' 3 S.C.l{.

SUPREME COUltT nEPOR'l'S 845

on the managing agents of the mills was effective service on the mills as owners for the purpose of r. 75-A (2).

In conseciuence r. 75.A (3) would apply and the property in the goods passed to the Government of India on September 30, 1946.

The appeal of the Union of India therefore is allowed and a declaration is granted that the goods were vali<lly requisitioned and acquired and that the orders of requisition and notices of acquisition were valid and binding ou the respective defendants, and the goods specified thernin vested in the Government of India on Se.ptember 30, 1946.

As to costs, it appears that this litigation was due entirely to the defect in the form of address of the.

requiltion orders and the notices of acquisition. In the circu:nstances we order parties to bear their own costs throughout.

Civil Appeals Nos. 314 to 316 of 1967 dismissed.

Civil Appeal No. 778 of 1957 allowed.

CHll\'A COTTOK EX.POHTERS

BEHARILAL RAMCHARAX COTTO:\

MILLS LTD. (P. B. GAJENDRAGADKAR and K. C. lJA8 UUP'J'A, JJ.)

Breach of Contract-Contract for sale of goods-Supply s1<bject to import licence-Shipping dat.e guaranteed-Failure to suppty-

Inadequacy of seller's contract with overseas rnpptiers-Liability.

The appellant had made a contract with its Italian suppliers for 200,000 lbs. of cotton fibre for August, 1950, shipment and another for 300,000 lbs. for NovermberiDece1nber, 1950, shipment.

On July 2.2. 1950, tht: appellant entered into a contract with the respondent for the sale of 40,000 lbs. of fibre, August shipment.

On August 9, 1950, it entered into another contract with the respondent for sale of 50,000 lbs. of fibre, "October/November 1950 shipment". ln the remarks column of the second contract it was mentioned: " This contract is subject to import licence and therefore the shipment date is not guaranteed ".

In October, r950, 50,000 lbs. out of the first contract with the Italian suppliers arrived; out of this 40,000 was delivered to the respondent against his first contract and Io, ooo against tl1e second, The balance of 40,000, lbs. against the second contract was not

Jute ~-:- Guuny

!Jrohrrs Ltd. v.

L11io11 vj India

1Fanchoo /.

F ebruayy 17.

China Cotton

Exporters

846 8tJPREME COtJH.1

1 REPORT8 (1961)

supplied. The respondent filed a suit for damages for breach of contract. The appellant contended that it was not liable as the date of shipment was not guaranteed and as it had adequate contracts with its suppliers to cover the contract with the respon-

11 hv . . 1 1 dent but was unable to fulfil it as the supplier failed to make e at-i a h d 1. .

Ra1nchar.1n Cotton t e e iver1es.

Milts Ltd Held, that the appellant was liable for breach of contract as the date of shipment was guaranteed and as the appellant had no adequate contracts with its suppliers to cover the contract with the respondent. In commercial contracts time is ordinarily of the essence of the contract. The words in the remarks column meant that the date of shipment was not guaranteed only to the extent that delay in obtaining the import licence stood in the way of keeping to the shipment date.

As there was no delay in obtaining the licence the shipment date October/November, 1950,

was guaranteed. The other terms of the contract also showed that the date of shipment was guaranteed. The appellant had to show that on the date of the breach i.e. on December 15, 1950, it had a contract under which it could, provided the contract was not broken, obtain the goods to honour its agreement to sell October/November shipment of goods. The first contract with the suppliers was cancelled at the end of September and the appellant was not entitled to receive any goods under it on the relevant date. Under the second contract it could not be said that the suppliers were bound to deliver the goods by instalments or to supply at least 40,000 lbs. before December 15, as the contract with the suppliers was not produced before the Court. The appellant had failed to establish that it had an adequate contract to cover the contract in suit. It was not enough for the appellant to show that there was a chance of it fulfilling its contract with the respondent.

Bilasiram Thakurdas v: Gubbay (1915) I.L.R 43 Cal. 305 and Phoenix Mills Ltd. v. Madhavdas Rupchand (1916) 24 Born. L.R. 142, referred to.

CIVIL

APPELLATE

JURISDICTION: Civil Appeal No. 331 of 1956.

