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TMI Blog1939 (5) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... case should include only so much of the property of the judgment debtor as would in the opinion of the Court produce sufficient to satisfy the decree; and (b) that that property should not be sold at a lower price than the price specified in the proclamation. There are provisos to the Section to which it is not for the moment necessary to refer. 2. The existing Indian law to which these provisions were said to be repugnant is a proviso which the Patna High Court, under its rule making power, had added to Order 21, Rule 66, Civil P. C. This was to the effect that no estimate of the value of the property should be inserted in the sale proclamation other than estimates, if any, made by the decree holder and judgment-debtor respectively, accompanied by a statement that the Court did not vouch for the accuracy of either. The proviso had come into force on 1st March 1936. 3. The appellant, against whom a mortgage decree for more than a lakh of rupees had been passed, applied on 15th August 1938 for an order under Sections 16 and 17, Bihar Act, for the purpose of restricting the execution sale to such portion of the mortgaged property as might be considered by the Court sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 13 and 14 of the new Bihar Act are retrospective in the sense that they apply to proceedings pending at the time when the Act came into force, for they refer to applications made and decrees passed before or after the commencement of this Act. 5. Counsel for the respondent did not and could not contend otherwise; but he made a half-hearted attempt to argue that the Act was not beyond challenge, because while it purported to be made in the exercise of the powers conferred on the Provincial: Legislature by the Provincial Legislative List in Schedule. 7 of the Constitution Act, it travelled nevertheless into subjects falling within the Concurrent Legislative List in that Schedule. There appears to us to be no substance in this contention. Altheugh the Act purports to regulate the transactions of money-lenders, it does not in terms profess to exercise powers only belonging to the Provincial Legislature under the Provincial Legislative List. In these circumstances, the new Act could only 'be challenged on the ground that it is repugnant to an existing Indian law; and, as we have pointed out above, the reservation of the Act for the consideration of the Governor-General a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been issued before 3rd May 1939, the day on which the Act came into Force. On the natural construction of Section 13 of the Act the judgment-debtor can, if he so desires, file an application today for an order under that Section; and, that being the legal position, there is still less reason for declining to take the Section into account in dealing with the present appeal. We are of opinion therefore that the passing of the new Act has made it unnecessary to consider any of the questions discussed by the High Court, and that our judgment must be in the appellant's favour for the reasons which we have given. 8. Our brother Sulaiman, Though otherwise in agreement with us, holds that no appeal lies to this Court in the present case. We are unable to concur in that opinion. We think that the order of the High Court in this case must be treated as a final order for the purposes of Section 205, Constitution Act. If the appellant's application related only to the settlement of the proclamation it is true that an order dealing with that application could not be regarded as determining the rights of the parties in any measure so as to make it a final order. A question of this k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om what is available to him under Order 21, Rule 90, Civil P C because under the latter provision he cannot claim relief merely on the ground of inadequacy of price, but only by proving that serious inadequacy of price has resulted from fraud or material irregularity in publishing or conducting the sale. 9. The case will be remitted to the High Court with a direction to discharge their order of 22nd September 1938, and the lower Court's order of 22nd August 1938, and to give liberty to the appellant to file an application under Section 13, Bihar Moneylenders (Regulation of Transactions) Act, 1939. There will be no order as to costs. Sulaiman J. 10. The application made to the Subordinate Judge under Sections 16 and 17, Bihar Moneylenders Act (No. 3 of 1938) had prayed for making an estimate of the revalue of the mortgaged property and of such portion of it as might by its sale be sufficient to satisfy the decree and to order only that portion to be included in the sale proclamation. 