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1978 DIGILAW 23 (KER)

AHAMED v. USHA TRADING CORPORATION

1978-01-23

K.K.NARENDRAN, V.BALAKRISHNA ERADI

body1978
Judgment :- 1. These two Civil Revision Petitions arise out of execution proceedings in two suits where money decrees have been passed against the respondents, the judgment debtors Before the executing court the judgment debtors contended that the decree debts had become discharged under Ordinance No.1 of 1977. That claim was rejected by the executing court on the ground that the Ordinance had been repealed by Act 17 of 1977 and that under the terms of Act 17 of 1977 the judgment debtors are not persons entitled to the benefits of S.3 of that Act. The judgment debtors have come up to this Court with these Civil Revision Petitions contending that the said view taken by the executing court is incorrect and illegal. 2. The Kerala Debt Relief Ordinance, 1977 Ordinance No.1 of 1977 was promulgated by the Governor on 1311977 and it was published in the Kerala Gazette Extra-ordinary No 21 on the same date. S.3 of the Ordinance provided inter alia that notwithstanding anything contained in any other law for the time being in force, or in any contract or in any decree or order of court, with effect on and from the commencement of the said Ordinance, every debt and the interest thereon payable by a debtor to a creditor shall be deemed to be wholly discharged, that no civil court shall entertain any suitor other proceeding against a debtor for the recovery of any debt or part of a debt or any interest thereon and that all suits and other proceedings including appeals, revision petitions, applications for review, proceedings for attachment and execution proceedings pending on the date of commencement of the Ordinance against any debtor for the recovery of any debt shall abate. The expression "debtor" was defined in clause (6) of S.2 as meaning "any person whose annual income does not exceed two thousand and four hundred rupees, from whom any debt is due and includes (a) landless labourer; (b) an artisan; and (c) a kudikidappukaran." Certain categories of persons are, however, excluded from the scope of the said definition by sub-clauses (i) to (iv) but it is unnecessary for our present purpose to set out the contents of those sub-clauses. 3. Ordinance 1 of 1977 was later repealed and replaced by the Kerala Debt Relief Ordinance No. 9 of 1977 promulgated by the Governor on 6th May 1977. 3. Ordinance 1 of 1977 was later repealed and replaced by the Kerala Debt Relief Ordinance No. 9 of 1977 promulgated by the Governor on 6th May 1977. The provisions of this Ordinance were identical with those contained in Ordinance No 1 of 1977. Subsequently the Legislature enacted the Kerala Debt Relief Act 1977 which was published in the Kerala Gazette dated 12-8-1977. S.1 (3) of the said Act states that the provisions of the Act are to be deemed to have come into force on 13th day of January, 1977. By S 13 of the Act the Kerala Debt Relief Ordinance, 1977(9 of 1977) is repealed. S.3 of the Act corresponds to S.3 of the repealed Ordinance and contains substantially identical terms. But the definition of the expression "debtor" contained in clause (4) of S.2 of the Act is materially different from the corresponding definition that was contained in clause (6) of S.2 of the Ordinance. Under S.2 (6) of the Ordinance any person whose annual income did not exceed two thousand and four hundred rupees, from whom any debt is due was to be regarded as a "debtor" so lung as he did not fall within the excepted categories mentioned in sub-clauses (i) to (iii). Under Clause.4 of S.2 of the Act the expression "debtor" has been defined as follows: "(4) "debtor" means any person whose annual income does not exceed three thousand rupees, from whom any debt is due, but does not include (0 any person from whom debt or debts exceeding three thousand rupees (excluding interest) is or are due; (ii) a firm registered under the Indian Partnership Act, 1932, or a company as defined in the Companies Act, 1956, or a corporation formed in pursuance of an Act of Parliament of the United Kingdom or of any special Indian Law. Explanation For the purposes of this clause, the term "person" shall include a family." In order to come within the definition of "debtor" under the Act the debtor debts due by a person should not exceed Rs. 3000/- (excluding interest). Since there was no such restriction in the prior Ordinances, several persons who were eligible for relief under S.3 of the Ordinance 1 of 1977 as well as under Ordinance 9 of 1977 are now excluded from the purview of the benefit conferred by the Act. 3000/- (excluding interest). Since there was no such restriction in the prior Ordinances, several persons who were eligible for relief under S.3 of the Ordinance 1 of 1977 as well as under Ordinance 9 of 1977 are now excluded from the purview of the benefit conferred by the Act. The revision petitioners in both these cases fall within that category. It is contended however by them that by virtue of provisions of S 3 of Ordinance 1 of 1977 the debts due by the decree-holders had automatically become discharged when the provisions of that Ordinance came into force on 13-1-1977. According to the Revision petitioners the mere fact that the said Ordinance has been subsequently repealed will not entitle the decree-holder to proceed against them for the recovery of the debts which had already become wiped off and hence the lower court had acted without jurisdiction in directing execution to proceed against the revision petitioners. 4. We fine no substance in the above contention. By S.13 of Act 17 of 1977, Ordinance 9 of 1977, which had repealed and replaced Ordinance 1 of 1977, was repealed. The provisions of Act P of 1977 inclusive of the repealing provision contained in S.13 have been given retrospective effect from 13th January 1977, which is the date on which Ordinance 1 of 1977 had come into force. The effect of this retrospective repeal and re-enactment is to create a legal fiction that Ordinance 1 of 1977 had never come into effect and that the provisions of Act 17 of 1977 were in force from 13-1-1977 onwards. No claim for relief can therefore be now founded on the provisions contained in Ordinance 1 of 1977. The lower court was therefore perfectly right in overruling the contention put forward by the present revision petitioners and directing the execution to proceed against them since they are not "debtors" as defined in Act 17 of 1977. The revision petitions accordingly fall and are dismissed. The parties will bear their respective costs.