' ,. --

S.C.R. SUPREME COURT REPORTS 533

who is treated as agent under section 43 may not fall

19S3 within any of the several categories of income, profits T f d ' 4" Th 1 urnar or gams re erre to m section :6. e anguage Mmrison ct co., of section 43 will also attract the provisions of Ltd. section 40, for that section also contemplates a v. person who is entitled to receive on behalf of the Commissioner 01 non-resident any income, profits and gains chargel~cotnBie-tao:, t b d . d h . 'es enga • a le un er this Act an may even attract t e provi- sions of section 4(l)(a). In our opinion there is no Das J. warrant for the contention that an appointment of a person as a statutory agent under section 43 only attracts section 42 for such appointment is for all purposes of the Act and not only for the purposes of section 42.

In our judgment, for reasons stated above, the answers given to the questions by the High Court, in so far as they relate to the assessment of incometax with which alone we are now concerned, are correct and this appeal must be dismissed with costs.

Appeal dismissed.

Agent for the appellant: P. K. Mukherii.

Agent for the respondent: G. H. Raiadhyaksha.

N ALINAKHYA BY SA OK

SHYAM SUNDER HALDAR AND OTHERS. [MEHR CHAND MAHAJAN, DAS, and BHAGWATI JJ.]

West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950), s. 18 (I)- T-Vhether applies to orders for recovery of possession made by Presidency Small Cause Court-" Decree for recovery of possession "-Construction of stat1ites-Mistakes of legislature.

The expression "decree for recovery of possession" in s. 18

(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act (Act XVII of 1950) does not include an order for recovery of possession made under s. 43 of the Presidency Small Cause Courts Act, 1882, and a person against whom an order fo1

Jan. 29.

Nalinakhya

Bysaclc

Shyam Sunder

Haldar. and Others.

534 SUPR:E:ME dOURT REPORTS (1953]

recovery of possession has been passed under s. 43 of the Presidency Small Cause Courts Act, 1882, is not therefore entitled to claim relief under the provisions of s. 18 (1) of Act XVII of 1950.

•Bai Bahadiir Atiilya Dhan Banerjee v. Siidhangsu Bhiisan Dutta([l951] 55 0.W.N. 343), Dhanesh Prakash Pal v. Lalit Mohan Ghosh ([1951] 55 O.W.N. 347), Mohan Lal Khettry v. Ohuni Lal Khettry ([1951] 55 O.W.N. 421) Jethmull Sethia v. Aloke Ganguly ([1951] 55 O.W.N. 563), Iswari Prasad Goenka v. N. R. Sen ([1951] 55 O.W.N. 719) overruled.

In construing a statute it is not com:Petent to any court' to proceed upon the assumption that the Legislature has made

a mistake and even if there is some de:fect in. the phraseology used by the Legislaure, the Court cannot aid the defective Phrasing of an Act or add and amend, or by construction, make up deficiencies which are left in the Act.

Oom1nissioner for Special Purposes of Income Tax v. Pemsel ([1891] A.O. 531); Crawford v. Spooner ([1846-51] 4 l\LI.A. 179) and Hansraj Gupta v. Official Liqi<idator of Dehra D"n Mi<ssourie Electric Tramway Go. Ltd. ([1933] 60 I.A. 13) referred to.

CrvIL APPELLATE JuRISDIOTION: Civil Appeal No. 96 of 1952. Appeal from the Judgment and Order dated the 9th April, 1951, of the High Court of Judicature at Calcutta (Sen and Chunder JJ.) in Civil Rule No. 1038of1950 arising out of the Order dated the 4th July, 1950, of the Court of the 6th Judge, Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 6571 of 1949.

Arun Kumar Dutta and Shivdas Ghosh for the appellant. -.

Panchanan Ghose (S. P. Ghose, with him) for the respondent.

1053. January 29. The .Judgment of the Court was delivered by . , DAS J.-This appeal is directed against the judgment and order of a Bench of the Calcutta High Uourt passed on the 9th April, 1951, iu Civil Rule No.1038 of 1950. The facts leading up to this appeal may be shortly stated as follows : The respondents were, according to the appellant, monthly tenants under the appellant in respect of three rooms, one kitchen, one privy and a bathroom on the groundfioor of premises No. 6, Roy Began

. -

Street, Calcutta, at a monthly rent of Rs. '35 payable according to the Bengali calendar month.

On the 29th Baisakh 1356 B. S. the appellant gave notice to the respondents to quit the premises on or before the

7th Jaistha 1356 B.S. The respondents having failed to comply with tqe notice the appellant on the 1st June, 1949, instituted proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882, for the eviction of the respondents from the demised premises on the allegation that the tenancy had determined ipso fact.J for non-payment of rent for three consecutive months in terms of section 12 (3) of the West Bengal Premises Rent Control Act, 1948. The respondents on the 6th July, 1949, deposited into Court Rs. 233-7-0 and on the 8th July, 1949, entered appearance and filed a written statement denying that they were in arrears with their rent or that their tenancy had been ipso facto determined.

The said proceedings came up for hearing on the 27th February, 1950, and the respondents not having appeared it wa3 heard ex parte and an order was made directing the delivery of possession of the premises to the appellant on the 3rd May, 1950. In the meantime on the 31st March, 1950, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950) came into force.

On the 29th May, 1950, the respondents filed an application in the trial Court under section 18 of the said Act for vacating the order for possession.

On the 5th June, 1950, the trial Court made an order upon terms which, as set out in the respondents' case, are as follows :

"5 .. 6-50.

On consent all arrears of rent up to J aistha 1357 B.S. with interest at 9% p.a. along with the costs of the suit including half Pleader's fee amounting to Rs. 399-3-0 on consent in total to be paid by the defendants to the plaintiff by 4-7-50. The date fixed for payment arid final orders. All proceedings :a.nd execution stayed until further orders."

The agreed amount having been paid the order for possession was vacated on the 4th July, 1950.

The

Nalinakhya

By sack

v Shyam Sunder

Haldar and Others.

Das J .

' . [1953]

1953 order as recorded in the order sheet reads as follows:- Nalinakhya

Bysaak • "4-7-50. Parties present as before. Defendant

v. carries out the order of the learned Court, dated 5th Shyam s,.nder June, 1950.

Money deposited in Court as ordered.

Haldai Accordingly order of decree for possession \s vacated. and Others.

Money in Court is allowed to be withdrawn by the Das J. plaintiff's pleader under power."

The appellant on the 1st August, 1950, moved the High Court under section 115 of the Code of Civil Procedure for setting aside the order of the trial Court passed on the 4th July, 1950. While the application was pending before the High Court the West Bengal Premises Hent Control (Temporary Provisions) (Amendment) Act, 1950 (Act LXII of 1950) came into force on the 30th November, 1950. On the 9th April, 1951, the High Court following an earlier .decision of another Bench of that Court in Rai Bahadur Atulya Dhan Banerjee v. Sudhangsii Bhusan Dutta(') dismissed the. application.

On the 30th November, 1951, the High Court granted leave to the appellant to appeal to this Court and issued a certificate under the provisions of article 133 (1) (c) of the Constitution of India ..

As already stated, the proceedings out of which 'the present appeal arises were instituted under Chapter VII of the Presidency Small Cause Courts Act, 1882.

Chapter VII of that Act which is intituled "Recovery of Possession of Immovable Property" allmvs the landlord, in certain circumstances, to "apply to the Small Cause Court for a summons against the occupant calling upon him to show cause on a day therein appointed why he should not be compelled to deliver up the property." Section 43 provides that if the occupant does not appear at the time appointed or show cause to the contrary, the applicant landlord shall, if the Court is satisfied that he is entitled to apply under section 41, be entitled to an order addressed to a Bailiff of the Court directing

(I) (1951 J 55 C.W.N. 343

" ' . ·""

him to give possession of the property to the applicant on such date as the Court thinks fit to name in

Nalinakhya such order.

Although under the rules framed under Bv,, ack the Act this application under section 41 is initiated v. by a plaint there is no dispute that the proceeding is Shyam Sunde,.

not 'a suit and the order for delivery of possession Haldar k. d f and Others. does not strictly spea mg amount to a ecree or recovery of possession. [See Rai Meherbai Sorabji Master v. Pherozshaw Sorabji Gazdar(1 ) ].

Indeed, section 19 of the Act peremptorily provides, inter alia, that the Small Causes Court shall have no jurisdiction in suits for recovery of immovable property.

The only question for consideration, therefore, is whether section 18(1) of Act XVII of 1950 applies to an order for possession made under section 43 of the Presidency Small Cause Courts Act, 1882.

Section 18(1) and the marginal note to that section run as follows :

"18. (1). where any decree for recovery Gf possession of any premises has been made Power of Court to rescind or vary on the ground of default in payment

decree~ and rdei:s of arrears of rent under the provisions or to give rehef in . rending suits in of the vVest Bengal Premises Rent certaincases.

Control (Temporary Provisions) Act, 1948, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this sub-section till the application has been dismissed under sub-section ( 4)."

In Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhu, san Dutta it was held that the expression "decree for recovery of possession" in subsection (1) of section 18 includes an order for recovery of possession made under Chapter VII of the Presidency Small Cause Courts Act, 1882. This case

(l) (1927) I.L.R. 51 Born, 385,

(2) (1951) 55 C.W, N. i3•

Das J.

Nalinakhya

Bysack v.

Shyam Sunder

Haldar and Others.

Das J.

was followed, without further discussion, by different Benches of the same High Court in Dhanesh Prakash Pal v. Lalit Mohan Ghose ('), Mohan Lal Khettry v.

C"kuni Lal Khettry ('), Jethmull Sethia

v. Aloke Ganguly (') and also in the present case.