11. The learned Subordinate Judge also took the application to be one ' praying for fixing a valuation of the property in execution and for issue of sale proclamation in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the maintainability of the appeal. Varadachariar J. held that the word 'judgment' is comprehensive enough to include a criminal judgment, and proceeded to deal with the case on the assumption that the appeal was competent. On the other hand, I had occasion to refer at some length to the meaning of the word 'judgment' as used in the Indian Code of Civil Procedure, in the Letters Patent and also as used in England, and referred to several Full Bench decisions of the Indian High Courts and some decisions of their Lordships of the Privy Council. I pointed out that in England the term 'judgment' in the Queen's Bench Division was equivalent to decree in Equity practice, and 'a judgment is a decision obtained in an action and any other decision is an order'. Now, in legal language, and in Acts of Parliament, as well as with regard to the right of the parties, there is a well known distinction between a 'judgment' and an 'order'. No doubt the orders under the Judicature Act provide that every order may be enforced in the same manner as a judgment, but still judgments and orders are kept entirely distinct. It is not said that the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm 'judgment' in England includes decree, and decree must therefore involve a determination of the? rights of the parties. Even in India decree is defined in Section 2 (2), Civil P C as: The formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. 18. The determination of any matter within; Section 47, Civil P C is no doubt included in that term, but Section 47 deals with the determination of questions arising between the parties relating to the execution, discharge or satisfaction of the decree, and not to the particular mode of executing the decree which may be ordered. That is dealt with in the Rules contained in 21. Rule 66 of that Order does not in so many terms refer to the determination of any question arising between the parties to the proceedings but lays down how the Court is to cause a proclamation of the intended sale to be made where any property is ordered to be sold by public auction, and Sub-section (2) provides what particulars should be specified in the proclamation of sale, and these include everyth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent Madras cases, Kaviribai Ammal v. B. Mehta and Sons (1924) HAIR Mad 234, Avudainayanappa Pillai v. Sundaranandam Pillai (1924) HAIR Mad 767 and Meenakahisundaram Pillai v. Chokkalinga Pathan (1929) 16 A I R Mad 506 In the second case it was laid down that an order fixing a price to be entered in the proclamation of sale is not a judgment within the meaning of Clause 15 of the Letters Patent. The same view has prevailed in Allahabad: Meenakahisundaram Pillai v. Chokkalinga Pathan (1929) 16 A I R Mad 506, Hira Lal v. Tikam Singh (1926) 13 A I R All 401, Muhammad Zakaria v. Kishun Narain (1926) 13 A I R All 268, Qaiser Beg v. Sheo Shanker Das (1932) 19 AIB All 85, Nathu Lal v. Yashoda Devi (1932) 19 A I R All 136 and Ram Oharan Sahu v. Jumna Prasad Sahu (1932) 19 A I R All 696 In this last case it was held that an order fixing the valuation for the purposes of the sale proclamation is not a decree within the meaning of Section 47, Civil P C A similar view has been expressed in other High Courts: Krishnarao Ambadas v. Krishnarao Raghunath (1928) 15 A I R Bom 245, Devendra Nath v. Kailash Chandra (1925) 12 A I R Oal 318, Basanta Kumar v. Baikunta Nath (1926) 13 A I R Cal 610, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cter. There is no final decision yet, as even after the disposal of the case by the High Court, the proceeding is still a live proceeding and will continue. 22. Even if the stage contemplated by Section 17 had been reached, the proclamation of sale would have included only so much of the property of the judgment-debtor the proceeds of the sale of which the Court considered would be sufficient to satisfy the decree. The further provision that such property shall not be sold at a price lower than the price specified in the sale, proclamation would be a direction to the sale officer not to accept any bid which is lower 1939 F C lla/4 than the price specified. This at best is fixing a minimum price which the sale officer should accept. It does not prevent the acceptance of a higher offer; nor does it expressly prevent the Court from revaluing the property in case no bids up to the minimum are received. The two provisos added to the Section refer to matters relating to the portion of the property to be sold, with which we are not concerned in this appeal. The mere inclusion of the whole or a part of the property in the proclamation of sale would also not be regarded as any final adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court is calculated to mislead possible bidders and would be wrong, and the Court should not insert in a sale proclamation the valuation assessed by the decree-holder or the judgment-debtor: Raghunath Singh v. Hazari Sahu (1917) 4 A I R Pat 381, Beni Prasad v. Edal Singh (1919) 6 A I R Pat 373, and Damrupat v. Rameshar (1923) 10 A I R Pat 445, Later the Patna High Court changed its policy, and by an amendment of the rule, which came into force on 1st March 1936, provided that : No estimate of the value of the property, other than These, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does not vouch for the acouracy of either shall be inserted in the sale proclamation. 25. The prohibition is obviously deliberate and it casts an obligation on an execution Court to see that no other estimate, nor even that made by itself, is inserted in the sale proclamation, and enjoins upon the Court to notify therein that the Court does not vouch for the accuracy of either estimate. 26. The Moneylenders Act: With the professed object of regulating money lending transactions and granting relief to debtors, the Bihar Legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, and to sell the property only if the price fetched is according to the value fixed by them, unless some other considerations arise. 