Appeal by special leave from the judgment and decree dated March 11, 1955, of the Bombay High Court iu Appeal No. 97 of 1954.

M. C. Setalvad, AttQ.rney-General for India and G. C.

Mathur, for the appellants.

Purshottam Trikumdas, S. N. f4ndley, J. B. Dadachanji and Rameshwar Nath, for the respondents.

1961. February 17. The Judgment of the Court was delivered by

3 8.C.R.

8UPREME COURT REPORT8 847

DAS GUPTA J.-This appeal is from a judgment of 19•1 the Court of Appeal of the Bombay High Court conc;;,, a Colton firming the decision of a single judge of th!l.t Court in ExPo•lers a suit for damages for breach of a contract of sale. v.

By a contract in writing dated August 9, 1950, entered Hehanlal into at Bombay, the appellantR who carry on business Humch"."" Cotto"

t B b . t d h t d Mills Ltd. a om ay as 1mpor an export mere an s agree to sell to the respondent, a company carrying on busiv,., Gup1a J. ness also at Bombay as a Cotton Spinning and Weaving Mill, and the respondent agreed to purchase 50,000 lbs. of Italian Staple Fibre Cotton of the quality mentioned therein, at Rs. 1,350/- per Candy Ex docks, Shipment October/November 1950. Of this quantity

10,000 lbs. was delivered to and accepted by the respondent company on October 31, 1950.

The balance amount of 40,000 lbs. not having been deli\'ered in terms of the contract the respondent company

brought the present suit for damages on the allegati;; n that the appellant firm had wrongfully failed and neglected tu deliver this balance amount of the contra.ct goods. The appellant admitted failure to deliver this amount; but pleaded that this was not wrongful failure to deliver. The appellant averred in its written statement that the non-supply of the goods arose by reason of the "intermediary parties (weaning thereby the suppliers) failing to supply and deliver goods to the defendant and also of the circumstances beyond their control"; and claimed that it was exempted from any liability to the plaintiff company under printed term 16 of the contract.

The defendant furLher pleaded that the shipment time mentioned in the contract was not guaranteed, and the time of shipment was not of the essence of the contract. The Trial Judge held that the shipment time was guaranteed, exceJ; lL in so far as delay in shipment might be due to delay in obtaining import licence-which however was in the present case obtained in good time-; that time of shipment was of the essence of the contract; and finally that there was no case here of any "intermediary parties" failing to supply or deliver the goods and as the defendant firm had not made any adequate contract which would have

848 SUPREME COURT REPowrs [1961]

'96' enabled it to obtain the supply of goods-if such

China Cottcu contract had not been broken-from which it could ro..p0,1.,, have delivered those 40,000 lbR. ; the fort her defence v. that the non-supply was due to "circumtn.nces he- B•h•rilal yond their control" also failed. Accordingly the Trial Ramcharau Cuttou Judge held that there had been wrongful breach of

Mills Ltd. the contract by the appellant firm anrl the plaintiff

Vas Gupta J. company-the respondent-was entitled to damages.

The actual assessment of damages was referred to the Commissioner.

On appeal by the defendant, the Appeal Court held agreeing with the Trial Judge that as there was no delay in obtaining the import licence, the obligation to deliver to the plaintiff contract goods of October

November shipment continued. The learned judges also pointed out that " the failure to give delivery primarily arose because the defendants never were ready and willing to carry out their obligation to give delivery because they had made no arrangement to get goods from Italy which they could have delivered at the contract time." Therefore, the Court of Appeal held that it was not open lo defendant to rely on any of the clauses in the contract which condones delay on their part or which excuses them from giving delivery. The appeal was accordingly dismissed.

It is against this order of dismissal that the present appeal has been preferred by the defendant firm after having obtained special leave from this Court.

Three contentions were raised before us in support of the appeal. The first contention is that the shipment date was not guaranteed; the second contention, which really is involved in the first, is that the sb'ipment time was not of the essence of the contrac'. ..

Lastly, it was urged that the contracts which the defendant firm had made with its Italian suppliers, were adequate for their obtaining supplies in good time to enable them-if these contracts were not brokento complete the requisite deli very to the plaintiff company in proper time.

The contract was on a printed document, with the terms regarding quantity, quality, price, shipment, payment, and the remarks column filled in manuscript.

