Seth Radhey Lal v. Roop Ram — 1942 DIGILAW 123 (ALL)

JUDGMENT Bajpai, Dar and Yorke, JJ. - This is a reference under Order 46, Rule 1 Code of Civil Procedure, by the Judge, Small Cause Court of Meerut, for our determination of a question of law which has arisen in a pending suit before him, about which he entertains reasonable doubts, in the following circumstances. 2. On June 24, 1935, Roop Ram borrowed a sum of money from Radhey Lal on a bond which was payable within six months. The money due under this bond was not paid to Radhey Lal on due date and a right to sue arose in his favour on December 24, 1936 and this right could be enforced under the Law of Limitation (Act IX of 1908) upto December 24, 1939. 3. At the time of loan at all material times Roop Ram, the borrower, was and has been an "agriculturist". On January 1, 1938, a law for the relief of judgment-debtor who were agriculturists and called the Temporary Postponement of Execution of Decrees Act (X of 1937) came into force and it was to remain in force for six months By Act XV of 1938 and by Act VI of 1940 this period of six months was extended to twenty four months and thirty months respectively; with the result that the said Temporary Postponement of Execution of Decrees Act remained in force from January 1, 1938 to December 31, 1940. Section 5 of the Temporary Postponement of Execution of Decrees Act provides as follows: 5 (1) In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for (a) the institution of a suit in a Civil Court against an agriculturist for money or foreclosure or sale in enforcement of a mortgage and (b) the execution of such decree as is referred to in Section (3) and not covered by Section 6, the period during which this Act shall remain in force shall be excluded. (2) In computing the period of twelve years prescribed by Section 48 of the CPC 1908, the period during which this Act shall remain in force shall be excluded. 4. (2) In computing the period of twelve years prescribed by Section 48 of the CPC 1908, the period during which this Act shall remain in force shall be excluded. 4. Relying upon this provision numerous creditors in these Provinces raised no action against the agriculturists during the time the said Act, X of 1937 was in force and Radhey Lal, the creditor mentioned above, was one of them. 5. On December 21, 1940, a new Act called U.P. Debt Redemption Act (XIII of 1940) received the assent of the Governor General and it was published in the Gazette on December 28, 1940 and it came into force on January 1, 1941. By this Act a comprehensive scheme was laid down for relief of agricultural indebtedness and subject to certain conditions decrees were allowed to be executed against agriculturists and the ban against the execution of decrees provided by Act X of 1937 was lifted. By Section 27 of the U.P. Debt Redemption Act, 1940, read with the Second Schedule of the said Act, the United Provinces Temporary Postponement of Execution of Decrees Act, X of 1937, was repealed the whole of it. 6. On April 29, 1941, Radhey Lal raised an action in the Court of Small Causes at Meerut for recovery of money due on the said bond and he claimed that by virtue of Section 5 of the Temporary Postponement of Execution of Decrees Act, 1937, the time between January 1, 1938 and December 31, 1940, during which the said Act had remained in force, should be excluded from the period of limitation prescribed for the suit. It is not disputed that if this period could be excluded his action was within time. 7. The Defendant Roop Ram resisted the claim and he pleaded that the effect of the repeal of the Temporary Postponement of Execution of Decrees Act, X of 1937, by the U.P. Debt Redemption Act, XIII of 1940, was that the Act never existed in fact and must be taken to have been expunged from the Statute book and if this is the real effect of the repeal then undoubtedly the claim is barred by limitation. 8. The learned Judge who has referred this case to us has favoured the view that the claim was barred by limitation. 8. The learned Judge who has referred this case to us has favoured the view that the claim was barred by limitation. His grounds in substance are that the law of limitation which applies to an action is the law which is in force on the date of the action and not any pre-existing law, that the effect of the repeal of an Act is that its existence has to be disregarded for all times and for all purposes and it is taken to be expunged from the Statute book, that the law of limitation being a law of procedure in which no person has a vested right takes effect retrospectively and retrospective effect may not be given effect to a Statute of limitation if by the reason of change in law a person is left without any remedy whatever, but these considerations do not apply when there is an interval between the passing of a new Act and of its coming into force, however short, because the presumption is that the legislature contemplated that the interval thus give a should be employed for raising action under old law which was to be substituted by the passing of new Act and lastly, hard as this interpretation of the law may be upon numerous creditors of these provinces, equitable considerations have no place in interpreting any law of limitation. 