Finally, the question was again considered by a larger Bench of the Calcutta High Court in Iswari Prasad Goenka v.

N. R. Sen(').

The learned Judges agreed with the earlier decision in Rai Bahadur Atulya Dhan Banerjee v.

Sudhangsu Bhusan Dutta (5 ).

After hearing the able arguments advanced before us and giving the most anxious consideration to the decisions in the cases mentioned above we are unable to accept the conclusion arrived at by them in those cases as correct.

Apart from the question whether the marginal note can at all be refened to in construing the provisions ol a section of an Act, it is quite clear, on the authorities, that the marginal note cannot control the meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself.

Take for instance section 11 of the West Bengal Premises Rent Control Act, 1948.

The section says that notwithstanding anything contained in certain Acts specified therein, "no order or decree for the recovery of possession of any premises shall be made so long as the tenant pays to the full extent the rent allowable by this Act and performs the conditions of the tenancy." The marginal note to that section simply says: " No order for ejectment ordinarily to be made if rent paid at allowable rate." In the marginal note the words "or decree" do not find a place at all, a fact which clearly shows that the marginal note was not prepared carefully and that it was not a sure guide in the matter of the

(1) (1951) 55 C.W.N. 347

' (2) (1951) 55 C.W.N. 421.

(3) (r951) 5~ C.w N. 563.

(4) (195r) 55 C.WN. 719.

(5) (1951) 55 C.W.N. J43

interpretation of the body of the section.

We have, therefore, to r'ead the words used in the body of section 18(1) of the 1950 Act and if we find the meaw:iing clear and unambiguous, the marginal note should not be permitted to create an ambiguity in the section.

Section 18 (1), as it stood on the 4th July, :1.950, when the order for possession passed on the 27th February, 1950, was vacated, gave relief to a tenant aga.inst whom any decree for recovery of possession of any premises had been made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act, provided that the possession of the premises had not been recovered from him.

The relief given by this section is clearly against a decree for possession which "has been made" under the 1948 Act.

The language of section 18 (1) of the 1950 Act and in particular the specific reference therein to the Act of 1948 take us back to that Act. Section 11 of the 1948 Act refers "to order or decree for the recovery of possession of any premises".

The reference in the non obstante clause of section 11 to the Presidency Small Cause Courts Act, 1882, clearly indicates that the order for the recovery of possession refers to orders passed under section 43 of the last mentioned Act on applications made under section 41 thereof.

Section 11 speaks of both "order" for the recovery of possession and " decree " for the recovery of possession.

Therefore, there can remain no manner of doubt that the two words " order " and " decree " in section 11 connote two different things. '.l'his is further made clear by the use of two words "suit" or "proceeding" in section 12 of the 1948 Act.

I~ is, thus, quite clear that in the 1948 Act "suit" is different from "proceeding" and "order" is different from "decree".

Therefore, in construing the 1948 Act there can be no occasion for giving any extended meaning to the word" decree" so as to include "order", for the two are distinctly and separately provided for.

Section 18 (I) of Act XVII of 1950 does not refer to "decree"

. 1953

Na!inakhya Bysack

V, Shyam Sunder

Haldar and Others.

Das J.

Nalinakhya Bysack v.

Shyavi Sunder

Haldar and OtherR,

Das J.

simpliciter but to "auy decree for recovery of possession of any premises on the grouud of default in payment of arrears of rent under the pravisions of" the 1948 Act.

Turning then to that Act we find that a decree for possession on the ground of non-payment of rent under that Act is treated distinctly from an order for possession on the ground of non-payment of rent under the same Act.

A decree for the recovery of possession within the meaning of that Act can, therefore, only mean a decree in a snit for recovery of possession and eannot cover an order for possession passed under section 43 on an application made under section 41 of the Presidency Small Cause Courts Act. In short, section 18(1) of Act XVII of 1950 expressly attracts the 1948 Act and under that Act there can be no necessity for giving an extended . t th d "d " f " d " . meamng o e wor ecree , or or er 1s separately dealt with in that Act.

It is said that whatever the word "decree" may mean in the 1948 Act it is immaterial for the purposes of construing Act XVII of 1950 for the Court has to ascertain the meaning of the word ''decree" as u"sed in section 18(1) of the last mentioned Act. It has been already stated that the language of section 18

(1) attracts the relevant provisions of the 1948 Act and, therefore, the word "decree" occurring in section 18(1) must necessarily be construed in the light of the 1948 Act and it is clear that so construed it cannot cover "order" for possession made under Chapter VII of the Presidency Small Cause Courts Act. Apart from that consideration, the question still remains: What does the word "decree" in section 18 (1) mean? 'fhat word has not been defined either in the 1948 Act or in Act XVII of 1950 or in the Bengal General Clauses Act. '!.'hat word, however, has been defined in the Code of Civil Procedure, 1908, and, as there defined, it means the formal ex.pression of an adjudica.tion which determines the rights of the parties with regard to the matter in controversy in the suit which last word prima facie means a civil proceeding initiated by a plaint (secti<; m 26 1J, nd Order IV, rule 11

Civil Procedure Code). This is the ordinary accepted meaning of the word " decree" and if that meaning is attributed to the word " decree " occurring in section 18(1) then clearly it cannot cover an order Jor

Nalinakhya By sack v. possession passed under section 43 of the Presidency Shyam Sunder Small Cause Courts Act on an application made under Haldar seotion 41 of that Act. and Others.

It is, however, urged that the word " decree" in section 18 (1) of Act XVII of 1950 should not be read in its strict sense. It is said that although the word "suit" ordinarily means a proceeding instituted by a plaint, it is also used in a wider sense so as to cover proceedings which are not instituted by a

plant and, therefore, an adjudication in those proceedings which are also suits in that extended meaning may well be said to be a "decree". Reference is made to the explanation of sub-section (1) of section 12 of Act XVII of 1~50, which expressly provides that in the proviso to sub-section (1) the term "suit" does not include proceeding under Chapter VII of the Presidency Bmall Cause Courts Act, 1882, and it is urged that this explanation inferentially means that tlie word "suit" occurring in the other sections of Act XVII of 1950 may include a proceeding under Chapter VII of the Presidency Small Cause Courts Act and, therefore, an order made on such a proceeding may be described as an adjudication in a suit and, therefore, a decree. It is not quite clear how this inference, even if it can be properly drawn, can have any bearing on the construction of the word "decree" in sub-section (1) of section 18 of the Act XVII of 1950

where the word " suit" is not used at all.

Be that as it may, the argument founded on the aforesaid inference sought to be drawn from the explanation to section 12 (1) of Act XVII of 1950 will clearly appear to be untenable when the provisions of that Act are closely scrutinised, for it will then be found that the word "suit" does not and was not intended to cover any proceedin'g under Chapter VII of the Presidency Small Cause Courts Act.

Section 12 (1) prohibits the making of any order or decree for the

Das J.

Nalinakhya

Bysack v.

Shyam Sundllr

Haldar and Others.

Das J.

recovery of possession by any Court, notwithstanding anything to the contrary in any other Act or !:ow.

This sub-section (1), standing by itself, means that no oriler for possession can be passed by the Presidency Small Cause Court notwithslanding the Presidency Small Cause Courts Act and no decree for possession can be made by any Court in any suit notwithstanding the 'rransfer of Property Act or the Contract Act or the Code of Civil Procedure, 1908.

The proviso to sub-section (1), however, saves "any suit for decree for such recovery of possession" against certain tenants or in certain circumstances.

Therefore, it is clear that the proviso to sub-section (1) of section 12 does not save proceedings under Chapter VII of. the Presidency Small Cause Courts Act. The explanation to that sub-section stating that the word "suit" in the proviso does not include a proceeding under Chapter VII of the Presidency SmaU Cause Courts Act appears to have been inserted out of abundant caution to put the position beyond any doubt. Section 16 of Act XVII of 1950 provides that notwithstanding anything contained in any other law a suit by a landlord against a tenant for recovery of possession "of any premises to which the Act applies shall lie to the Courts as set out in Schedule B and that no other Court shall be competent to entertain or try such suit. According to Schedule B, where the premises are situate on land wholly within the ordinary original civil jurisdiction of the Calcutta High Court aud when the rent does not exceed Rs. 500 per month, the Chief Judge of the Calcutta Court of Small Causes shall entertain and try such suit .as a Court of the District Judge, provided that he shall be entitled to transfer the suit to any other Judge of that Court who shall try it as a Court of the Subordinate Judge.

The result of sections 12 and 16 read with Schedule 'B is for all practical purposes to suspend the operation of Chapter VII oft.he Presidency Small Cause Courts Act in Calcutta for no one will take proceedings in which no order can be made. The effect of those sections is to confer a new jurisdiction on the

• ...

S.C.R.

1953 Chief Judge of the Calcutta Small Cause Court to entertain and try suits by landlords -against tenants for recovery of possession of premises situate within Nalinakhya By sack the ordinary original ci vii ju.risdiction of the Calcu1'ta v.

High Court when the monthly rent does not exceed Shyam Sundei Rs. 500.

Thus after Act XVII of 1950 came into Haldar force the Calcutta Small Cause Court has ceased to and Others. have any power to pass an order for possession under Chapter VII of the Presidency Small Cause Courts Act and the Small Cause Court of Calcutta can, under that Act, only pass a decree for possession in a suit which is saved by the proviso to sub-section (1) of section 12 and with regard to which a special jurisdiction is conferred on that Court by section 16 of that Act. That being the position, the word" suit " in none of the sections of Act XVII of 1950 can be said to have been used as including a proceeding under Chapter VII of the Presidency Small Cause Courts Act.

Therefore, the reasoning advanced in support of attributing an extended meaning to the word "suit" and then inferentially to the word "decrne" in section 18 (1) cannot be sustained.