Against Shipment-we find "October/November, 1961

1950. " In the remarks column we find the following written : "1. Invoice weight to be accepted; 2. This China Cotton

l:'x porteYS contract is subject to import licence and therefore the v shipment date is not guaranteed." Rclmilal We find thus that whatever may have been said Ram, haran Co1t0> earlier in the printed portion of the contract the Mills Ud. parties took care, after specifying "October/Novemk d fi nas.r."pta ]. ber, 1950" as the date of shipment to ma e a e nite. condition in the remarks column, on the important question whether the shipment date was being guaraT!teed or not and if so, to what extent. The words are: "This contract is subject to import licence, and therefore the shipment date is not guaranteed." Remembering, as we must, that in commercial contracts, time is ordinarily of the essence of the contract and giving the word " therefore " its natural, grammatical meaning, we must hold that what the parties intended was that to the extent that delay in shipment stands in the way of keeping to the shipment date October/November, 1950, this shipment date was not guaranteed; but with this exception shipment Optober/November, 1950, was guaranteed. It has been strenuously contended by the learned Attorney- General, that the parties were mentioning only one of the many reasons which might cause delay in shipment and the conjunction "therefore" was used onlJ to show the connection between one of the many

res?ns-by way of illustration and a general agreement that the shipment date was not guaranteed. We '.,_do not consider this explanation of the use of " there-

. fore " acceptable. If the parties intended that quite

apart from delay in obtaining import licence, shipment date was not guaranteed, the natural way of expressing such intention-an intention contrary to the usual intention in comnwrcial contracts of treating time as the essence of the ctintract-would be to say : "This contract is subject to import licence and the shipment date is not guaranteed." There might be other ways of expressing the same intention, but it is only reasonable to expect that anybody following the ordinar, r rules of grammar would not µse "thereforp "

SUPRE~E COURT REPORTS [1961)

r~6r in such a context except to mean that only to the extent that delay was due to delay in obtaining import China C(l/fnn F.xpa''"" licence shipment time was not guaranteed. v.

As we have already mentioned, the remarks column neha.ilal was filled in manuscript and consequently even if the llamch"a" Catton terms in print by themselves might have justified a

Mil/, Ud. conclusion that the parties intended that the shipment date was not guaranteed, the intention expresed in , r"(I,<; r:11pJa }. the manuscript should prevail. We are not satisfied however that the terms in print would justify any such conclusion.

The learned Attorney.General tried to persuade us that the printed term 2 was inconsistent with shipment date being guaranteed at all. The term 2 is in two parts. The first part provides that subject to provisions of els. 7 and 9, " if the goods or any portion of them are not shipped for any reason or reasons other tha.n those specified in cl. 9, within the shipment time with the fifteen days latitude provided for in the said clause 7, the sellers shall not be responsible but shall give notice to the buyers of such non-shipment and the buyers shall have option to cancel the portion so overdue without claiming any allowance or compensation or grant such extension of time for shipment from time to time as may be required by the sellers " at allowance as mentioned in the second paragraph. The second paragraph of term 2 lays down graduated rates of allowance for different periods of delay: at I!% for delay up to a month; at 2!% for delay from one month to two months; 3!% for delay of two to three months and 7!% for delay of more than three months.

Different rates were mentioned as regards the woollen goods.

It may be mentioned here that cl. 7 of the contract provides for a latitude of 15 days after the shipment while cl. 9 contains the special exemption clause where shipment is delayed by, force rnajeµre, war or warlike operations, strikes, lock-outs, etc. The learned AttOf

nay-General contends that provisions of term 2 show that the parties agreed that the time will not be of the essence of the contract and shipment time will not be guaranteed. It appears to us that these provisions show just the contrary. The proviHions in the first •

paragraph give the seller a right to give notice to the '96' buyer of non-s11ipment and give the buyer an option Chi•• Cotton on such notice either to cancel the portion not shipped Exporters or to grant extension of time at allowances mentioned •. in the second pttragraph. Unless time was of the Beharilal essence of the contract and shipment time was Ramcharan Collon guaranteed there would be no need for making such Mills Lid. provisions for an option for extension of time, or for Das Gupta J. these allowances.

The provisions of els. 7 and 9 do not affect the question.