9. These propositions, subject to certain reservations and qualifications, may be accepted as correct, but, in our opinion, they have no real application to the problem in this case. It is not disputed that the law of limitation which applies to this action and has always applied to this action is contained in the Indian Limitation Act (IX of (sic)). 9. These propositions, subject to certain reservations and qualifications, may be accepted as correct, but, in our opinion, they have no real application to the problem in this case. It is not disputed that the law of limitation which applies to this action and has always applied to this action is contained in the Indian Limitation Act (IX of (sic)). It is not also disputed that various provisions for computation of period of limitation and for exclusion of time and for suspension of causes of action are provided in Sections 12 to 25 Part III of the Indian Limitation Act, 1908 and they do not help the Plaintiff and that the suit is governed by Article 66 of the Indian Limitation Act and u/s 9 of the Indian Limitation Act, time having begun to run continues to run and cannot be suspended But it also can not be disputed that the entire law of limitation and all the provisions for computations of limitation and for suspension of cause of action and for exclusion of time have not been codified for all times and for all purposes in the Indian Limitation Act and it is open to the Central Legislature as also to a provincial legislature from time to time to make additional and supplemental provisions for computation of period of limitation and for suspension of cause of action and for exclusion of time and if such provisions are made they will become part and parcel of the law of limitation applicable to an action. It also can not be disputed that one such provision for exclusion of time in computing the period of limitation was made by Section 5 of the Temporary Postponement of Execution of Decrees Act, 1937 and the whole problem in the case is what is the legal effect of the fact and circumstances that the Temporary Postponement of Execution of Decrees Act had ceased to be in force and was also repealed at the time when Radhey Lal raised his action. 10. In our opinion, it is not the law that when a Temporary Act comes to an end and ceases to be in force all rights which arose under some of the provisions of the Temporary Act automatically disappear with the cessation of the Act. 10. In our opinion, it is not the law that when a Temporary Act comes to an end and ceases to be in force all rights which arose under some of the provisions of the Temporary Act automatically disappear with the cessation of the Act. In our opinion it is a question of the interpretation of the particular provision of the Statute whether it was to remain effective till the Act was to remain in force or whether it was to remain operative even after the Act had ceased to be in force. 11. Suppose the Indian Legislature passes a Temporary Act for a period of two years providing that during the period the Act remains in force no suit will be brought against the debtors and the cause of action would remain suspended but after the lapse of two years and after the Act had ceased to be in force suits would lie against the debtors and suspension of cause of action would cause and time would run against them. Can it then be reasonably contended that inspite of the express terms of the Statute time would run during those two years when it had been expressly suspended by the Statute? Similarly the Statute may provide that during two years time would be excluded in computing the period of limitation when actions are brought after a lapse of two years and if it does so, we see no reason why this express assurance given by the Statute may not be given its legal effect. 12. By reason of the passing of the Expiring Laws Continuance Act this matter has lost a great deal of its importance in England But at one time questions arose in England as to what was the effect of an expired Temporary Act on the future right of persons affected thereby. In Steavenson v. Oliver (1841) 8 M and W 234, decided by the Court of Exchequer the case related to 6 Geo. 4 c. 133 Section 4, which enacted that every person who held a commission as surgeon in the army should be entitled to practice as an apothecary without having passed the usual examination. This Act was temporary, expiring on August 1, 1826 and it was contended that a person who under the Act was entitled to practice as an apothecary would lose his right after August 1, 1825. This Act was temporary, expiring on August 1, 1826 and it was contended that a person who under the Act was entitled to practice as an apothecary would lose his right after August 1, 1825. But the Court held that such a person would not be so deprived of his right. 