1939 (5) TMI 13 - Other - Indian Laws

1939 (4) TMI 22 - Other

Issues Involved:
1. Constitutionality of Section 16, Bihar Moneylenders Act, 1938.
2. Repugnancy of Section 16 and 17, Bihar Moneylenders Act, 1938 to existing Indian law.
3. Retrospective application of the Bihar Moneylenders (Regulation of Transactions) Act, 1939.
4. Jurisdiction and powers of the Federal Court in appellate matters.
5. Finality of the High Court's order under Section 205, Government of India Act, 1935.
6. Validity of the High Court's interpretation of Sections 16 and 17, Bihar Moneylenders Act, 1938.
7. Impact of new legislation on pending appeals.

Detailed Analysis:

1. Constitutionality of Section 16, Bihar Moneylenders Act, 1938:
The primary issue was whether Section 16 of the Bihar Moneylenders Act, 1938, was void for being repugnant to a provision of an "existing Indian law" under Section 107 of the Constitution Act. The Bihar Act, which came into force on 15th July 1938, provided for the court to estimate the value of the property sufficient to satisfy a decree when executing a sale.

2. Repugnancy of Section 16 and 17, Bihar Moneylenders Act, 1938 to existing Indian law:
The "existing Indian law" in question was a proviso added by the Patna High Court to Order 21, Rule 66, Civil Procedure Code (CPC), effective from 1st March 1936, stating that no estimate of the property value should be included in the sale proclamation other than those provided by the decree-holder and judgment-debtor. The High Court had earlier ruled that Sections 16 and 17 of the Bihar Act were void due to repugnancy to this proviso.

3. Retrospective application of the Bihar Moneylenders (Regulation of Transactions) Act, 1939:
The Bihar Legislature repealed Sections 16 and 17 of the 1938 Act and re-enacted them in the Bihar Moneylenders (Regulation of Transactions) Act, 1939, which came into force on 3rd May 1939. The new Act was reserved for and received the assent of the Governor-General, making it immune from challenges based on repugnancy to existing Indian law. The court held that Sections 13 and 14 of the new Act were retrospective, applying to proceedings pending at the time the Act came into force.

4. Jurisdiction and powers of the Federal Court in appellate matters:
The Federal Court considered whether it could remit the case to the High Court with a declaration recognizing the current state of the law. The court concluded that Sections 205 and 209 (1) of the Constitution Act granted it the power to substitute the High Court's judgment with one that acknowledges the new legal provisions.

5. Finality of the High Court's order under Section 205, Government of India Act, 1935:
The court debated whether the High Court's order was a "final order" for the purposes of Section 205. The majority opinion held that the High Court's dismissal of the appeal, which denied the appellant the substantive rights conferred by Sections 16 and 17, constituted a final order. However, there was a dissenting opinion that no appeal lay to the Federal Court as the order was interlocutory.

6. Validity of the High Court's interpretation of Sections 16 and 17, Bihar Moneylenders Act, 1938:
The High Court had interpreted Sections 16 and 17 as requiring the court to estimate and include the property value in the sale proclamation, which was deemed repugnant to Order 21, Rule 66, CPC. The Federal Court, however, found that the new Section 13 (replacing old Section 16) was not repugnant to the amended Rule 66, as it only required the court to estimate the value without mandating its inclusion in the proclamation.

7. Impact of new legislation on pending appeals:
The Federal Court held that the new Bihar Moneylenders Act, 1939, which had received the Governor-General's assent, must be considered in the pending appeal. The court decided to remit the case to the High Court, directing it to apply the provisions of the new Act, thereby rendering the discussion of the old Act's validity academic.

Conclusion:
The Federal Court remitted the case to the High Court with instructions to discharge the previous orders and allow the appellant to file an application under Section 13 of the new Bihar Moneylenders Act, 1939. The court emphasized that the new Act's provisions should be applied to the pending proceedings, thereby resolving the issues raised in the appeal. There was no order as to costs.

← Previous Next →