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1959 DIGILAW 28 (MP)

Gyanchand Chhaganlal v. Mangilal Hira

1959-01-28

SHIV DAYAL SHRIVASTAVA

body1959
JUDGMENT Shiv Dayal Shrivastava, J. This appeal arises out of an execution case. In a suit instituted in the year 1944, a decree was passed in favour of the Appellant on September 30, 1948. Application for execution was made in the Court of Civil Judge Second Class, Dharampuri (District Dhar). Notice of the execution (Execution Case No. 59 of 1949) was served on July 12, 1949. The judgment-debtor did not appear and his agricultural land was attached. Thereafter, the decree was transferred to the Revenue Authorities for putting the attached land to sale. On March 11, 1955, the judgment-debtor, made an application to the executing Court at Dharampuri raising amongst others, the objection that no amount was recoverable from him by virtue of the Madhya Bharat Moneylenders Act, 1950. The executing Court held that the objections were barred on the principle of constructive res judicata. On appeal by the judgment-debtor, the learned Appellate Court held that the principle of constructive res judicata could not apply inasmuch as the Moneylenders Act came into force on September 1, 1950 and the notice of execution was served on the judgment-debtor on July 12, 1949. Then, examining the question of law, whether the said Moneylenders Act was applicable to the present case or not, the appellate Court answered it in the affirmative and remanded the case to the executing Court to decide all the objections of the judgment-debtor on merits. In this appeal, Shri Goyal, learned Counsel for the Appellant concedes that the principle of constructive res judicata does not apply here and the finding of the first Appellate Court is correct. Now the learned Counsel for both the parties agree that there is only one question for decision in this second appeal and it is this: Whether the Moneylenders Act of 1950 can be applied to the present case so as to give relief to the judgment-debtor? The first Appellate Court has relied on Section 15 of that Act. Learned Counsel for the Appellant contends that under Section 14 of the said Act, these proceedings are saved from the operation of that Act. I have given the relevant dates at the outset from which it is clear that the decree was passed in 1948 before the commencement of the Moneylenders Act. Now, Section 14 of that Act runs thus: 14. I have given the relevant dates at the outset from which it is clear that the decree was passed in 1948 before the commencement of the Moneylenders Act. Now, Section 14 of that Act runs thus: 14. The provisions of this Act shall not apply to any loan made before this Act comes into force except such loans as were advanced after the Money-Lenders Act, Gwalior State, Samvat 2003, the Indore Money-Lenders Act No. V of 1938, or the Sahukar Sambandhi Vidhan, Dewas Junior, 1943 or any similar enactment or any other Covenanting States of Gwalior, Indore or Dewas Junior or such other Covenanting States respectively; Provided that, if any fresh transaction in respect of a loan made before this Act comes into force, is made after this Act comes into force, such transaction shall be subject to the provisions of this Act. The language of the above saving provision is free from any ambiguity or doubt. It is an admitted fact that in the former Dhar State, where the loan in question in the suit was advanced, there was no Moneylenders Act. It may: be recalled that the suit for the recovery of the loan was instituted in the year 1944 and it is also conceded that there was no fresh transaction in respect of that loan after the Moneylenders Act of 1950 came into force. That being so, the decree under execution is exempted from the application of any of the provisions of the Act. Shri S.L. Garg, learned Counsel for the Respondent has referred to me a decision of the Bombay High Court reported in A.I.R. 1953 Bom 420. That case is clearly distinguishable inasmuch as I do not find any provision in the Bombay Act corresponding to Section 14 of the Madhya Bharat Act. According to Shri Garg, Section 15 overrides Section 14 because of the non-obstante clause and further because this section does not precede Section 14 but follows it. In my opinion, this argument is without substance. In a very clear language Section 14 controls all the provisions of the Act and Section 15 can be no exception to it. It is of no effect that Section 14 was not placed as the last section in the Act. Section 14 does not limit itself to "the foregoing provisions". In my opinion, this argument is without substance. In a very clear language Section 14 controls all the provisions of the Act and Section 15 can be no exception to it. It is of no effect that Section 14 was not placed as the last section in the Act. Section 14 does not limit itself to "the foregoing provisions". The words "foregoing provisions" are not there and we cannot add them while reasonably construing the provision. Two decisions of the Assam High Court support my view. They are reported in A.I.R. 1950 Assa 161 : A.I.R. 1951 Assa 61. For these reasons, I hold that the Moneylenders Act of 1950 has no application to the present case and on this ground the judgment of the lower Appellate Court must be set aside. No other point has been pressed before me. This appeal is allowed, the order dated April 17, 1956 passed by the Additional District Judge, Dhar is set aside and the operative portion of the judgment in the order passed by the Civil Judge, Second Class, Dharampuri on May 6, 1955 is restored. There shall be no order as to costs. Appeal allowed