We are therefore of opinion that the courts below were right in thinking that the shipment time was guaranteed, and time was of the essence of the contract. , This brings us to the question whether the defendant firm had any adequate contract with their Italian suppliers which if not broken would have put them in a position to supply the goods in question. It is not disputed that if there was any such adequate contract the defendant will not be liable for damages. It is equally clear that if there was no such contract, the defendant cannot escape liability.

The learned Attorney-General sought to argue that even if the contract was such that there was a chance of the defendant obtaining the supplies in good time that would be sufficient to exonerate it. We think that this proposition is not sound. Before the seller could be heard to say that the non-supply was due to default on the part of his suppliers or some other cause beyond his control the seller is bound to show that he himself did all in his power to ensure timely supply.

He could do so by showing that he had made a contract under which he was entitled to obtain the supplies in good time. If under his contract with his own suppliers he was not so entitled but there was merely a chance of his getting the supplies in time to enable him to honour his contract the non-supply would clearly be due to his own default in not making a contract which would have so entitled him and not to a default on the part of the supplier or to a circumstance beyond his control,

r96r Turning now to the facts of the case we find that the defendant had made two contracts with its China Cotton Italian suppliers-one contract for 200,000 lbs. of Exporlers

v. cotton for August, 1950, shipment whfoh it is said was Beha, ilal later extended to September, 1950; another contract Ramcha.an Cotton of August 4, 1950, for 300,000 lbs. for November J Mills Ltd.

December, 1950. The defendant had also a contract Das;;;;,. 1. with the plaintiff company of July 22, 1950, for sale of 40,000 lbs. August shipment-later converted to November/December shipment. In October, 1950, 50,000 lbs. out of the first contract with the Italian suppliers arrived ; out of this 40,000 was delivered to the plaintiff company in satisfaction of the earlier contract and 10,000 was delivered in satisfaction of this second contract-the contract now in suit. Under the contract for 300,000 lbs. the buyer (the defendant) received 70,000 lbs. of goods. Of this nothing was given to the plaintiff company and so 40,000 lbs. remained undelivered. The question is had the defendant a contract under which it could, provided the contract was not broken, obtain the goods in time to honour its agreement to sell October/November shipment of goods.

The learned Attorney-General complains that the courts below totally left out of consideration the sellers' (the appellants') earlier contract with Italian suppliers and says that that, at least, was an adequate contract. There would be force in this argument if at the time the breach took place, that is, the last date under which shinment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September; so that at the time of the breach the seller was not entitled to receive any goods under that contract.

We come next to the seller's November/December shipment contract with its Italian suppliers. The courts below have pointed out that under Ruch a contrnct, the Italian suppliers were entitled to delay shipmeut till the last day of December .. If that, be the position the seller would not, on the last day by which

the goods under its contract ought to have been suprlied, viz., December 15, 1950, after adding 15 days China cotton under clause 7, have any contract under which it Exporters would have been entitled to receive goods in sufficient v •. time. The learned Attorney-General has however Beharilacl . d ,, d Ramcharan olloK conte'IJ.ded that under the contract w h1ch the eien - Mills Lid. ant had with its Italian suppliers the Italian suppliers would be bound to spread the supply over the period, Das Gupta J.

November/December and thus bound to ship 40,000 lbs. at least well before the December, 15.

The great difficulty in the way of this argument is that the defendants' contract with its Italian suppliers has not been produced and we do not know the terms of that contract. In Bilasiram Thakurdas v. Gubbay (') from which the learned counsel sought assistance the terms of shipment in the contract was "shi{}ment.s to be made by steamers during July-December 1914 -shipment in any month by one or more steamers." This was clearly an instalment contract and on the construction of that contract the court held that the buyer had the right to demand delivery of goods by separate shipments spread over the months from July to December. In Phoenix Mills Ltd. v. Madhavdas Rupchand (')the question arose whether the plaintiffssellers had committed a breach by not giving delivery where the terms of deli very were : " 200 bales No. 20s and 20!s Ring October-November 1913 and 50 bales No. 6!sMule yarn as manufactured". It was further mentioned in the contract that the buyers agreed to take delivery of the bales from time to time as they are ready. It was in view of these terms that Mr.

Justice Macleod held that " the Court can only consider the parties to have intended, when they signed that contract, that delivery should be asked for and given during October-November of two hundred bales, delivery being asked for of reasonable quantities at a time during the period of delivery."