13. Some of the observations made by the Chief Baron and other Barons in giving their judgments in the above case may be usefully recalled. 14. Lord Abinger, C.B. observed: It is by no means a consequence of an Act of Parliament's expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an Act of Parliament; would not a person who had been guilty of the offence upon which the Legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration? The case of a right acquired under the Act is stronger. The 6 Geo. 4, c. 133, provides, that parties who hold such warrants shall be entitled to practise as apothecaries; and we can not engraft on the statute a new qualification, limiting that enactment. 15. Baron Parke, said: Then comes the question whether the privilege of practising given by that Stat. 6 Geo. 4, referred to in the replication, is one which continues notwithstanding the expiration of that statute. That depends on the construction of the temporary enactment. There is a difference between temporary statutes and statutes which are repealed, the latter (except so far as they relate to transaction already completed under them) become as if they had never existed, but with respect to the former, the extent of the restrictions imposed and the duration of the provisions, are matters of construction. 16. Baron Parke then, after discussing the interpretation of the Statute, continues, It is enough to say that we think those who were qualified by being assistant-surgeons in the navy before the 1st of August, 1926, retained that qualification notwithstanding the expiration of the statute. 17. Alderson, B. stated: Independently, however, of this consideration I agree in the opinion already expressed by my brother Parke. 17. Alderson, B. stated: Independently, however, of this consideration I agree in the opinion already expressed by my brother Parke. It seems lo me that those person who, during the year for which the last act was to continue in force, or previous to that period had obtained rights under it, had obtained rights which were not to cease by the determination of the act, any more than where a person commits an offence against an act of a temporary nature, the party who had disobeyed the act during its existence as a law is to become dispunishable on its ceasing to exist. 18. Rolfe B. remarked: (i) The only important question in this case is the last. The 6 Geo. 4, when it says that the act shall continue in force till the 1st of August next, does not mean that what is therein enacted would be of no force after that day; if it were so, the act might be productive of the greatest injustice.... (ii) Now the court would be reluctant to suppose that the legislature meant that a person authorised to practise during the year the Act was in force, should have to go back to a state of apprenticeship, in order to entitle him to continue his practice. I think that although in one sense this Act is not in force yet it is still permanent as to the rights acquired under it. 19. Section 5 of the Temporary Postponement of Execution of Decrees Act, 1937, clearly provides that in computing the period of limitation prescribed by the Indian Limitation Act, 1908, the period during which this Act shall remain in force shall be excluded. 20. It clearly contemplates that an action might be raised and should be railed after the Act had ceased to be in force and when the action is thus raised the Plaintiff should be entitled to exclude the time during which the Act was in force. The language of the; statute clearly points to the conclusion that the benefit given by Section 5 was to take effect after the Act had ceased to be in force and the Statute contemplated and provided that though it would cease to be in force rights arising thereunder would continue to be in operation. 21. The language of the; statute clearly points to the conclusion that the benefit given by Section 5 was to take effect after the Act had ceased to be in force and the Statute contemplated and provided that though it would cease to be in force rights arising thereunder would continue to be in operation. 21. Nor do we think it is the law that because an Act, temporary or permanent, is repealed by a new Act all rights and obligations arising thereunder disappear and the old Act is wiped out of the Statute book and is treated for all purposes as if it had never existed. Both in England and in India ample provision has been made by Legislative enactment to save vested rights and privileges from the effect of the repeal; in England by Section 38 of the Interpretation Act, 1889 and in India by the General Clauses Act, Central and Provincial of 1897 and of 1904 respectively. Section 6 of the U.P. General Clauses Act, 1 of 1904, is as follows: 6. Where any United Provinces Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; And any such remedy may be enforced and any such investigation or legal proceeding may be continued and concluded and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. 22. 