It is next argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for possession had been made under the 1948 Act will be deprived of the benefit of section 18 (1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the i1:1tention of the Legislature. This argument proceeds on the assumption that the Legislature intended .to give relief to all tenants against whom orders or decrees for possession had been made. The language of section 18 (1) clearly shows that the intention of the Legislature was to give relief only to certa; in tenants in certain circumstances. In the first place relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground. In the next place reliHf is given only when the possession of the premises in respect of which a

Das J.

Nalinakhya

By sack v.

Shyani Sunder

Haldar and Others.

DasJ.

decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the.ground specifid in the subsection and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under section 18 (1).

An order for possession i.s niade by the Presidency Small Cause Court under Section 43 on a summary application under section 41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This'order for the recovery of possession which under section 37 of the Presidency Small Cause

Courts Act is final and conclusive and from which there is no appeal or a new trial under section 38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a snit and to execute such decree, because both the decree for possession in a suit arid the order for execution thereof are subject to appeal.

The Legislature may well have thought that cases where orders for possession had been made under Chapter VII of the Presidency Small Cause Courts Act with respect ' to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High Court and which, in spite of such orders, were sti]j in the possession of the tenants at the date of the commencement of Act XVII of 1950 would be few in number as compared to the number . of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the possession of the tenants and, therefore, did not think fit to provide for those few cases.

It, must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Piirposes of Income Tax

v. Pemsel ('), that it is not competent to any Court to proceed upon the assumption that the Legislature

(I) L, R. [t891) A. C, 531 at p. 5+9

S.C.R.

SUPREME COUR'r REPORTS 545

has made a mistake.

The Court must proceed on the 1958 footing that the Legislature intended what it has Nalinakhya said.

Even if there is some defect in the phraseology Bysack . used by the Legislature the Court cannot, as poinwed v. out in Crawford y. Spooner (1), aid the Legislature's Shyam Sunder defective phrasing of an Act or add and amend or, Haldar d fi · h' h l f and Others. by construction, make up e ciencies w 10 are e t in the Act.

Even where there is a casus omissus, it is, as said by Lord l:tussell of Killowen in Hansraj Gupta

v. Official Liquidator of Dehra Dun-Mussoorie Electric Tramway Co., Ltd. (2), for others tlian the Courts to remedy the defect.

In our view it is uot right to gi.ve to the word " decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided.

Reference was made, in course of argument, to section 6 of the West Bengal Act LXII of 1950.

That section refers to orders or decrees made between the commencement of Act XVII of 1950 and Act LXII of 1950, i.e., between the 30th March, 1950, and the 30th November, 1950, and cannot have any application to the order for possession made in this case on the '27th February, 1950.

For reasons stated above this appeal must be allowed and the order made by the High Court should be set aside and the respondents' application under section 18 (1) of Act XVII of 1950 should be dismissed and we order accordingly. In the circumstances of this case we make no order as to costs except that the parties should bear their own costs throughout.

Appeal allowed.

Agent for the appellant: S. C. Bannerji.

Agent for' the rspondent : Sukumar Ghose.

(1) 6 Moo. P.C. l; 4 MJ.A. 179

(2) (19~3) L.R. 60 I.A, 13; A.l.R. 193~ P.C. 6~,

Das J .

section 43

section 43

section 40

section 4(l)(a)

section 43

section 42

section 42

P. K. Mukherii

G. H. Raiadhyaksha

N ALINAKHYA BY SA

OK

SHYAM SUNDER HALDAR AND OTHERS

MEHR CHAND MAHAJAN

BHAGWATI JJ.

s. 18

s. 18

s. 43

Presidency Small Cause Courts Act, 1882

Nalinakhya

Nalinakhya

Bysaclc

Shyam Sunder

Haldar.

Shyam Sunder

s. 43

Presidency Small Cause Courts Act, 1882

s. 18

Sen

Chunder

Arun Kumar Dutta

Shivdas Ghosh

Panchanan Ghose

S. P. Ghose

Calcutta High Uourt

Calcutta

29th Baisakh 1356 B. S.

1st June, 1949

section 12

6th July, 1949

8th July, 1949

27th February, 1950

3rd May, 1950

31st March, 1950

29th May, 1950

section 18

5th June, 1950

4th July, 1950

v Shyam Sunder

Haldar

section 115

the Code of Civil Procedure

30th November, 1950

9th April, 1951

30th November, 1951

article 133

Constitution of India

Chapter VII of that Act

Section 43

section 41

Nalinakhya

section 41

section 19

section 18(1)

section 43

Presidency Small Cause Courts Act, 1882

Section 18(1)

section 18

Calcutta High Court

section 11

section 18(1)

Section 18

section 18

Section 11

section 11

Presidency Small Cause Courts Act, 1882

section 43

section 41

Section 11

section 11

section 12

Section 18

Na!inakhya Bysack

section 43

section 41

Presidency Small Cause Courts Act

section 18(1)

section 18(1)

section 18

section 18(1)

section 18

General Clauses Act

Code of Civil Procedure, 1908

Civil Procedure Code

section 18(1)

section 43

section 18

section 12

section 18

section 12

Section 12

Presidency Small Cause Courts Act

section 12

Presidency Small Cause Courts Act

Section 16

Calcutta Court of Small Causes

sections 12 and 16

Presidency Small Cause Courts Act

Nalinakhya

Shyam Sundei

Calcutta Small Cause Court

Small Cause Court of Calcutta

section 12

section 16

section 18

section 18

section 18

Das J.

Nalinakhya

Shyani Sunder

Haldar

section 18

Section 43

section 41

section 37

section 38

Presidency Small Cause Courts Act

Halsbury

section 6

Bengal Act LXII of 1950

section 18

S. C. Bannerji

Sukumar Ghose

Das


195,,

Jan.19.

SUPREME COURT REPORTS [1953]

KALAWATI AND ANOTHER v. 'THE srATE OF HIMACHAL PRADESH.

[PATANJALI SASTRI C.J., MUKHERJEA, CHANDRA-

SEKHARA AIYAR, VIVIAN BOSE and GHULAM

HASAN JJ.]

Iiidian Penal Gode (XLV of 1860), ss. 114, 201, 802-Gharges under ss. 302 and 114, and s. 201-0onviction under s. 201 and acquittal on other chafge in Sessions Gonrt-Oonviction nnder ss. 114 and 802. and acquittal under s. 201 i1b High Gozwt-Avpeal to Su, preme Oourt-Poioer to restore conviction under s. 201, when State ha.< not apvealed-Gonstitution of India, 1950, Art. 184 (1) ( c) -Leave to appeal-Certificate of fitness-Death sentence passed by .Judicial Commissioner.

The accused was charged under ss. 114 and 302, Penal Code, with abetment of murder.

The Sessions Judge acquitted her of this charge and convicted her under s. 201, Penal Code, for suppressing evidence of murder and giving false information.

On appeal by the accused aswell as the State, the Judicial Commissioner set aside tbe conviction under s. 201 and convicted the accused under ss. 114 and 302:

Held, that it was open to the Supreme Court, in an appeR.l preferred by the accused, to restore the conviction under s. 201 on setting aside the conviction under ss.114 and 302, even though the State had not appealed, as the acquittal under s. 201 was intimately connected with the conviction under ss. 114: and 302, and took place only because the accusd was co'nvicted of the main charge under ss. 114 and 302.

Begu v.King Emperor (52 I.A.191) applied.

The fact that in a p.rticular State there is only one Judicial Commissioner as the ultimate appellate authority and there is no Bench of tv.o Judges as in the High Courts to confirm death sentences is not an adequate ground for granting a certificate that a case where the death sentence has been awarded is a fit one for appeal to the Supreme Court under article 134 (1) ( c) of the Constitution.

CRIMINAL APPELLATE

JURISDICTION: Criminal Appeals Nos. 73 and 74 of 1952. Appeals under article 134 (1) (c) of the Constitution of India from the Judgment and Order dated the i6th June, 1952, of the Judicial Commissioner's Court, Himachal Pradesh

t Simla, in ll,1urqer Referen9e No.~ of l91H ~cl

• -

CriminaJ Appeals Nos. 10 of 1951 and 2 of 1952 arising . outof the Judgment dated the 5th December, 1951, of the Court of the Sessions Judge, Mahasu, and Sirmur Districts, Simla-I, in Sessions Trial No. 7 .of 1951.

Tara Chand Mathur for the appellant Kalawati.

Bawa Shiv Charan Singh for the appellant R!j.njit Singh .

G. 0. Mathur for the respondent in both the appeals, the State of Himachal Pradesh.

1953. January 19. The Judgment of the Court was delivered by

CHANDRASEKHARA AIYAR J. -One Kanwar Bikram Singh was a relation of the Rana of Kuthar.

He was a jamindar with some properties.

Bishanpura within the police station, Solan. was his summer resort.

Manimajra in the Ambala, District was his place of residence on the plains.

He had married in 1938 Kalawati, one of the two appellants.

She was herself a daughter of the late Raja of Nalagarh through a mistress.

Kanwar Bikram Singh was murdered during the early mornirlg hours of 16th July, 1951, as he lay asleep on the roof of his haveli or mansion at Bishanpura. He had several incised injuries on his person.

The case for the prosecution is that Ranjit Singh, the other appellant, who was a distant cousin of the deceased, committed the murder with the help and conniva.nce of Kalawati. It is .stated for the prosecution that the two appellants developed an illicit intimacy with ea0h other, and that they got rid of Kanwar Bikram Singh, as he was cruel in his behaviour to Kalawati. The last act of ill-treatment is said to have been on the 6th July, when Kanwar Bikram slapped his wife.