These decisions are in line with the English law in this matter as stated by Benjamin on Sale, 8th Edition, at P- 724 thus:-

" Where the amount of instalments is not specified, the prima facie rule would seem to be that the

(I) (1915) I.L.R. 43 Ca!.305

(2) (1916) 24 Born. L.R. 142.

1961 deliveries should be rateably distributed over the contra.ct period." China Colton

Exp°'''" The learned author goes on to say that "if it can v. be gathered from the terms of the contract or the cir-

B•1••rilal cumstances that rateable deliveries were not intended,

amch_aran Cotton it then becomes a question for the jury whether the

Mill! Ltd. d f d d ,. d }' . bl ten er o or eman ior, e 1 very 1s a reason a e

Das Gupta].

One.,,

Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendant's contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendant's Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendant's Italian suppliers would be bound to spread the supply over the period October/November, 1950.

There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.

The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods.

The appeal is accordingly dismissed with costs.

Appeal dismissed.

S 845

Government of India

September 30, 1946

Union of India

Se.ptember 30, 1946

August 9, 1950

China Cotton

December 15, 1950

M. C. Setalvad

G. C.

Mathur

Purshottam Trikumdas

S. N. f4ndley

J. B. Dadachanji

Rameshwar Nath

DAS GUPTA

Bombay

October 31, 1950

Ramcharau Cuttou

Vas Gupta J. company

Italy

cl. 9

clause 7

cl. 7

cl. 9

Ramcharan Collon

Das Gupta

August 4, 1950

July 22, 1950

clause 7

Macleod

Benjamin

Mill! Ltd.


3 S.C.R.

SUPREME COURT REPORTS 855

THE CUSTODIAN OF EVACUEE PROPERTY,

BANGALORE v.

KHAN SAHEB ABDUL SHUKOOR, ETC.

(P. B. GAJENDRAGADKAR, A. K. SARKAR,

K. SuBBA Rao, K. N. WANCHOO and K. C. Das GUPTA, JJ.)

Evacuee property-Order passed by Custodian-State law providing for appeal to the High Court-Later State Act and Central

Act repealing it and providing for appeal and power of revision to Custodian-General-Proceedings taken under the earlier State Act- Custodian-General setting aside the Custodian's Order under revision

-Validity-Appeal to High Court-Maintainability-The Mysore

Administration of Evacuee Property (Emergency) Act, .{949 (XLV II of r949), ss. 5, 6, 8, 30-Evacuee Property (Second) (Emergency)

Act, z949 (LXXIV of r949), ss. 22, 23, 25-Administration of Evacuee Property Act, r950 (XXXI of z950), s. 27-Constitution of India, Art. 226.

On July 7, 1949 the then State of Mysore passed the Mysore Administration of Evacuee Property (Emergency) Act, I949 providing, inter alia, for the appointment of a Custodian of Evacuee Property for the State of Mysore for the purpose of administering evacuee property in the State. By s. 6 all evacuee property vested in the Custodian under s. 5 had to be notified by him in the Mysore Gazette, while s. 8 provided that any person claiming any right to any property notified under s. 6 might prefer a claim to the Custodian on the ground that the property was not evacuee property. Section 30 provided for an appeal to the High Court where the original order under s. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act,

1949 which came into force on November 29, 1949 Section 53(2) of that Act provided that anything done or any action taken in the exercise of any power conferred by the earlier Act shall be deemed to have been done or taken in the exercise of the powers conferred by the later Act. Under the second Act, instead of the High Court an appeal from the order of the Custodian lay to the Custodian-General, appointed by the Government of India under the provisions of the Administration of Evacuee Property Ordinance, 1949, which had come into force on October 18, 1949 ; and in addition, s. 25 of that Act. provided for revision by the Custodian-General of orders passed by the Custodian. The Administration of Evacuee Property Act, 1950, which was passed by Parliament and which came into force on April 17, 1950, provided substantially for all matters contained in the second

I96I

February 10

I96I Mysore Act. Section 27 gave the Custodian-General powers of revision against the orders of the Custodian, ands. 58 as amended Custodian of and given retrospective operation, provided that " if, immediate- Evactm Propeity, ly before the commencement of this Act, tl, iere was. in force in

Bangalore any State to which this Act extended any law which corresponded v. to this Act and which was not repealed ..... ; ... that corresponding Khan Saheb Abdul law shall stand repealed."

