Karnataka High Court
Janaki vs Rama Bangera on 26 November, 1985
Equivalent citations: ILR1986KAR973
ORDER Chandrakantaraj Urs, J.
1. This is a Judgment-debtor/tenant's revision under Section 115 of the Code of Civil Procedure directed against the order of the J Additional Munsiff, Mangalore, made in Execution Case No. 395 of 1983 pertaining to O.S. No. 406 of 1973 on his file.
2. O.S. No 406 of 1973 was filed by the decree holder plaintiff for recovery of possession of certain immovable property which was in the possession of the Judgment-debtor as a tenant. That suit came to be decreed on 4 9-1979. The immovable property is situated at Peramannur Village which is outside the City limits of Mangalore City. In other words, at the time the suit was filed it was excluded from the purview of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Principal Act'). It was in that circumstances, the suit had to be filed as an Original Suit in the Court having necessary territorial jurisdiction. The execution case, as is apparent, was filed on 5-9-1983. However, by Karnataka Act No. 17 of 1983 (hereinafter referred to as the 'Amendment Act'), Schedules I, II and III of the Principal Act were amended by Section 4 of the Amendment Act. Section 4 of the Amendment Act reads as follows :
"4. Substitution of Schedules I, II and III:-
For Schedules I, II and III of the Principal Act, the following Schedules shall be substituted, namely :-
SCHEDULE I (See Section 2(2)) A. Areas within the limits of the Cities under the Karnataka Municipal Corporations Act, 1976 and the areas within a radius of three kilometres from the limits of the said cities.
XXX XXX XXX In terms of Section 1 of the Amendment Act, the Amendment Act shall be deemed to have come into force on 31-12-1982. It was in these circumstances, the tenant took an objection that the executing Court ceased to have jurisdiction to make an order for recovery of possession having regard to Section 21 of the Principal Act which inhibits any Court other than the Court under the Principal Act to pass an order for recovery of possession. The thrust of the argument was that Peramannur being situated within 3 kilometres of the City limits of Mangalore City, in terms of the Amendment Act, the executing Court could not make an order for recovery of possession in the execution proceedings pending before it. (Sri. K.R.D. Karanth, Learned Counsel for the decree-holder/plaintiff; disputes even the distance within which the said village is situated).
3. Sri U. L. Narayana Rao appearing for the Petitioner/ judgment-debtor placed strong reliance on the decision of the Supreme Court in Lakshmi Narayana Guin and ors. v. Niranjan Modak, . In that case also somewhat similar situation arose. A suit for eviction under the Transfer of Property Act was filed to evict the tenant. The said suit was decreed, but was pending in appeal in the Appellate Court when the West Bengal Premises Tenancy Act, 1956, was extended to include the suit schedule property within its ambit. In that circumstance, it was held that the Appellate Court was divested of its jurisdiction, as the appeal was no more than a suit pending in the Appellate Court. Sri Narayana Rao comments that the same principle may be extended to the execution proceedings also.
4. I do not think that that dictum can have such application.
5. He further pointed out that the language used in the Amendment Act was 'substitution' and, therefore, as held by the Supreme Court in Shamrao V. Parulekar v. The District Magistrate, Thana, Bombay, 1952 SCR 683 'substitution' may not be understood to be prospective. Undoubtedly, late Bose, J, as he then was, in incomparable language explained the affect of amendment to a statute in the following terms :
"The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is 'no need to refer to the amending Act at all."
This has been sought to be interpreted to mean that the original enactment as brought into force should be read as if the substituted portion was, in fact, added on that day and not on the date the amendment Act came into force. It is difficult to accede to such a contention. The Supreme Court in Shri Ram Narain v. The Simla Banking & Industrial Co. Ltd., had occasion to consider that passage judicially and ruled as follows :
"But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication ............"
In other words, notwithstanding the language employed to bring the amendment to the statute, the Courts must sea whether the intention of the legislature is to bring the amended provision into operation retrospectively or prospectively. If that test is to be applied, there is nothing in the Amendment Act other than the employment of the word 'substitution' that is meant to be retrospective, i.e., there is no express provision made, except what is mentioned in Sub-section (2) of Section 1 of the Amendment Act, viz., "It shall be deemed to have come into force on the Thirty-first day of December, 1982". In other words, the legislature did not intend the amendment to be effective from a date, earlier than the specified date in 1982.
6. Mr. Narayana Rao does not dispute that the decree passed in the original suit for eviction was passed competently. His only contention was that execution of the decree is continuation of the suit and the executing Court has derived the same jurisdiction as of the Appellate Court as held by me Supreme Court in Lakshmi Narayana Guin case, cited supra.
7. I do not think that the Learned Counsel has understood the decision of the Supreme Court correctly. The legal position that the appeal is a continuation of the suit is now well established. The suit pending in appeal has not reached its finally. The decree under appeal may not be mo decree in the appeal. What me executing Court does is nothing more man giving effect to me decree that has become final. Such giving effect to the decree does not amount to continuation of me suit.
8. The other point which is left is whether on the language of Section 21 of mo Principal Act itself the jurisdiction is divested even of the executing Court. It cannot be. The language used in Section 21 of the Principal Act is that no court shall pass a decree for eviction notwithstanding anything to the contrary contained in any other law or contract. A decree is neither a law nor a contact. Therefore the decree validly passed prior to the commencement of the Amendment Act is a valid decree executable when there is no inhibition in law for such execution. The words "no order or decree for the recovery of possession of any premises shall be made" in Section 21 of me Principal Act must be held to be in futuro. Therefore, the Amendment Act itself being prospective and not retrospective, that was not the intention of legislature in fact. By any process known to Courts it is not possible to interpret the Amendment m question to have the effect of nullifying or invalidating the decree passed prior to amendment.
9. Before parting with the case, it is necessary to state that Sri Dayanand Karanth, Counsel for the Respondent, has no objection to delay the execution of the delivery warrant by two months from to-day. Having regard to the consent of the decree-holder, I direct delivery of possession of the premises be deferred by two months from to-day.
10. There is no merit in the Petition and the Revision Petition is accordingly rejected.