Unable to endure the continued humiliation at the hands of her husband, and in the hope that her intrigue with Ranjit Singh would be facilit11tecl, Ralawati is said to have conspired with Ranjit Singh to do away with her husba.nd,

Ka!awati and Another v.

The State of

Himacha!

Prade•h.

• •

R1tnjit Singh wits charged with murder under sec tion 302, Indian Penal Code, find Kalaw1tti was Kalawati and•Another charged under sections 114 and 302, Indian Penal

v, Oode, with abetment of murder, which was committed The State of in consequence.

The Sessions Judge of Mahas'.l and Himachal Sirmur found Ranjit Singh guilty of the offence and Prndesh. sentenced him to the extreme penalty .of the law. He

Chandrasekhar• acquitted Kalawati of the offence of abetment under .

Aiyar J. section 302 read with section 114, but found her guilty under section 201, Indian Penal Code, as she suppressed the evidence, screened Ranjit Singh, and gave false information in respect of the murder; and he sentenced her to five years' rigorous imprisonment.

'l'he two appellants preferred appeals to the Court of the Judicial Commissioner, Himachal Pradesh, and the State preferred an appeal against the acquittal of Kalawati on the charge of murder.

The Judicial Commissioner allowed Kalawati's appeal, aud set aside her conviction and sentence under section 201.

At the same time, he allowed the State appeal against her and convicted her of an offence under section 302 read with section 114, Indian Penal Code, and sentenced her to transportation for life.

Ranjit Singh 's appeal was dismissed.

An application was made to the Judicial Commissioner under article 132 (1) of the Constitution for a certificate that the case involved substantial questions of law as to the interpretation of the Constitution.

He granted the certificate, but he also added that the case was otherwise also a fit one for appeal to the Supreme Court under article 134 (1) (c). He thought that as the confirmation of sentence of death as a matter of practice prevailing in the High Courts was generally made by a Bench of two Judges at least, it was not fit and proper that the matter should rest with his own decision sit.ting singly. We feel bound to state that the reason he has given for certifying the case as a fit one for appeal nnqer :J, rticle 134 (1) (c) is not sound. If iq any

S.C.R. SUPREME COURT REPOR'l 1S 549

particular State there is only one Judicial Commis-

I95B sioner as the ultimate appellate authority, and if the Kalawati confirmation of sentence of death has to be made by and Another him, the procedure laid down must be followed. 'ffie v. fact that there is not a Bench of two Judges as in The State of the High Courts to deal with death sentences is not Himachal an adequate ground for converting the Supreme Court Pradesh. into an ordinary court of appeal and confirmation in Ohandrasekhara .. such matters. It is unnecessary, however, to pursue .iiya•· J. 4 this subject further, as we have heard the two appeals on their merits as well.

'fhere is no substance in the constitutional points sought to be raised on behalf ofthe appellants. Both the appellants have made confessions of their guilt which were recorded under section 164, Criminal

Procedure Code, but they retracted them in the Committing Magistrate's court. 'fhe confessions were used against them at the sessions trial and in their examination under section 342, Criminal Procedure

Code. Each was asked about certain details of the confession made by the other.

It was contended that if an accused person retracted his or her confession, it should not be used against him or her at all, as it would contravene article 20

(3) of the Constitution; which provides that no person accused of any offence shall be compelled to be a witness against himself. It is difficult to see the force of this point. A confession has to be voluntary before it can be used against a person making it, and a magistrate is bound to satisfy himself that it is being made without any inducement, threat or promise.

No person accused of a crime is bound to make a confession, and if there is any compulsion or threat, it has to be ruled out as irrelevant and inadmissible.

Sub-section (3) of article 20 does not apply at all to a case where the confession is made without any inducement, threat or promise. It is true that a retracted confession has only little Yalue as the basis for a conviction, and that the confession of one accused is not evidence against a co-accused tried jointly for the same offence, but can only be taken

I95B into consideration against him.

This deals with its

Kalawati probative value and has nothing to do with any and Another repugnancy to the Constitution.

v. lt was also urged that as sub-clause (2) of article The State 0! 20 of the Constitution provides that no person shall

;;:::::. 1 be prosecuted aI).d punished for the same offence more

nhan once, the Government cannot have any right of Chandrasekhar• appeal against an acquittal. If there is no punish- Aiyar J. ment for the offence as a result of the prosecution, the sub, section has no application ; and secondly, an appeal against an acquittal wherever such is provided by the procedure is in substance a co.ntinuation of the prosecution.

Mr. Tarachand, who appeared for Kalawati, ultimately desisted from pursning these constitntional objections and addressed himself to the merits.

A few facts and dates may be set out here as relevant to the proper appreciation of the arguments addressed on behalf of the appellants. The murder took place, as already stated, on the open roof of Bikram Singh's haveli about 4 a. m. on 16th July, 1951. Mst. Shibbi

(P.vV.3) who wasa cook in the family and who was sleeping on the same roof at a little distance was the first to wake up on hearing some strange noise, and she saw a man going away from near her bed and getting down the ladder at the back of the house. She raised a hue and cry and found Bikram Singh fallen down from his bed with his face downwards.

The other servants in the house, namely, J ora and Dayaram and P.W.3's husband, Nathu, who were all sleping downstairs, came on to the roof.

One Laik Ram also arrived with a gas light. Kalawati who was sleeping by the side of her husband was not in her bed; she was standing in the room near the steps. It was discovered that Bikram Singh had been the victim of a fatal attack. 'l'he commotion reached-the ears of P .W. 7, who lived at some distance, and he shouted to the police station near by.

His cries brought on the scene, at about 4-40 a.m. the head constable (P.W. 24) to whom Kalawati made a statement to the

S.C.R. SUPREME CQURT REPORTS 55i

effect that some unknown dacoits had invaded her house, killed her husband and robbed her of her jewels.

As he was proceeding with the investigation, the station-house officer, Solan, (P.W. 38) arriv'ed

and took it up.

Kalawati and Another

The State of Himachal Various articles were recovered in the course of Pradesh. the investigation.

A scabbard was discovered on 16th July, 1951, itself by P.W.19 at a distanceofoneOhandrasekhara furlong from the house of the deceased.

Two days Aiyar J • later, i.e., on 18th July, 1951, a shirt and a kachha were discovered by P. W. 22 from underneath a stone in a water channel about a mile further away.

On 24th July, 1951, Ranjit Singh was arrested, and it is stated that he took the police and took out a sword from a bush to the west of the place of occurrence a.t a distance of 100 yards.

Some bushes had to be cut at the instance of the accused before the sword was discovered.

Certain ornaments, thirty-five in number, and said to belong to Kalawati were unearthed by the accused himself on 27th October, 1951, from a room of his house in Basdhera.

They were all in a. metal box, and the box was in an earthen pot which lay buried in the earth.

Kalawati made a confession on 28th July, 1951, before the Magistrate, Sri Antani (P. W. 31). The confession of Ranjit Singh was recorded by the same Magistrate on 3rd August, 1951.

The material evidence in the case consists of these two confessions and the evidence given by the maidservant, Shibbi (P.W. 3).

The other evidence adduced relates to motive and the several discoveries, on which the prosecution relies as corroborative circumstances to support the substantial truth of the confessions, which were retracted even before the Committing Magistrate by both the appellants.

It is abundantly clear that the relationship between Kala.wati and her deceased husband, Bikram Singh, was strained. As early as 1946, she had complained against him of violence and threat to kill, and his a, rms licence was cancelled. He was addicted. to drink,.

1953 and often used to quarrel with her and ill-treated her.

Since 1948 or thereabouts, Ranjit Singh, a fairly Kalawau 1 d h f c ose relat10n, entere mto t e p10ture as a requent and Another v. viitor at Manimajra or Bishanpura. He developed The State of intimate relations with Kalawati, which led to suspi- Himaoha! cion of her misconduct with him.

The evidence of Pradesh.

Balbir Singh, brother -of the deceased, Baldev Singh, - ' the manager of the estate, and Dropadi, mistress of Oh•ndra8'khara h f b f b d d d p ur 1 2 d A' J t e at er o t e ecease , examme as . "s. , an •yar 5 respectively, establishes this. In her confession marked Exhibit P.A.A., Kalawati points out bow and why her relations with her husband became strained, and refers to her liaison with Ranjit Singh, the conspiracy between them to get rid of Bikram Singh, the

p.Jan laid out for this purpose, and the fatal assault early in the morning of the 16th July. She throws the entire blame on Ranjit Singh, to whose scheme she agreed, out of sheer disgust for her husband.

She telis us that she made a confession so as to remove the load of sinfulness from her soul.

The confession of Ranjit Singh, Exhibit P.A.C., which was also retracted, is more or less on the same lines, but he says that Kalawati was primarily responsible for the scheme, and be concludes it thus:

"Had Kalawati not asked me, I would not have thought of murdering Kanwar.

The fault of worsening the relations between Kalawati and Kanwar lies on the Kanwar. He had illicit connections, witb his father's keep."

He admits that be inflicted the injuries found on Bikram Singh with a sword. Before the Committing Magistrate, be , did not impeach this confession in any manner when be was examined under section 342.

But in the Sessions Court be went back on it as regards every material detail almost, and stated that it was entirely dictated to the Magistrate by two police Sab-Inspectors, and that he was a passive listener to what they said. He signed the document out of fear as the police had beaten him.

Shibbi, who on the fatal night was sleeping at some l953 distance on the same terrace with Bikram Singh and Kalawati Kalawati, woke up on hearing a slashy noise, and and Anothei found Ranjit Singh pass near her bed and going don v. the ladder at the back of the house.