Shukoor On September 21, 1949, the Custodian issued. a notification declaring the properties of the respondents as evacuee properties, and claims filed by them under s. 8 of the earlier Mysore Act were investigated by the Deputy Custodian who dismissed the same on April 17, 1950. Appeals were filed against the said order before the Custodian and were allowed on August 22, 1950, on the ground that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated as evacuee properties. On October 3, 1950, the Custodian-General gave notice to the respondents under s. 27 of the Administration of Evacuee Property Act, 1950, in respect of the order of the. Custodian dated August 22, 1950, and asked them to. show cause why the said order be not revised. On February II, 1952, the Custodian- General set aside the order and directed the Custodian to dispose of the cases afresh. On December 2, 1952, the Custodian passed an order by which he held that the respondents were evacuees and that their properties were evacuee properties. Against this order the respondents filed two appeals to the High Court, and also two writ petitions under Art. 226 of the Constitution as they had doubts whether any appeal lay to the High Court. The High Court took the view that the Custodian-General had no power under s. 27 of the Act to revise the order of the Custodian and that as the proceedings in these cases began under s. 8 of the first Mysore Act and as there was nothing corresponding to that section either in the second Mysore Act or in the Act of 1950, the High Court was entitled to hear the appeal from the order of December 2, 1952, as that order must be held to have been passed in proceedings under the first Mysore Act. The High Court then went into the matter as an appellate court and came to the conclusion that the order of the Custodian dated December 2, 1952, was erroneous.

Held, that the High Court erred in holding that the order of the Cust'odian-General dated February rr. 1952, was without jurisdiction. Considering the purpose for which the Administration of Evacuee Property Act, 1950, was passed and the successive saving clauses in the second Mysore Act and in the Act, the Custodian-General had the power under s. 27 to call for the record of the proceeding in which the order of August 22, 1950, was passed and consider :ts legality or propriety.

Held, further,, that the High Court was also in error in holding that appeals to it lay from the order of December 2, 1952.

An order made in a proceeding commenced under s. 8 of the r96r first Mysore Act must be deemed to be an order made under s. 5(1) of the second Mysore Act or under s. 7(1) of the Act, in Custodian of view of s. 53(2) of the second Mysore Act ands. 58(3) of the Act. Evacuee Prop"'Y Consequently, by necessary intendment, the legislature must have Bangal01'e intended that the provision as to appeals provided by subsequent v. legislation should supersede the provisior, as to appeals under the Khan SahebAbdul first Mysore Act.

Shukoor Garikapatti Veeraya v. N. Subbiah Choudhury [1957] S.C.R. 488, referred to.

Since the main question for decision in these cases was whether the respondents were evacuees, and as such a question was one of fact, the High Court was not justified in looking into the order of December 2, 1952, as an appellate court in dealing with applications for a writ of certiorari under Art. 226 of the Constitution.

Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others [1955] 1 S.C.R. 1104, applied.

CIVIL

APPELLATE

JURISDICTION: Civil Appeals Nos. 101to104 of 1957.

Appeals from the judgment and order dated February 4, 1954, of the Mysore High Court in Regular Second Appeals Nos. 5 and 6of1953 and Writ Petitions Nos. 67 and 68 of 1953 respectively.

H. N. Sanyal, Additional Solicitor-General of India, R. Ganapathy Iyer and D. Gupta for the appellant.

A. V.

Viswanatha Sastri, M. S. K. Sastri and T. R. V. Sastri for A. G. Ratnaparkhi, for the respondents.

1961. February 20. The Judgment of the Court was delivered by

WANCHOO, J.-These are four appeals on certifi- Wanchao J. cates granted by the Mysore High Court. They will be disposed of together as the points raised in them are common. The facts of these cases are complicated and may be mentioned in some detail. On July 7, 1949, the then State of Mysore passed The Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949 (hereinafter called the first Mysore Act). It provided for the appointment, of a Custodian of Evacuee Property for the State of Mysore and other officers subordinate to him for the purpose of administering evacuee property in that

'96' State. Section 2(c) defined an "evacuee" and s. 2(d)

Custodian of "evacuee pro pert}'. ". Se_ction 5 laid down tht all faacu" Propertv. evacuee property situate m Mysore would vest m the Bangalore Custodian. Section 6 provided for a notification by

v. the Custodian in the Mysore Gazette of evacuee pro- Khan Saheb Abdul perty vested in him.

