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1978 DIGILAW 281 (KER)

GEORGE v. ABRAHAM

1978-10-20

P.JANAKI AMMA

body1978
Judgment :- 1. The petitioner is the judgment-debtor in a suit for realisation of money. The decree debt is above Rs. 10,000/-. When execution was sought, he filed E. A. 4 of 1978 requesting the Court to make a reference under Order XLVI R.1 of the Code of Civil Procedure. The petitioner stated that his annual income is less than Rs. 1,000/-and that the debt stood extinguished under S.3 of Ordinance 1 of 1977. He contended that the subsequent enactment of Act 17 of 1977 could not revive a debt which stood extinguished and also that S.2(4)(i) of Act 17 of 1977 violated Art.14 of the Constitution in as much as it differentiated between debtors like him whose debt exceeded Rs. 3000/-and other debtors. He also contended that the above provision is violative of his fundamental right under Art.19(1)(g), 20 and 31 of the Constitution. The executing Court held without any discussion that the petition was not maintainable and dismissed the same. The revision petition is filed against the said order. 2. There is no doubt that the Court below should have passed a speaking order. The order that is now challenged does not show that the Court has applied its mind on the points involved. In such cases the proper thing would have been to remand the petition to the Court below with a direction to write a proper order. But since the revision petition has to fail on the merits, no purpose will be served if I follow the above procedure. That may only protract the proceedings. I shall, therefore, dispose of the petition on the merits. 3. The argument put forward on behalf of the petitioner is that the case falls under S.113 of the Code of Civil Procedure and the Court should have made a reference as contemplated in that provision. S.113 CPC. That may only protract the proceedings. I shall, therefore, dispose of the petition on the merits. 3. The argument put forward on behalf of the petitioner is that the case falls under S.113 of the Code of Civil Procedure and the Court should have made a reference as contemplated in that provision. S.113 CPC. reads: 'Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.' It is clear, therefore, that a reference ordinarily would lie only if the conditions and limitations prescribed under the Code are satisfied. Order XLVI R.1 deals with the conditions and limitations. The said provision reads: 'Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where in the execution of any such decree, any question of law of usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt and Court may, either of its own motion or on the application of any of the parties draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision of the High Court.' It is evident that the power under the above provision is discretionary and it is for the Court to decide whether it should make a reference to the High Court. But if a case involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case and the Court is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative and has not been so declared by the High Court or the Supreme Court, it is obligatory on the part of the Court to state a case setting out its opinion and the reasons therefor and refer the same for the opinion of the Court. 4. The Supreme Court had occasion to consider the scope of the proviso to S.113 CPC. in Ganga Pratap v. Allahabad Bank Ltd. (AIR. 1958 SC. 293). The respondent therein was a Scheduled Bank. The appellant contended that he was entitled to relief under the Uttar Pradesh Zamindar's Debt Reduction Act (U. P. XV of 1953) which reduced the amount recoverable on a debt as defined in the Act. The definition did not include a debt due to a scheduled bank. The appellant argued that the definition in so far as it excluded certain debts offended Art.14 of the Constitution and the provision excluding such debt should be struck down. The appellant moved for a reference under proviso to S.113 CPC. The Civil Judge took the view that the definition infringed Art.14 of the Constitution, but that it was not necessary for the disposal of the case to decide the question of invalidity of the provision because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest. No reference was, therefore, made under S.113 of the Code of Civil Procedure. The Supreme Court in appeal held that so as to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid and, therefore, it could not be said that it was not necessary for the disposal of the case to decide the question of the validity of the impugned part. The Supreme Court directed the High Court to withdraw the case and either dispose it of itself or determine the question of the validity of the definition of a debt in the Zamindar's Debt Reduction Act and return the case to the Civil Judge for disposal in accordance with its determination of the question. 5. In the instant case, the petitioner challenges the validity of S.2(4)(i) of Act 17 of 1977 which excludes persons from whom debt or debts exceeding three thousand rupees is or are due from the definition of debt on the ground that the said provision offends Art.14, 19(1)(g), 20 and 31 of the Constitution. If the said clauses are struck down any person whose annual income does not exceed Rs 3000/- from whom any debt is due would be a debtor. Therefore, the ratio of the decision in Ganga Pratap v. Allahabad Bank Ltd. (AIR. 1958 SC. 293) may perhaps be applicable to the instant case. But for a reference under S.113 of the Code of Civil Procedure, it is not enough that an issue regarding the constitutional validity of the Act or any provision therein is raised. A decision of the issue must be necessary for the disposal of the case. This is evident from the use of the word 'arises' in Order XLVI Rule I, which is in contra-distinction from the words 'is raised'. Unless it is satisfied that the determination of the question is necessary for the disposal of the case, the Court need not make a reference under proviso to S.113 of the CPC. The petitioner herein has not put forward a claim that if S.2(4)(i) of Act 17 of 1977 is struck down or ignored, he would be entitled to the benefits of the Act. The stand taken by him is that the debt stood discharged in view of S.3 of Ordinance 1 of 1977 and the subsequent enactment of Act 17 of 1977 would not revive the debt. For a decision on this point, a determination of the question of the validity of S.2(4)(i) of Act 17 of 1977 is unnecessary. 6. In this Court, the petitioner did not press the contention that his debt stood discharged by virtue of Ordinance 1 of 1977 and that it is not revived on the repeal of that Act. For a decision on this point, a determination of the question of the validity of S.2(4)(i) of Act 17 of 1977 is unnecessary. 6. In this Court, the petitioner did not press the contention that his debt stood discharged by virtue of Ordinance 1 of 1977 and that it is not revived on the repeal of that Act. Under S.1(3) of Act 17 of 1977, that Act is to be deemed to have come into force on the 13th of January, 1977, which corresponds to the date of commencement of Ordinance 1 of 1977. Ordinance 1 of 1977 was replaced by Ordinance 9 of 1977. S.13(1) of Act 17 of 1977 repealed Ordinance 9 of 1977. S.13(2) enacted that notwithstanding the repeal of Ordinance 9 of 1977, anything done or deemed to have been done or any action taken or deemed to have been taken under that Ordinance shall be deemed to have been done or taken under the Act. A Division Bench of this Court held in Ahamed v. Usha Trading Corporation (1978 KLT. 508) that the effect of the retrospective repeal and re-enactment is to create a legal fiction that Ordinance I of 1977 had never come into effect and that the provisions of Act 17 of 1977 were in force from 13-1-1977 onward. 7. In the face of the above decision, the petitioner's claim that the debt owed by him stood discharged under Ordinance 1 of 1977 would stand rejected. The revision petition is, therefore, without merits and it is dismissed. Dismissed.