She raised The State of shouts, and the servants who were sleeping in the Himachal

K 1 d Pradesh. courtyard downstairs came up. a awat1 was stan - _ ing near the steps of an adjoining room. \Vhen she Chandrnsekhara told her that Hanjit Singh was running away Kalawati Aiyar J . denied that it was Ranjit Singh, and stated that some dacoits had come and robbed her of her ornaments.

Her evidence was accepted by the, courts below, and there is a ring of truth about it. If she was a false witness, there was nothing to prevent her from saying that she saw Ranjit Singh attacking Bikram Singh with a sword.

But she tells us that she did not see the commission of the murder, and saw only the back of Rarijit Singh when he was hurrying down at a distance of a yard or so from her bed. She could not identify the weapon in his hand, except to the extent of stating that he was holding something shining.

It is true that she did not mention the name of Ranjit

Singh at any time earlier than in the Oommitf1ing Magistrate's court, but this was because Kalawati had scolded her and ased her to keep quiet. The suggestion that her husband, Nathu, was probably responsible for the murder, as his hands were admittedly bloodstained when people had gathered there, is unlikely. He had no motive whatever to kill his master.

It might well be that when he came up along with the servants and the crowd had gathered, he came into touch with the body in ascertaining what had happened or for giving water to the injured man in his last gasp, about which there is some evidence.

Kalawati had given the police a story of an attack by dacoits, and till the investigation advanced, it is only natural that suspicion should have fastened itself on several people. Laik Ram, a shopkeeper, who carries on his business opposite the place of occurrence, who was examined as P. W. 23, told the police that he suspected many sets of peorl1:1

1958 -namely, Shibbi and Nathu, Kalawati, a Sikh ser-

Kalawoti vant of the deceased, Balbir 8ingh, the brother of the and Another deceased himself, and the driver, who was formerly a

S11b-Iuspector, and two Sikhs who were seen in the The State of jungle at 8 p.m. the previous night.

Himachal Apart from the confessions, there are definite Pradeh. . d _ circumstances which m ica.te beyond reasonable Chandrasekhar• doubt the guilt of Ranjit Singh. He is a resident

Aiyar J, of Bashdera, but his sword and scabbard were found near the place of occurrence, and it was he who recovered the sword from a bush.

His kacha (underwear) remained concealed under a stone in a channel near the place of occurrence.

Kalawati herself stated in her confession that the kachha seemed to belong to Ranjit Singh, as she knew he had purchased the cloth, and it was sewn on hr own sewing machine aud in her presence at Manimajra.

More important is the discovery of the ornaments of Kalawati on 29th July, 1951, in the presence of Ranjit Singh and with his assistance. 'rhey were buried underneath the earth in a room of his house in Ba'shdera. It was urged that as the room was an open one with no doors and no roof, it was probable they were planted there.

According to Kalawati's confession, she had left them at Manimajra, and she says that Baldev Singh, the manager, had the keys, suggesting thereby that he might have handed over the jewels to the police for implantation.

Ranjit tells us that as he was being taken to Bishanpura in a jeep, Baldev handed them to the Sub-Inspector, Prithiram.

We are not prepared to differ from the Judicial Commissioner on this point.

Baldev was not asked a single question in cross-examination about his enmity with Kala.wati and there was no suggestion why he should have colluded with the police in the manner alleged .. The Sub-Inspector was not asked either about Ranjit Singh's allegation.

Much argument was addressed to the effect that it was not at all likely that Ranjit Singh would have buried the ornaments il\ hjs oWI\ house 11tnd in an open room1 and tlia~ if h~

. •

wanted to conceal traces of the crime, he would have l953 concealed them elsewhere. 'I'he ornaments had to Kahwati be returned in all probability, and he might h0ave and Another thought that their careful preservation was his duty. v.

Had he concealed them in a locked room or box, it The stat• of would have been much more damaging to him if Biin1chal they were. discovered by the police who would Pradesh. inevitably search his house.

It was not till the - f th" 27th' th t }7 1 t' d f Chandrasekh-ira even mg o. e a i.a awa i ma . e a con ess10n Aiyar J • to the police, and there was hardly any time for them to take hold of the ornaments from Manimajra, proceea to Basdhera, implant them in the house of Ranjit

Singh, return to Bishanpura, and take Ranjit to his house on the 29th so that he could show the place of concealment. \Ve are not prepared to differ from the learned Judicial Commissioner, who rejected the criticisms of the Sessions Judge about this recovery and accepted the prosecution story as trua.

As regards Kalawati the case is suspicious, no doubt. 1 t is possible that she aided and abetted Ranjit Singh in the criminal deed.

But we think it is possible also that though she wa> aware of the intentions of Ranjit Singh expressed from time to time for the sake of protecting her from ill-treatment and cruelty at the hands of her husband, she might not have believed that he was going to put his threat into actual execution.

As pointed out already in more than one place, each of the accused charges the other with the active formulation of the scheme to get rid of an inconvenient obstacle and a cruel brute. There is one defect in Kalawati's confession which , might be noticed here.

A careful crutiny of it leads to the conclusion that phe final hatching of the plot was on the afternoon of'the 8th July, andthat the entrustment of the ornaments into Ranjit Singh's hands was on the morning of the 9th. 'I'his is in apparent conflict with the diary of Bikram Singh marked P. W. 38/3, where there is this entry under the date of 8th July: ''Ranjit Singh gone to Simla for his personal work to enquire about his application.

Then he will proceed Manimajra." If this is correct, the story of

556 SUPREME COUR'l' REPORTS [1953)

the plot on the 8th and the entrustment on the 9th Ka!•wati is somewhat damaged, unless it was possible for and Another Ranjit Singh to go to Simla on the afternoon of. the

The State of

Himnchl'l-l Pradesh.

8th' and return to Bishanpura on the morning of the 9th, on which aspect, however, there is no evidence one way or the other.

We have to assume that the 8th of Jnly was the date of the secret tlk between

Ohandrasekhan K:tlawati and Ranjit Singh from the 'fact that Balbir

Aiya>· J.

Singh (P. W. 1) says that he left Bishanpura for Manimajra with the children on the 7th of Jnly, and she says that the arrangement was on the day after the children left. 'rhere may be some mistake about the dates.

Apart from this infirmative circmµstance, there is yet another, which renders it unsafe to take Kalawati's confession at its face value.

She was prepared to make a confession on the 27th evening, and she was actually taken to the Magistrate.

Not only was she prepared, but she insisted on making it, and there was no particular reason why the recording was postpo'.led to the next day.

She alleges that the Sub- Inspector asked for time stating that her condition was bad, and she should be given 12 hours to think O\er it. 'l'he confession contains minute details which would not normally find a place in such a document.

For instance, she says:

"We had become so close that I can claim to have seen all his clothes, because he used to keep his boxes usually 'Yith me and his room was also next to mine. He may not have seen all my clothes, but those that I wore must have been seen by him.

Normally ) he would have seen only the jewellery which I wore.

He had not known of my jewellery box."

The conversation between Kalawati and Ranjit Singh in the presence of a maid-servant near the well where she had gone to wash her clothes is rather incredible. For these reasons, we hesitate to act upon the confession of Kalawati and find her guilty of aiding and abetting the offence of murder.

Bnt there can scarcely be any doubt that she mnst have witnessed the murder 9f her bqsl; J:J, nd lying next

S.C.l\.

StJPREMm COURT REPORTS 557

to her on a charpai.

Sbibbi who was at a distance of 19.53 18 feet was roused by the sound of a sword attack. l Kalawati Kala, wati must have woke up a so at least during the and Anothsr course of the assault if not at its commencement, v. several injuries having been in11icted in succession.

The Stats of vVhen Shibbi woke up, Kalawati's bed was empty, and Hiniachaz she was found in a room nearby and not at the place Pradech. of occurrence.

She trotted out an elaborate story of Oh d-k' d h h t b d n . f an rase , cara acorty, w rc can no e accepte as true.

P, ven 1 Aiyar J. in terror she ran away from her bed and stood at a distance, she is almost sure to have known who was the offender, unless he had bis face muffled.

The first version Rhe gave to the police head corntable when he appeared on the st!ene immediately after the occurrence is, we think, false, and we are of opinion that she knew or believed it to be false.

The border line between abetment of the offence and giving false information to screen the offender is rather thin in her case, but it is prudent to err on the safe side, and hold her guilty only of an offence under section 201, Indian Penal Code as the learned Sessions Judge did.

It was urged for her by Mr. Mathur that as she was acquitted of this offence by the Judicial Commissioner, and as there has been no appeal by the Govermp.ent against the acqujttal, she cannot nowbe convicted of the same by this Court. This argument proceeds on. a fallacy. Section 201 is not restricted to the case of a person who screens the actual offender; it can be a pp lied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both, of the main offence and under section 201.

The Judicial Commissioner acquitted Kalawati of the offence under section 201 for which she was convicted by tlle Sessions Judge, only because he thought that the main offence itself, namely, murder, was brought home to her.

But if we think for the reasons given above tba't it would not be safe to convict her of the main offence, the ;:i, cquittal is no legal impediment to her conviction under section 201. It was held by the Privy Council

558 SUPREME cobR'l' REPORTS Li953j

1953 in Begu v. King-Emperor(') that in a charge of murder under section 302 a conviction under section .Kala.wati and Anothor 201 without a further charge being made was warrantv. ed • hy the provisions of section 237, Criminal The State of Procedure Code. If Kalawati had been acquitted

Hiniachal of an offence under section 201 independently of the Pradesh. charge of murder against her, it would have been a

Cha d;;;.khara different matter. But as her acquittal is so intimately

 :iyar J. related to the charge of the main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under section 201.

The result is that Raujit Singh's Appeal No. 74 of 1952 is dismissed, but we 'substitute for the sentence of death the sentence of transportation for life, having regard to the time that has now elap>ed since the occurrence and the probable motive of prevention of cruelty to a helples!t woman.

