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TMI Blog1961 (9) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... l changes, the assets and liabilities of the former Bikaner State devolved on the State of Rajasthan under Article 295 of the Constitution and the State of Rajasthan applied for enforcement of the aforesaid decree against the judgment-debtor in this Court on the 13th of July 1953 and it was sent to the District Judge, Bikaner, for execution. Later on, by the order of this Court dated the 4th of November 1955, the case was transferred to the District Judge, Jhunjhunu for execution in accordance with law. From that court it was transferred to the Civil Judge's Court. In that court an objection application under Section 47, C.P.C. was filed by the judgment-debtor raising various pleas against execution of the decree, one of which was that the execution application was barred by time. The learned Civil Judge decided this question first and held that the application for enforcement of the decree was barred by time and dismissed it and against that order this appeal has been filed by the State. 3. In order to appreciate the contentions of the parties it is necessary to refer to the provisions of law of limitation bearing on this point. At the time when the decree was passed, the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Notwithstanding anything contained in Article 149 of the First Schedule to the Indian Act, any suit by or on behalf of the Government in respect of which the cause of action had arisen before the date of the commencement of this Ordinance may be instituted within the period of twelve years next after such date or within the period prescribed by the said Article, whichever expires later. Section 11 laid down a rule of interpretation for the Rajasthan Ordinance and it is as follows : Rule of construction.--Notwithstanding the fact that this Ordinance makes no provision or makes insufficient provision in any respect for the adaptation of the Indian Act to Rajasthan, any Court, Tribunal or authority, when required to administer the provisions thereof in Rajasthan, may construe the same mutatis mutandis subject to such further adaptations and modifications not affecting the substance as may be necessary and proper in the circumstances . Section 13 made the provisions of the General Clauses Act, 1897, of the Central Legislature applicable to the said Ordinance and the Indian Act in the same manner as they applied to a Central Act of Indian Legislature. 4. The Rajasthan O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for execution which was disposed of on the 27th of February, 1942. 6. In this appeal it has been urged on behalf of the decree-holder that the ruler of the former State of Bikaner enjoyed sovereign powers in all matters and constitutionally he was the king within the domain of the former State of Bikaner enjoying untrammelled powers of legislation and of issuing royal proclamations, letters patent and charters which acquired the force of law as and when they were issued. It is also pointed out that the High Court of Bikaner was established by the proclamation dated the 3rd of May 1922 by His Highness Maharaja Ganga Singhji of Bikaner. Later on a fresh proclamation was issued on the 28th of August 1940 revoking the proclamation dated the 3rd of May, 1922 and making some changes in the constitution of the High Court. After the integration of the former State of Bikaner, His Highness Sri Sardui Singhji, the then ruler of Bikaner, issued another proclamation on the 28th of February, 1948 making further changes in the constitution of the said High Court. It is urged that these proclamations are in the nature of letters patent and are also drawn up on the lines of letters pate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proclamation of His Highness of Bikaner He has also tried to support this part of his case on the ground that the Rajasthan Ordinance expressly omitted Article 183 for the specific reason that it had no applicability to the State of Rajasthan when it was enacted there being no High Court for the State of Rajasthan established by a Royal Charter. He has urged that Article 183 has re-appeared when the Indian Limitation Act was brought into force by Act No. 3 61 1951 for the reason that by that time the decrees of the chartered High Court could be executed by courts in Rajasthan. He has contended that after the repeal of the Bikaner Limitation Act, Article 165 could not be applied for enforcement of the decree passed by the former High Court of Bikaner. In this connection he has urged that it was a well established proposition that the law of limitation was a procedural law and the law in force at the time when the suit or application was filed is to govern all proceedings taken thereafter and not the repealed provisions of any other law. He has also contended that Section 11 of the Ordinance cannot empower a court of law to make a change in the substantive provision of law and that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed an application for the enforcement of the decree as the decree was passed by the former High Court of Bikaner in exercise of its original civil jurisdiction. The Rajasthan Ordinance came into force without providing any time between the dates of its enactment and coming into force. By Section 12 it repealed the Bikaner Limitation Act. It retained Article 182 in its present form while it omitted Article 183. Now it may be pointed out that Article 182 has also reference to Article 183 but this reference to Article 183 in Article 182 was not omitted. This may be taken to be an instance of bad draftsmanship and no special inference for or against may be drawn on account of this mistake. Section 12(2) and Section 9 contain provisions which are in the nature of savings to Section 12(1). The question that arises is whether it would be proper for a court of law to import any further saving in the Ordinance on the rules of interpretation laid down in Sections 11, 12 and 13 or on the general principles of interpretation and hold that right of the decree-holder to enforce his decree continued to be governed by Article 165 of the Bikaner Limitation Act not by Article 182 of the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed, it ceases to be a statute of mere procedure and serves to destroy pre-existing and enforceable rights. Under circumstances like these, the Court, when invited to hold that the new statute has retrospective operation, will struggle against the acceptance of such interpretation, unless there is the clearest indication that the Legislature intended to destroy existing rights without notice and thus to penalise innocent litigants . A Full Bench of this Court considered this aspect of the matter in Jethmal v. Ambsingh, ILR (1955) Raj 334 at p. 362: (AIR 1955 Raj 97 at p. 106). Modi, J. took the view in consonance with the observations of