act. The third proviso runs as follows: Provided also that no declaration shall be made under Sub-section (3) where the creditor has already applied for execution against the land, agricultural produce or person of such agriculturist. 5. The Court below held that the words "already applied" in the proviso have reference only to applications for execution made after the Act came into force and not to applications for execution made before the passing of the Act. It held that the third proviso was applicable only to cases in which the decree-holder had applied for execution of the decree after the passing of the Act "against the land, agricultural produce or person" of the agriculturist judgment-debtor. In this connection the Court below observed that what the legislature apparently intended was that after this Act had come into force the decree-holder must make up his mind whether he is agreeable to have the decree against an agriculturist amended or not If he is agreeable to this course he must file a declaration of the nature referred to in Sub-clause (3).... He cannot be allowed to execute his decree in a manner inconsistent with the declaration provided for by Sub-clause (3), after he has become cognisant of his rights under the Act and then to turn round and seek to defeat an application for amendment by filing a declaration. 6. He cannot be allowed to execute his decree in a manner inconsistent with the declaration provided for by Sub-clause (3), after he has become cognisant of his rights under the Act and then to turn round and seek to defeat an application for amendment by filing a declaration. 6. In this view of the matter the Court below held that the declaration made by the decree holder was a competent declaration and satisfied the requirements of Sub-section (3) of Section 4 and as such, the judgment-debtor was not entitled to have the decree amended We are unable to agree with the decision of the Court below. 7. The answer to the question, whether a, decree-holder who had, before the passing of the Act applied for execution of his decree against the land, agricultural produce or person of the agriculturist judgment-debtor is barred from making the declaration contemplated by Sub-section (3) of Section 4, depends on the interpretation that is put on the words "has already applied for execution" in the third proviso to Sub-section 3. A somewhat similar question arose for decision in the Full Bench, case of Shri Nath v. Puran Mal 1941 AWR (Rev) 1175 and the Full Bench, of which two of us were members, held that the word "already" in Section 30(2) of the Agriculturists' Relief Act had reference to decrees passed before that Act came into force and not to decrees passed after the coming into force of that Act. Three separate but concurrent judgments were delivered by the three Judges constituting the Full Bench and in the course of those judgments reasons were assigned in support of the view that the word "already" in Section 30(2) of the Act had reference, in its ordinary grammatical sense, to the date when the Act came into force. It was pointed out in that case that it is a recognized principle of construction that, in the absence of some compelling indication to the contrary, an adverb of time has reference to the present and in relation to a Statute, to the time from which the Statute comes into force. In support of this decision reliance was placed by the Full Bench on the decision in Godden v. Hythe Burial Board (1906) 2 Ch 270 at p. 274, in which Mr. In support of this decision reliance was placed by the Full Bench on the decision in Godden v. Hythe Burial Board (1906) 2 Ch 270 at p. 274, in which Mr. Justice Kekewich is reported to have observed as follows: We are not dealing with a technical word, but with a word in common use in the English language and it is one which has no technical meaning whatever. The rule in such cases is to construe the word according to its popular and colloquial meaning. What is the meaning of the word 'already' in the popular or colloquial sense? It means 'at this time' or 'now'. Reading the Act through, it reads thus: 'No ground not now used as or appropriated for a cemetry. That 'now' can only mean, it seems to me, at the date of the passing of the Act. There is no 'now' with reference to an Act of Parliament except the date when it receives the royal assent. There might possibly be an exception where the coming into operating of the Act is deferred: but, as at present advised, I do not think even that would alter it. 'Now', it seems to me, points to the date when the Act in which the word is used becomes an Act, that is, when it receives the royal assent. I see nothing in the authorities which have been cited to make me think that that is otherwise than perfectly correct. 'The point is not decided but the authorities, I think, point to that conclusion'. 8. For the reasons given in the Full Bench case referred to above we are of the view that the words "has already applied for execution" in the third, proviso to Sub-section (3) of Section 4 of the Debt Redemption Act have reference not only to applications for execution made after the passing of the Act but also to applications for execution made before the Act came into force. To adopt the view taken by the Court below would be to introduce Word's to the effect "after the passing of the Act" in the third proviso--words which are not there When the words used by the legislature In a Statute are clear it is not permissible for the Courts to depart from the ordinary arid plain meaning of the words used on the mere supposition that the intention of the legislature was otherwise than indicated by the plain and ordinary interpretation of the words used. The words "has a ready applied" in the third proviso are words of general import and are not controlled by any restrictive provision. It, therefore, follows that the third proviso applies to all those cases in which the decree-holder had put his decree in execution by one of the modes referred to in Sub-section (3) whether before or after the pissing of the Act. A contrary view was taken by a learned Judge of this Court in Babunandan Lal v. Parsottam Sahu. 1942 AWR (HC) 84. But for the reasons given above we are unable to agree with that decision in so far as it lays down that Proviso 3 does not apply to an execution application made and disposed of before the Act came info force. 9. That the view taken by us accords with the plain and ordinary meaning of the words used in the proviso may be illustrated by the following example. 10. The Debt Redemption Act came into force on January 1, 1941. Take, a case in which a decree-holder had, before the passing of the Act, applied for execution of his decree against agriculturist judgment-debtor by his arrest and that application for execution had been dismissed. Again after the passing of the Act the decree-holder filed a second application for execution on January 1, 1941 and incorporated in the application for execution the declaration contemplated by Sub-section (3) of Section 4, The judgment-debtor, on the other hand, on the same date, viz., on January 1, 1941, filed an application for amendment of the decree u/s 8. It seems plain to us that on January 1, 1941, it would be open to the judgment-debtor to say that an application for execution had already been made by the decree-holder and as such, the third proviso was applicable. 11. It seems plain to us that on January 1, 1941, it would be open to the judgment-debtor to say that an application for execution had already been made by the decree-holder and as such, the third proviso was applicable. 11. We, therefore, hold that the declaration made by the decree-holder in the present case was incompetent and the Court below was wrong in refusing to amend the decree in conformity with the provisions of Section 8 of the Act. 12. A preliminary objection to the hearing of the appeal was taken by the Learned Counsel for the decree-holder Respondent. He contended that as no right of appeal against an order rejecting an application for amendment of decree was given by the Act the decision of the Court below was final. In our judgment there is no force in this contention. Apart from the fact that by Section 24 of the Debt Redemption Act the provisions of the Code of Civil Procedure, save in so far as they are inconsistent with the provisions of that Act, have been made applicable to all proceedings under that Act, the present order of the Court below does, in our judgment, fall within the purview of Section 47, Code of Civil Procedure, The judgment-debtor by his application for amendment wanted reduction of the decretal amount and the reduction sought by him was clearly a matter relating to execution or discharge of the decree. The order of the Court below was, therefore, appealable to this Court. 13. The result is that we allow this appeal, set aside the decision of the Court below and remand the case to that Court with the direction to restore the same to its original number and to try and dispose of the same according to law. The Appellant is entitled to the costs of this appeal.