Kalawati's Appeal No. 73 of 1952 is allowed, and her conviction and sentence under section 302 discharged, but we convict her of an offence under section 201, Indian Penal Code, and sentence her to three years' rigorous imprisonment.

Appeal N.i. 73 allowed.

Appeal No. 74 dismissed.

Sentence reduced.

Agent for the appellant in Appeal No. 73: B. R .. Anand.

Agent for the respondent: G. H. Rajadhyaksha.

(1) 119>5) 52 I. A. 11)1.

KALAWATI AND ANOTHER

THE srATE OF HIMACHAL PRADESH

PATANJALI SASTRI C.J.

MUKHERJEA

SEKHARA AIYAR

VIVIAN BOSE

HASAN JJ.

ss. 114, 201, 802

ss. 302 and 114

s. 201

s. 201

ss. 114 and 802

s. 201

s. 201

Art. 184

ss. 114 and 302

Penal Code

s. 201

Penal Code

s. 201

ss. 114 and 302

Supreme Court

s. 201

ss.114 and 302

s. 201

ss. 114

ss. 114 and 302

article 134

article 134

Constitution of India

Tara Chand Mathur

Kalawati

Bawa Shiv Charan Singh

R!j.njit Singh

G. 0. Mathur

CHANDRASEKHARA AIYAR

Kanwar Bikram Singh

Ambala

16th July, 1951

Bishanpura

Ranjit Singh

Kalawati

Kanwar Bikram Singh

Kanwar Bikram

Ranjit Singh

Ralawati

State of

Himacha

R1tnjit Singh

Indian Penal Code

sections 114 and 302

Ranjit Singh

Prndesh

Chandrasekhar•

Aiyar

section 302

section 114

section 201

Indian Penal Code

Himachal Pradesh

section 201

section 302

section 114

Indian Penal Code

article 132

article 134

S.C.R. SUPREME COURT REPOR'l 1S 549

Supreme Court Pradesh

Ohandrasekhara

section 164

Procedure Code

section 342

Code

article 20

article 20

Chandrasekhar•

Tarachand

Bikram Singh

Shibbi

J ora

Dayaram

Nathu

Laik Ram

Kalawati

S.C.R. SUPREME CQURT REPORTS 55i

Solan

State of Himachal

18th July, 1951

24th July, 1951

27th October, 1951

Basdhera

28th July, 1951

Antani

Ranjit Singh

3rd August, 1951

Kala.wati and

Balbir Singh

Kanwar

section 342

Shibbi

Kalawati Kalawati

Anothei

\Vhen she Chandrnsekhara

Hanjit Singh

Kalawati Aiyar

Rarijit Singh

Ranjit

Singh

Oommitf1ing Magistrate's court

Nathu

Balbir 8ingh

Manimajra

29th July, 1951

Ba'shdera

Baldev Singh

Ranjit

Baldev

Prithiram

Chandrasekh-ira

Simla

State of

Himnchl'l-l Pradesh

Ohandrasekhan K:

Singh

Balbir

Manimajra

vVhen Shibbi

Rhe

section 201

Indian Penal Code

Mathur

Section 201

section 201

section 201

section 201

section 302

section 237

Criminal The State of Procedure Code

Hiniachal

section 201

iyar

section 201

Raujit Singh

section 302

section 201

Indian Penal Code

B. R .. Anand

G. H. Rajadhyaksha


S.U.R.

SUPRmME COURT REPORTS 559

r, AL BHAGvVANT SINGH

v. •

RA! SAHIB LALA SRI KISHEN DAS

[MEHR CHAND MAHAJAN, DAS and BHAGWATI JJ.]

Civil Procedure Code (Vo/ 1908), s. 144-Compromise decree- Stipulation to sell property to decreeholder within a week for amoiint due-Amendment of decree allowing judgment-debtor to pay in instalments, whole amount being payable on default of 8 instalments- Original decree restored by High Court-Sale in execution-Amended decree restored by Privy Council- Validity of sale-Restitution- U. P. Encumbered Estates Act (1984 as amended in 1989)-Proceedings under s. 4 quashed by Board of Revenue-Sale of judgment

debtor's property before Aniendment Act-Application under Amendnient Act to amend previous application-Whether fresh proceedings --Validity of sale.

Under a compromise decree the amount due to the plaintiff was fixed by mutual consent and it was further agreeii that the defendant should within one week of the date of the decree convey to the plaintiff immoveable properties sufficient to satisfy the decree.

The U. P. Agriculturists Relief Act of 1934 having come into force, the decree was subsequently amended by the Civil Judge by reducing the amount and -directing that the amount may be paid in 12 annual instalments with the condition that if three instalments were in default the whole amount was to become immediately payable.

The amended decree was set aside by the Chief Court in 1938. The decreeholder applied for execution, and a sale deed" was executed by the Civil Judge in 1939 for' the entire decree amount.

The Privy Council reversed the decree cif the Chief Court and restored the amended decree of the Civil Judge in 1944.

The judgment debtor applied for restoration of theproperties with mesne profits by way of restitution: Held, confirming the decree of the Chief Court, that, as the judgment-debtor had not obtained any order staying the operation of the amended decree pending the decreeholder's appeal to the Chief Court he was bound to carry out the terms of the amended decree, and, as the Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its decree did not in any way alter the position of the parties as it stood under the amended decree, and, the sale was not in consequence of any error in a decree which was reversed on appeal by the Privy Council, the judgment-debtor was not entitled to restitution.

Dayal Sardar v. Tari Deshi (I.L.R. 59 Cal. 647) and Gansu Rani v. Parvati Kuer (A.LR. 1941 Pat. 130) appraved.

195/J

Jan. 31

SU!':REMB COURT RBPORTS [19.53)

1953 The judgment-debtor. in the above mentioned case aJ>plied under s. 4 of the U. P. Encumbered Estates Act, 1934, for ad- Lal Bhngwa1it ministration of his estate i111936 but the proceedings \Yere qua.shed

Singh by J; he Board of Revenue in 1938.

As no order for stay af exev. cution was obtained, a sale was effected in execution of the decree

Bi Shib Lala in :B1ebruary, 1939. The U. P. Encu1nbered Estates (An1endment) Sr1 Kisheii Das. Act, 1939, can1e into force after the date of the sale and the

judgment-deb\01' applied on the 10th October, 1939, for amending his former application, but it was ultimately decided by the Chief Court that the amendment application of 1939 must be treated as fresh proceedings : .

Helcl, confirming the decision of the Chief Oourt1 that as the proceedings which were started in 1936 v.•ere quashed by the Board of Revenue in 1938, \be saie held in February, 1939, was unaffected by the bar imposed by s. 11 of the Act.

The order rr1ade on the application of the 10th October was an order on a fresh application under s. 4 and it had no retrospective effect and could not affect the validity of the sale. effected when no application under s. 4 was pending.

CIVIL APPELLATE .JURISDICTION: Civil Appeals Nos. lOl, 102 and 103 of 1951.

Civil Appeal No. 101 of 1951 was an appeal from the Judgment and decree dated the 13th March, lfl46, of the Chief Court of Avadh at Lucknow in First

Civil Appeal No. 132 of 1943 arising out of the Judgment dated the 25th September, 1943, of the Court of Special J\1dge, 1st Grade, Sitapur in E. E. Act Suit

No. 27/l of 1938. Civil Appeals Nos. 102 and 103 of 1951 were appeals from the Judgment and Decree dated tlre 13th March, 1946, of the Chief Court of Avadh at Lucknow in Execution of Decree Appeals Nos. 103 of 1944 and 23 of 1945 arising out of the Judgment dated the 16th November, 1944, of the Court of Additional Civil .Judge, Lucknow, in Miscellaneous

Case No. 70 of 1944.

B. I. Bishan Singh for the appellant.

M. C. Setalvad (Nazimuddin Siddique, with him) for the respondent.

1953.

January 21. 'rhe Judgment of the Court \Vas deJi, ered by MAHAJAN J.

. ..

-.(

MAHAJAN J.-Shortly stated, the facts , giving rise 1953 to these three appeals are these: La! Bhagwa nt On the 4th July, 1933, Rai Bahadur Lala Hari Singh Kishen Das obtained from the court of the civil judge, v.

Sitapur, a final compromise decree in the sum of Ri Shib Lala.

Rs. 3,88,300-'2-6 with pendente lite and future interest Sn Kishen Das. and costs, on the foot of two simple mortgages Mahajan J. executed in his favour in 1928 and 1931 by Thakur Raghuraj Singh. It was provided in the compromise that Raghuraj Singh would within a week sell to Hari Kishen Das at agreed prices some villages out of the mortgaged property selected by him and sufficient to satisfy the decree.

He reserved to himself the right to get back the sold villages after five years and before the expiry of fifteen years on payment of the stipulated prices. 'rhe computation of the price of the sold lands was to be made in the manner laid down in clause (6).

Hari Kishen Das made a selection of eight villages, and deeds of sale and relinquishment in respect of them were duly prepared and executed on 4th July, 1933.

Before they could be presented for registraition, the parties received information that a notification for assumption by the Court of W a.rds of the management of the talukdar's estate had been issued a.nd that it was likely to render the conveyances ineffectual. In view of the impending notification the sale transaction fell through and a refund was obtained oi the amount spent on the stamp papers.

On the 20th January, 1934, the Court of Wards decided that it would not take the estate under its supervision. Hari Kisben Das then revived his demand against the judgment-debtor for the completion of the sale deeds but the judgment-debtor did not pay any heed to his request with the result that on 26th May, HJ34, be made an application for execution of the compromise decree. 'ro the execution of this decree a number of objections we.re raised by Raghnraj Singh.