Mookerjee, J. Wanchoo, C.J. also expressed the same view and observed, as follows : It is only in rare cases that the law shortening the period of limitation neither provides a saving clause, nor is there an interval between the publication of the law, and its coming into force. Where this happens it has generally been held by the courts that suits or applications, which are barred before the new law comes into force, are governed by the old law of limitation, for the new law, under these circumstances, does not remain a mere procedura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising his right to bring a suit which he had under the repealed Act. 12. On a survey of the authorities referred to above, I am of the view that it is not always true to say that the law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the right. It is a well settled proposition of law that the new law of limitation would not revive a barred right. Similarly, it may, be taken to be equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a court of law. The law may be taken to be more accurately stated in the following passage in Corpus Juris--quoted in the 'Interpretation of Statutes' by Bindra--1961 Third Edition, on page 586: While it has been said that statutes relating to remethes or procedure may be given a retroactive operation, a more accurate statement of the principle intended is that, unless expressly prohibited by statute, and in the absence of directions to the contrary, or unless in doing so some contract obligation is violated or some vested right divested, statutes merely affecting the remedy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be affected adversely to him unless there is a different intention. For the present we are concerned with a case where there is no gap of time between the enactment of the new law of limitation and its coming into force. If there is some gap of time, a question may arise whether a different intention as is mentioned in the opening part of Section 6 is discernible on account of that circumstance. I shall take up that question into consideration at a later stage but when there is no gap of time between the date of enactment and the date of corning into force of the new law of limitation nullifying the old law on a particular subject, I cannot find any ground to say that the right of party to enforce his claim or execute his decree during the old period of limitation is affected by the impact of the new law. In such a case I feel justified in taking the view that the foregoing conclusion to which I have arrived by applying the general principle of interpretation also flows directly from Section 13 of the Ordinance which has made the General Clauses Act, 1897 of the Central Legislature applicable to the Ordinance. In this connection, I may observe that I am reluctant to draw any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be governed by the old law if they were barred at the time of the commencement of the Ordinance by applying its provisions. This argument may find further support from the fact that Section 9(b) also provides for applications and other proceedings, and not only for suits. After giving my earnest consideration to these two lines of arguments, I consider it proper to take the view that the enactment of Sections 9 and 11, the first making special provision for certain suits, etc., and the second empowering the court to make suitable adaptations and modifications to relieve injustice, does not necessarily lead to the inference that the maker of the Rajasthan Ordinance intended to lay down that the said Ordinance should operate retrospectively to the extent that the application for execution which was within limitation under the repealed law at the time of the commencement of the Ordinance should become barred under the Ordinance by applying the provisions of the Ordinance to such application and then the court is to relieve this injustice by making adaptation in the said Ordinance under Section 11, When the language of an enactment does not expressly provide for retrospective o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int. This, however, would mean re-enactment of Article 183 of the Indian Limitation Act in a modified form by virtue of the power vested in a court of law under Section 11. It is true that Article 183 was omitted by Section 4 of the Rajasthan Ordinance. But this omission in my view was due to a lapse on the part of authority making the Ordinance. It is contended that this would mean making a modification affecting the substance of the Ordinance which is not permissible under Section 11. Section 11 contemplates supplying omissions in case the courts are of the view that there is insufficient provision in the Ordinance on a particular point. I would not hesitate to rectify the mistake on the part of the Legislative authority in the manner pointed out above. However, I need not go so far as in my humble opinion on a proper construction of all the provisions of the Ordinance, the application of the decree-holder for enforcement of the decree continued to be governed by Article 165 of the Bikaner Limitation Act in spite of its repeal and was not governed by Article 182 of the Indian Limitation Act which was brought in force with modification by the Ordinance. 16. This continued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive States in Rajputana, Maharajah Ganga Singh of Bikaner, who was an enlightened ruler, established first a Chief Court and later on a High Court in the former Bikaner State by proclamations to which reference has been made in the opening part of the judgment. These proclamations run on the same lines as the letters patent of the various High Courts established in the then British India by letters patent by the Crown. Later on after independence in the year 1948 another proclamation was issued by his son. 19. The rulers of the former State of Bikaner had all the attributes of a king so far as the territory of Bikaner State was concerned. It cannot also be denied that their proclamations had the effect of law. The question, therefore, is that today when we apply Article 183 under altogether changed political set-up, would it be worthwhile to construe the words 'Royal Charter' in the same sense in which it was intended to be construed when Article 183 was enacted and construing thus to hold that Article 183 is limited to the decrees of the chartered High Courts in the former British India and could not apply to a decree of the former Bikaner High Court established by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed in due form, granting or guaranteeing rights, franchises or privileges.'' If for a moment I brush aside the historical aspect of the matter, 'Royal Charter' in Article 183 is perfectly capable of application to a written document delivered by the sovereign of a State establishing a High Court. The rulers of the former State of Bikaner had all the attributes of a king in the constitutional sense and had full power to establish a High Court. No other authority, except the ruler, could do so. It has been argued that the former ruler of the State of Bikaner could not claim royalty inasmuch as there was a paramount power above him. Without entering into a detailed discussion on this point, I may point out that the former rulers of Bikaner State enjoyed full powers in the internal administration of the State. In Ameer-un-Nisa Begum v. Mahboob Begum, AIR 1955 SC 352 at p. 359, their Lordships of the Supreme Court observed, as follows while discussing the meaning and effect to be given to the various 'Firmans' of the Nizam of Hyderabad : It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adopting the rule of interpretation laid down in Section 4 in holding that a High Court established by a royal proclamation in the former State of Bikaner must be taken to be established by a Royal Charter. 