22. It will be noticed that under Clause (b) of Section 6 of the U.P. General Clauses Act the repeal of an Act leaves unaffected the previous operation of any enactment so repealed or anything duly done or suffered thereunder, and by Clause (c) of the said section the repeal does not affect any right, privilege...acquired, accrued...under any enactment so repealed, and Clause (e) and the clause which follows (e) in Section 6 provides that this repeal shall not affect any remedy...and any such remedy may be enforced...as if the repealing Act had not been passed. 23. Section 6 of the General Clauses Act (X of 1897) is as follows: 6. Where this Act or any Act of the Governor General in Council or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forefeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed. 24. Section 6 of the General Clauses Act is in the same terms as Section 38, Clause 2 of the Interpretation Act 1889, but the Clause (e) of Section 6 of the U.P. General Clauses Act, 19(sic)4 is somewhat differently and less happily worded. 24. Section 6 of the General Clauses Act is in the same terms as Section 38, Clause 2 of the Interpretation Act 1889, but the Clause (e) of Section 6 of the U.P. General Clauses Act, 19(sic)4 is somewhat differently and less happily worded. This change in our opinion, in the U.P. Act does not serve any useful purpose and it only tends to create confusion, but for the purpose of points we are considering there is substantially no difference between the two clauses, Central and Provincial and in our opinion, they clearly provide that the remedy with regard to rights and privileges arising under a repealed Act can be enforced even after the repeal and to that extent it is to be deemed that the repeal had not taken place. 25. That this is the effect of the General Clauses Act upon a repealed law' hardly admits of any doubt. The principle of English Common Law which was stated in Maxwell on the interpretation of Statutes as follows was considered in an English case in relation to the Interpretation Act, 1889: Where an Act expired or was repealed, it was formerly considered, in the absence of provision to the contrary, as if it never existed, except as to matters and transactions past and closed. Where, therefore, a penal law is broken, the offender could not be punished under it, if it expired before he was convicted, although the prosecution was begun while the Act was still in force. 26. Avory, Shearman and Salter JJ. after explaining that the well known principle of English Common Law as stated above by Maxwell had been altered by the Interpretation Act, 18(sic)9, held that an offence committed under a repealed Act at the time when the repealed Act was in force could be proceeded with after the Act had ceased to be in force and a new Act had taken place of the repealed Act. 27. 27. The object of the Temporary Postponement of Execution of Decrees Act was to stay execution of decrees against agriculturists, to protect agriculturists from being harassed by suits based on loans and to encourage money-lenders not to embark upon un-necessary and fruitless litigation, the fruit of which is the form of execution of decrees they were prohibited to gather; and by Section 5 of Temporary Postponement of Execution of Decrees Act an assurance was given to money-lenders that limitation would be saved if they refrained from raising action during the time the Act remained in force. It was thus a privilege, a right conferred upon the creditors to avail themselves of an option not to enforce their, claim which had matured and upon which time was running. Such a right or privilege cannot be governed by same consideration which apply when a period of limitation given by an existing law is cut short by a new law of limitation. Interference with a right or privilege like this affects the previous operation of the enactment and something done or suffered thereunder within the meaning of Clause (b) of Section 6 of the U.P. General Clauses Act. 28. And a right or privilege like this partakes more of the nature of a vested right rather than of a matter affecting procedure and in our opinion it is fully protected by the provisions of the General Clauses Act. It will be an inconvenient state of law if persons who had given loan to agriculturists were under necessity to embark upon unnecessary and fruitless litigation during the time the Temporary Postponement of Execution of Decrees Act was in force. And it will be a lamentable state of law if relying upon the assurance given by the Statute they refrained from action, they now find that their claims are barred by limitation. 29. We hold that notwithstanding the expiration of the Temporary Postponement of Execution of Decrees Act, 1937, on December 31, 1940 and the repeal of the said Act by the U.P. Debt Redemption Act, 1940, on January 1, 1941, the creditor Radhey Lal was entitled to exclude the time from January 1, 1938, to December 31, 1940, in computing the period of limitation applicable to this claim and on this computation his claim was within time and this is our answer to the reference.