Before the disposal of these objections the U.P. Agriculturists' Relief Act (XXVII of

1934) and the U.P. Encumbered Estates Act (XXV

1953 of 1934) came into operation.

Under the provisions of Act XXVII of 1934, the judgment-debtor became La! Bhagwa"t entitled to the amendment of the decree by reduction Singh

v. of•interest, and for payment of the decretal sum in R•i Sahib Lala instalments. Under the other Act, a landlord debtor Sri Kishen Das. whose property was encumbered could apply to the court for the administration of his estate for 1iquida- Mahajan J. tion of his debts.

Raghuraj Singh was not slow in seeking the aid of these laws to reduce the amount of his indebtedness and to save his property.

He made applicatior1s under both the Acts. In the application under the Relief Act he prayed for the scaling down of the amonnt .of the decree and for instalments. In the application under section 4 of the Encumbered Estates Act he asked for liquidation of his debts by the civil judge.

On the 11th January, 1936, the civil judge of Sitapur altered the decretal amount of Rs. 3,88,300-2-6 to Rs. 3, 76, 790-4-3 exclusive pf costs and future interest and directed Raghnraj Singh to pay the money in twelve equal annual instalments payable in the month of December of each year, the first instalment being payable in "December, 1936, and also provided that in the case of default in payment of three instalments, the whole amount then due woulii become immediately payable. Against this order, Hari Kishen Das filed an application in revision to the Chief Court and was successful in having the amended decree set aside on 15th February, 1938.

In the proceedings commenced under the Encum-.

bred Estates Act on 29th October, 1936, Ragburaj

Singh obtained an order under section 6 of the Act but this order was eventually quashed by the Board of Revenue on 13th August, 1938, and the debtor's application under section 4 was dismissed.

Having succeeded in bis application in re>ision in the Chief Court, Hari Kishen Das revived the proceedings in execution of the compromise decree and called upon 'Raghuraj Singh to execute a sale deed in respect of the selected villages in bis favour.

On his failure to comply with this demand, the court

,..

• -

executed a deed of sale in his favour on 24th Febru- 1953 ary, 1939, and in due course delivered to him posses- Lal Bhagwa .. t sion of the property covered by .the deed. • Singh Thakur Raghuraj Singh died in the year 1941, v. leaving him surviving the present appellant as his Ri Sahib Lala successor in interest.

An appeal had .been taken by Sn Kislien Das. him against the decision of the Chief Court dated Mahajan J. 15th February, l 938, setting aside the amended decree to His Majesty in Council.

By an order of His Majesty in Council passed on 20th January, 1944, the decision of the Chief Court dated 15th February, 1938, was reversed and the amended decree passed by the Civil Judge of Sitapur on 11th January, 1936, was restored.

Liberty was given to the appellant to apply to the court of the civil judge, Sitapur, for such relief as he might be entitled to with reference to the recovery of possession of the property.

In view of the decision of the Privy Council, Bhagwant Singh (appellant) made an application for restoration of possession and for recovery of profits wrongfully reali1rnd by Hari Kishen Das and after his death by his adopted son Sri Kishen Das.

This application was strenuously resisted by the creditor and it was pleaded by him that even under the amended decree a sum of Rs. 4,31, 148-9-9 including interest and costs had become due to the decreeholder on the date of the sale since three instalments which had till then fallen due had remained unpaid and the default clause had come into operation and the sale in execution could not be sett aside, as it has not caused any injury to the judgment-debtor and had not in any way caused loss to him in the absence of proof that he had the money to pay the instalments. 'rhe subordinate judge allowed the application for restitution conditional on Bhagwant Singh paying within two months the accumulated sum that had fallen due to the decreeholder under the unpaid in- .stalments up to the date of the order. He held that the arrears up to December, 1943, came to Rs. 3,58,914-8-9, and deducting from this amount the net profits

19~8 realized during the period of his possession amounting to Hs. 73, 294-8-5 and the cMts of appeal allowed Lal Bhngwant Singh by the Privy Council, a sum of Rs. '2,81),620-0-4 was v. du~ and directed that if this amount was not deposit- Rai Sahib Lala ed in court within two months, the application would Sri Ki•hen Das.stand dismissed.

Bhagwant Singh applied for extension of time but this application was summarily Mahajan J. dismissed.

Rai Sahib Sri Kisben D:>s and Bhagwant Singh both appealed to the Chief Court against this deci- sion. 'l'he appeal of Sri Kisben Das was numbered as 103 of 1944.

His contention was that the judgment-debtor was not entitled to restitution at all.

The appeal of Bhagwant Singh was numbered as 23 of 1945.

His grievance was that he was entitled to restitution without any condition.

The Chief Court allowed the decreeholder's appeal (103 of 1944) with costs and dismissed the judgment-debtor's appeiol

('23 of 1945) but without costs, and dismissed the application of the judgment-debtor for restitution on the 13th March, 1946. Appeals 102 and 103 of 1951 arise out of this decision. Appeal No. 101 of 1951 arises out of another decision of the Chief Court dated I.3th March, 1946, which confirmed the decree dated 26th September, 1943, of the special judge of Sitapur under the Encumbered Estates Act. 'l'he facts about this matter are these:

As already stated, m 28t\i October, 1936, Thakur Haghuraj Singh applied under section 4 of the U.P. ) Encumbered Estates Act (XXV of 1934) for administration of his estate so as to liquidate his debts amounting to about 14 lakhs.

On 13th August, 1938, tbe Board of Revenue quashed the proceedings under the Encumbered Estates Act initiated by 'l'bakur Haghuraj Singh.

As no order for stay of execution proceeding.s was obtained by Raghuraj Singh from the Chief Court or the Privy- . Council, the civil judge to whom the execution proceedings had been, tra, nsferred, on 13th

::;.C.R.

SU.PREME COURT REPOR'fS 565

February, 1939, ordered the judgment-debtor to execute a sale deed and on his makin 0(J a default the civil

Lal Bhagwinl judge on '24th February, 1939, execnted a sale deed S.ingh on behalf of the judgment-debtor in favour of .lai v.

Bahadur Hari K1she11 Das.

The 0 . .P. Encumbered Rrii Sahib Lala.

Estates Amendment Act (XI of ] 939) came into Sri KishenDas. operation after this sale. It allowed the applicants Mahajan J. to amend their applications, proceedings in respect of which had been quashed previously.

On the 10th October, 1939, Raghuraj Singh applied for amendment of his application.

This application was allowed by the sub-divisional officer who passed an order under section 6 of the U .P. Encumbered Estates Act on 18th October, 1939, and forwarded the amended application to the special judge, .first grade, Sitapur.

On 31st July, 1940, the special judge passed an order to the effect that the proceedings would start afresh.

Raghuraj Singh went up in revision to the Uhief Court against this ordr contending that the proceedings should not be deemed as fresh proceedings.

The Chief Court dismissed the revision on 9th December, HJ40. On a notification issued under section 11 of the _b; ncumbered Estates Act, Hari Kishen Das filed objection on 14th August, h142, under section 11 clail'1ing that the villages sold to him were his property and wore not liable to be attached and sold for the debts of Raghuraj Singh. 'fhis objection was contested by the debtor.

The special judge by his decree dated 25th September, HJ43, declared Rai Bahadur Hari Kishen Das to be the proprietor of all the eight villages included in the sale deed of 24th February, 193\:1.

Against the decree of the special judge an appeal was filed in the Chief Court which confirmed that decree on 13th March, 1946. Appeal No. 101 of 1951 now before us is directed against that decree.

This appeal can be shortly disposed of.

The proceedings under the _b; ncumbered .Estates Act having been quashed by the Board of Revenue in August, 1938, the sale held in February, 1939, was unaffected by the bar imposed by section 7 of the Act. lu

566 SUPREME ootJR1' REPO R'fS tHJ53)

wsa view of the decision of the Chief Court dated 9th December, 1940, the appellant could not be allowed Lal Bhagwant h h h d h Singh to agitate t e_pomt t at t e procee in gs s ould have v. beep deemed to be pending in February, 1939, be- Rai Sahib Lala cause of the provisions of the amending Act.

This Sri Kish•?• Das. point was stressed before us by the Jearued counsel for the appellant and he contended that the provi- Mahajan J. sions of the amending Act XI of 1939 should have been given retrospective operation and the date of his original application shonld have been treated as the date of the start of the proceedings under the Encumbered Estates Act.

This contention, in our opinion, was rightly negatived in the courts below, and it was rightly held that the order made under section 6 on 18th Ocober, 1939, was made on a fresh application under section 4 of the U.P. Encumbered Estates Act preferred on 10th October, 1939, and this could not affect the validity of the sale deed executed at a time when no application under section 4 was pending. It was argued in the courts below that the sale deed was a nullity because it was executed while execution proceedings were pending before the collector under schedule III of the Code of Civil Procedure. 'rhe point was not argued before us in this appeal.

This appeal therefore fails and is dismissed with costs. • As regards appeals Nos. 102 and 103, the main point for decision is whether in the circumstances of this case the appellant was entitled to restitution by way of restoration of possession and grant of mesne profits after the reversal of the compromise decree by the Privy Council and the restoration of the amended decree as passed by the civil judge under the Relief Act.

Having regard to the provisions of section 144 of the Code of Civil Procedure, the Chief Court was of the opinion that the sale in 1939 was inevitable and conld not have been avoided if the amended decree had been then in force and that if it was set aside it wonld confer on the appellant an advantage to which

pis predecessor was not entitled, he having defaulted

• .. • , i..

in the payment of three instalments before the sale 1953 took place. 'rhe following passage from the judg- Lal Bhagwant ment of the Chief Court expresses the view that it Singh took on this point :- • v. "For purposes of section 144 we have in the words R11i Sahib Litl11 of the section 'to place the parties in the position Sri KishenDas. which thy would have occupied but for such decree J.Iahajrin J. or such part thereof as has been varied or reversed.' So placing them the issue which falls for determination is.whether the judgment-debtor would have paid the accumulated amount of three instalments namely Rs. 1,37,839-1-11 in December, 1939.