30. They accordingly remarked that they were clearly of opinion that Section 16 which must be read with Section 17, was repugnant to Order 21, Rule 66, Civil P C Following their previous ruling they held in the present case also that Section 16 of the Act was on account of its repugnancy, void. 31. The New Act: The Bihar Act of 1938 had been passed with the assent of the Governor of the Province only. The Bihar Legislature has passed a fresh Moneylenders' Act (Act No. 7 of 1939), which was reserved for the assent of the Governor-General, and it came into force on 3rd May 1939 during the tendency of this appeal. The provisions of old Sections 16 and 17 have been reproduced verbatim in Sections 13 and 14 with a few additions, mainly to make the Sections retrospective. I prefer to base my opinion that the High Court's view cannot be accepted on a two fold ground (1) because the provisions of the old Section 16 corresponding to the new Section 13 are not in fact repugnant to Order 21, Rule 66, Civil P C as amended by the Patna High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other; and care should be taken to see whether the two do not really operate in different fields without encroachment. Further repugnancy must exist in fact, and not depend merely on a possibility : Their Lordships one discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibitions of the Canadian Act are not and may never be in force: Att.-Gen. for Ontario v. Att.-Gen. for the Dominion of Canada (1896) A.C. 348, at pages 369-70. 36. It is a well established principle that if the invalid part of an Act is really separate in its operation from the other parts, and the rest are not inseverably connected with it, then only such part is invalid, unless, of course, the whole object of the Act would be frustrated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be implied; or unless there is a necessary inconsistency in the two Acts standing together. 40. The question has been discussed in two Australian cases more recently. In Att.-Gen. for Queensland v. Att.-Gen. for Commonwealth, 20 C L R 148. at pp. 167-168 Higgins J. said : What does 'repugnant' mean ? I am strongly inclined to think that no colonial Act can be repugnant to an Act of the Parliament of Great Britain unless it involves, either directly or ultimately, a contradictory proposition probably, contradictory duties or contradictory rights. 41. Again, Clyde Engineering Co. Ltd. v. Cowburn, 37 C L R 466. When is a law 'inconsistent' with another law ? Etymologically, I presume that things are inconsistent when they cannot stand together at the same time; and one law is inconsistent with another law when the command or power or other provision in one law conflicts directly with the command or power or provision in the other. Where two Legislatures operate over the same territory and come into collision, it is necessary that one should prevail; but the necessity is confined to actual collision, as when one Legislature says 'do' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fix the order of the sale of the various items so as to adjust equities. The estimation can be made known in ways other than by merely entering if in the proclamation of sale. The High Court has not taken away the discretion of the Courts to divide the property into lots under Order 21, Rule 67 (3) or of the sale officers under Rule 69 to adjourn the sale on the ground of gross inadequacy of the bids, if the estimation of the value is brought to their notice otherwise (E.g., by production of a certified copy of the order). It would be of help later to the Court itself in deciding whether there has been any substantial injury caused in case any material irregularity or fraud was com minted in publishing or conducting the sale. It follows that although the new Section 14 may, to some extent, be dependent on the new Section 13, as the price can be entered in the sale proclamation only after it has been 'ascertained by the Court, Section 13 in itself is by no means inseparably connected with Section 14, and can indeed stand alone by itself. The estimation of the price is one thing, and its entry in the proclamation of sale is quite another thing. The two are distinct and can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was right when it was given. But their Lordships took care to observe at p. 391 that the objection of want of administration is one of substance and the appellant's case did not fail by reason only that letters of administration to the intestate's estate have not been granted. 47. Their Lordships of the Privy Council in a recent case in 15 Pat 268 did take into consideration against the appellant a new Act which was passed during the tendency of the Privy Council appeal, by which the appellant's rights had been taken away. Their Lordships on the basis of the new enactment dismissed the appeal. Although that was a converse case, the principle undoubtedly applies. Accordingly there seems to be no good ground why the Federal Court may not, if it so thinks fit, dispose of the appeal on the basis of the new enactment. As the Patna Rule came into force in 1936 and therefore did not exist at the time of the passing of the Act, it cannot be regarded as having been included in the Code of Civil Procedure existing at the time (Entry 4 of List 3). But the amendment of Order 21, Rule 66 was certainly a matter of civil procedure. The rule made by the High Court, under the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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