24. The same result follows if we examine the matter from another aspect. At the time the Part B States (Laws) Act was extended to the Part B States, it cannot be said that the Parliament took into consideration every piece of legislation bearing on the law of limitation prevalent in all the Part B States but it clearly showed its intention to respect the existing rights while providing under Section 6 Savings to the effect that such rights shall be respected and legal proceeding or remedy in respect of such rights may be instituted, continued or enforced. There is no provision in the Indian Limitation Act parallel to Article 165 of the Bikaner Act except Article 183 for the enforcement of a decree of the former High Court of Bikaner. The absence of such provision may be treated as an inadvertent omission or Article 183 may be liberally construed. The latter course is more in consonance with the whole tenor of legislation on this point. As observed by Cleasby B. in Scott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, one aspect of the matter which requires further consideration. The Part 'B' States (Laws) Act was enacted on the 22nd of February, 1951, but this Act was brought into force on the 1st of April, 1951. Thus there was a period of one month and some days between the date when the law was enacted and the date when it was brought in force. With respect to the law of limitation, it has been said in a number of cases that if there is a gap between the dates of enactment and enforcement of the new law of limitation repealing the old law, it should be taken that all suits and applications must be filed within the period prescribed under the new law. This is based on the rule that when the operation of a new law is postponed for some time, the hardship due to retrospective operation of the law may be said to have been met by the postponement of the operation of the Act after its enactment. In R. v. Leeds and Bradford Ry. Co., (1852) 18 QB 343 there was a gap of six weeks between the date of the enactment of the new law and the date when it was brought into force. Lord Cambell. C. J. observed, as follows : If the Act had come into operation immediately after the time of its b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decree-holder cannot be said to have been consigned to the record by the order of the court. No question therefore of the revival of the application arises in this case. 29. As a result of the aforesaid discussion, I am of the opinion that the learned Senior Civil Judge was wrong in dismissing the execution application of the decree-holder as time barred. I would, therefore, set aside the order of the Senior Civil Judge, Sikar dated the 8th of February 1958 and direct him to proceed to decide the other objections of judgment debtor in accordance with law. 30. Now I take up for consideration Civil Execution First Appeal No. 33 of 1960--Ghanshyam Das v. Hira Lal. 31. Hiralal and Hans Raj decree-holder-respondents filed a suit for the recovery of money against the predecessor in title of representatives in the former High Court of Bikaner in its original jurisdiction. This was dismissed but on appeal the suit was decreed on the 7th Of June, 1937 for ₹ 13,932/2/-. On the 20th of April 1943 the decree-holders filed the first execution application for the enforcement of the decree which was dismissed on the 30th of November 1943. Thereafter they filed another applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is urged that the decree-holders could have proceeded with the execution of their decree to the extent of one- fourth's share in one house and as they did not proceed with that execution for the enforcement of the decree, it must be taken that their application was dismissed. As the judgment-debtors have themselves admitted that the application for enforcement of the decree was consigned to record, I take it that the executing court thought it proper to con sign the case to the record room to be taken up later on after the decision in the other suit. The present application for the enforcement of the decree prays for the attachment and sale of the very same property the attachment and sale of which was stayed in the previous application for the enforcement of the decree. 33. Thus, in the present case, I find that the record of the previous application for the enforcement of the decree was consigned to record room by the order of the court. The previous application for enforcement of the decree was not dismissed at the instance of the decree-holder. In considering whether an application is for the revival of the previous application or not there is no question of partial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, because in that event that legislation would destroy preexisting vested rights of parties. Giving retrospective effect to such a case legislation does not amount merely to a change in the rule of procedure but it leads to forfeiture of the very right to which the procedure is meant to apply. It would be, therefore, inappropriate to extend our observation in Karan Singh's case beyond the demand of the situation there. 36. In the present instance, there is a decree passed by the Bikaner High Court in its original jurisdiction to which Article 165 of the Bikaner Limitation Act applied, which provided a special period of limitation for the enforcement of such a decree. Such a decree was treated in a different manner and stood, for purposes of limitation, entirely on a different footing from the decrees passed by other subordinate Courts in the then State of Bikaner. In a case of this kind, I agree that it is safer to depend upon the general principle that the provisions of the Ordinance will not affect the right of the decree-holder and that the decree would continue to be governed by Article 165 of the Bikaner Limitation Act, in spite of its repeal by the Ordinance. Speak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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