On the evidence the lower court. has come to the conclusion with which we agree that Thakur Raghuraj Singh owed no less than rupees fourteen lakhs to other creditors, and computing the v0, lue of the entire landed property at the rate specified in the compromise of 1133, it was only rupees nine lakhs. Lal Bhagwant Singh produced no evidence to 'establish that his father was otherwise in a position to pay the amount of three instalments in December, 1938. We may mention that no objection has been taken at the bar to the estimate of indebtedness or to the evaluation of the estate.

Taking them, therefore, to be correct it is impossible to believe that the judgmeiltdebtor could have prevented the sale on 24th February, 1939, if the parties were then governed by the decree of 1936.

The result which followed was inevitable and cannot be attributed solely to the erroneous order passed by this court in February, 1938."

In our opinion, no exceptin can be taken to the judgment of the Chief Court in the facts and circumstances of this case and both these appeals would therefore have to be dismissed.

On account of the order of His Majesty in Council the amended decree passed by the civil judge, Sitapur, on 11th January, 1936, must be deemed to have been subsisting all a.long. 'All the terms of the compromise were embodied in the amended decree and there was no difference in the tw@ decrees except for the reduction of

SUPREME COUHT HEPORTS [1953)

1953 the sum due from Rs. 3,88,300-2-6 to Rs. 3,76,790-4-3 and the reduction of pendente lite and future interest Lal Bhagwant

Singh and for provision for instalments.

The compromise •• dcree with the necessary adaptations and amend- Rai Sahib, Lala ments became the amended decree and was enforceable Sri Kishe,.Das.as such. It gave the judgmentdebtor, an opportunity to satisfy the decree by instalments if he committed MahajanJ. l d h f b no defau t an to save t e property ram emg sold in satisfaction of it but in case the whole amount of the decree became due according to its terms or if any portion of it remained unpaid, it yet had to be satisfied in the same manner as the original compromise decree.

During the pendeucy of the decreeholder's appeal before the Chief Court the judgmentdebtor did not obtain any order staying the operation of the amended decree.

He was th us boun'd to carry out the terms of that decree but be failed to pay any of the instalments that fell due in 1986 or 1937. 'fhe third instalment, it is true, fell nue in December, 1938, after the amended decree had been set aside by the Chief Court but the judgment-debtor had appealed for its restoration to the Privy Council.

He should therefore have taken steps to protect himself against being in default with payment of three instalments. ln order therefore to avoid the default which he would otherwise commit by non-payment of the third instalment it was obligatory on him to pay or offer to pay to the decreeholder an amount equal to the amount of one instalment so that three instalments will not be in. arrear, or to obtain au order from the Privy Council absolving him from complying with the terms of the amended decree set aside by the Chief Court, even if it was eventually restored. Failing that, he should have obtained a fresh order from the Privy Council fixing the instalments and time for the payment.

He, however, did nothing and adopted the attitude that he need make no payment and considered himself absolved. from satisfying either the original decree or the amended decree. 'fhe result of this attitude was that the whole of the decretal amount became due on his

failure to pay the third instalment provided for under 1963 the amended decree in December, 1938, and he Lal Bhagwa t thus lost the benefit of paying the decretal amount Singh " by instalments. The amount due from him .in v February, 1939 under the decree was the same sum Ri Sahib Lala for which the property was sold in execution of the Sn Kishen Das, original decree.

In this situation it cannot be said Mahajan J. that there was any alteration in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the civil judge, Sitapur, in 1936.

The position would have been the same if that decree was a subsisting one and was in execution. If the judgment-debtor could have shown that he was in a position to pay the aggregate amount of the instalments in December, 1938, or at least one instalment so that he could not be said to have defaulted in the payment of three instalments, then the sale made in February, 19'39, could not possibly be regarded as one under the amended decree but could only have been made iri consequence of the original compromise decree, and that compromise decree having been superseded and the amended decree having been restored, the sale held under the rever, ied decree would surely have to be set a, side.

On the other hand, if the sale could not have been avoided even if the amended decree which was eYentually restored bad been in operation at the time of the sale by reason of default of payment of three instrdments and the sale was also a necessary consequence under the decree of the civil judge and was inevitable, then it cannot be said that the sale held in February, 1939, was the re:i11lt and • consequence of the reversed decree. It is true that it is one of the first and the highest duty of a court to take care that its. acts do not injure any of the suitors and if any injary was caused to the judgrrientdebtor by the sale held in February, 1931, it was our duty to undo the wrong caused to him.

It, however, cannot be said that in this case any wrong bas been done to the judgment-debtor which we are called upon to redress, It is not possible to bold that he

1953 was under no obligati6n to satisfy either one or , the

L 1 B-;:- t other of the two decrees, and that he was absolved • Sin';;:.. from satisfying the instalmenLdecree because it had v.. been set aside by the Chief Court and he was also

Rai B'•hib Loia_ absolved from satisfying the original decree because Sri Kish•~ Das. it was later on set aside by the Privy Council. Having

, - himself appealed to the Privy Council for the res-

Mahai""_~· toration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of its provisions. Having defaulttld in this, he must take its consequences, which are

now different from the consequences of the original decree. Indeed, if in this case the prayer of the . judgment-debtor. for restitution was granted, it would result in doing not only an injuetice but a wrong to the decreeholder and the court wouldnot be acting fairly and rightly towards him. As already said; in February 1939 both under the original decree and the amended'decree a sum of.over rupees four lakhs became due to him and he was entitled to get a sale of the villages seleGJted by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages is restored to the judgment-debtor and mesne profits are decreed in his favour, the decreeholder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity; it would place the judgment-debtor in a position of advantage to which he is not entitled.'. The executing court de- • creed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the decreeholder under the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial judge was not availed of by the judgment-debtor .. as he has no means whatsoever to make any payment.'

.~ An order of restitution in the manner asked for in the circumstances of this case would be contrary to the - principles of the doctrine of restitution which is that on the re.versa! of a judgment the law raises an obligation on the party to the record who reQeived the.

• ....

' .

benefit of the erronP')US judgment to make restitution 195 to the other party for what he had lost and that it is L l B-;:- the duty of the court to enforce that obligation "' Sin:wa.nt unless it is shown that restitution would be clearly v. contrary to the real justice of the case.

The decree- Ra.i Sahib Lala holder in the present case has derived no advantage Sri Kishen Da.s. to which he was not entitled and the judgment-debtor MahajanJ. has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decreeholder. In the words of Rankin

C. J. in Dayal Sardar v. Tari Deshi(1), the judgmentdebtor is not entitled to reqover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree.

The sale being inevitable under the amended decree the judgment-debtor was clearly not entitled to restitution. It was held in Gansu Ram v. Parvati Kuer (2), that where a judgment-debtor could not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and the judgment-debtor could not invoke the provisions of section 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in t4is case have apposite application to the faets and circumstances of this case.

For the reasons given above we are of the opinion that there is no merit in either of these appeals anti we dismiss both of them with costs.

Appeals dismissed.

Agent for the appellant: 0. P. Lal.

Agent for the respondent: Rajinder Narain.

(1) (1932) I.L.R. 59 Cal. 6f7,

(•) A.I.R. 1941 Pat. no.

AL BHAGvVANT SINGH

v. •

RA! SAHIB LALA SRI KISHEN DAS

MEHR CHAND MAHAJAN

BHAGWATI JJ.

Civil Procedure Code

s. 144

Encumbered Estates Act

s. 4

Agriculturists Relief Act

s. 4

Encumbered Estates Act, 1934

Bi Shib Lala

s. 11

s. 4

s. 4

B. I. Bishan Singh

M. C. Setalvad

Nazimuddin Siddique

MAHAJAN

Rai Bahadur Lala Hari Singh Kishen Das

Ri Shib Lala

Mahajan

Thakur Raghuraj Singh

Raghuraj Singh

Hari Kishen Das

4th July, 1933

20th January, 1934

Hari Kisben Das

26th May, HJ34

Raghnraj Singh

Encumbered Estates Act

Kishen Das

section 4

11th January, 1936

Sitapur

15th February, 1938

29th October, 1936

Ragburaj

Singh

section 6

13th August, 1938

section 4

24th Febru- 1953 ary, 1939

Singh Thakur Raghuraj Singh

Ri Sahib Lala

Kislien Das

20th January, 1944

Civil Judge of Sitapur

Bhagwant Singh

Bhagwant Singh

Lal Bhngwant Singh

Rai Sahib Lala

Ki•hen Das.stand

Kisben D:>s

Kisben Das

26th September, 1943

Thakur Haghuraj Singh

section 4

Encumbered Estates Act

Raghuraj Singh

Lal Bhagwinl

Estates Amendment Act

10th October, 1939

section 6

Encumbered Estates Act

18th October, 1939

31st July, 1940

Uhief Court

section 11

section 11

25th September, HJ43

Rai Bahadur Hari Kishen Das

13th March, 1946

section 7

Lal Bhagwant h h h d h Singh

section 6

18th Ocober, 1939

section 4

Encumbered Estates Act

section 4

the Code of Civil Procedure

section 144

the Code of Civil Procedure

section 144

KishenDas

J.Iahajrin

Lal Bhagwant Singh

24th February, 1939

Lal Bhagwa

Rai B'•hib Loia

Kish•~ Das

Ra.i Sahib Lala

Kishen Da.s

MahajanJ.

Rankin

section 144

. P. Lal

Rajinder Narain