0Section 8 provided that any Shukoor

J . . . ht t . t . person c a1mmg any ng o or m erest m any pro-

Wauc!wo ;. perty notiffed under s. 6 as evacuAe property or in respect of which a demand requiring a surrender of possession had been made by the Custodian might preft>r a claim to the Custodian on the ground that the property was not evacuee property or his interest in the property had not been affected by th.e provisions of that Act. It was further provided that the Custodian was to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order (stating the reasons therefor) either rejecting the claim or allowing it wholly or in part. Finally, s. 30 provided for an appeal to the High Court where the original order under s. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act remained in force till it was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the second Mysore Act), which came into force on November 29, 1949.

On September 21, 1949, the Custodian issued a notification by which he declared the properties of the two respondents as evacuee properties which had vested in him, as the respondents had become evacuees. Thereupon two claims were filed under s. 8 of the first Mysore Act separately by the two respondents. These claims were investigated by the Deputy Custodian who dismissed the same on April 17, 1950, declaring that the properties were evacuee properties.

It may be mentioned that in the meantime, the second Mysore Act had come into force by which the first Mysore Act was repealed. But s. 53(2) of the second Mysore Act provided that. anything done or any action taken in the exercise of any power conferred by the first Mysore Act shall be deemed to have been done

or taken in the exercise of the powers conferred by the '96' second Mysore Act. It was also provided that any Custodian of penalty incurred or proceeding commenced under the Evacu" Proporty, first Mysore Act shall be deemed to be a penalty incur- Bangalore red or proceeding commenced under the second Mysore v.

Act as if the latter Act were in force on the day on Khan Saheb Abdul which such thing was done, action taken, penalty Shukoor incurred or proceeding commenced. There was howwanchoo J. ever one difference in the two Mysore Acts.

The first Mysore Act had provided by s. 5 for the vesting of all evacuee property situate in Mysore ipso facto in the Custodian; s. 6 then provided for notific.ation by the Custodian and s. 8 for preferring claims. The second Mysore Act however made a departure from this and s. 5 thereof provided that-

" where the Custodian is of opinion that any property is evacuee property within the meaning of this Act he may, after causing not ice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit,. pass an order declaring any such property to be evacuee property." Section 6 then provided for vesting of any property declared to be evacuee property in the Custodian.

Thus while under the first Mysore Act the evacuee property vested in the Custodian and the person who claimed that it was not evacuee property had to make an application under s. 8 and to get it declared that it was not evacuee property, under the second Mysore Act there was no vesting in the Custodian and the Custodian had to give a notice in the manner prescribed (if he thought any property to be evacuee property) and after hearing the persons interested to declare the property to be evacuee property ; and it was only thereafter that the property vested in him as evacuee property. Further, the second Mysore Act also defineq the "Custodian-General " as the Custodian-General of Evacuee Property in India appointed by the Government of India under s. 5 of the Administration of Evacuee Property Ordinance (Central Ordinance No. XXVII of 1949), which h11d come

i96r into force on October 18, 1949. Further there was a

C d . ' change in the forum of appeals and instead of the usto ian o1 H" l .

Evacuee Proputy, 1gh Court the appeal ay to the Custodian-General Bangolore from an order passed under s. 5 of the second Mysore v.

Act where the original order had been passed by the Khan Saheb Abdul Custodian, Additional Custodian or Authorised Deputy

Shukonr Custodian and in some cases lo the District J ndge

Wanchoo J. designated in this behalf by the Government under ss .. 22 and 23 of the second Mysore Act. In addition, provision was made by s. 25 of the second Mysore Act for revision by the Custodian-General of orders passed by the District , Judge or the Custodian on appeal.

It may be mentioned that the Administration of Evacuee Property Act, No. XXXI of 1950 (hereinafter called the Act), came into force on the day the Deputy Custodian passed the order dated April 17,

1950. It may also be mentioned that in the meantime the Constitution of India had come into force on January 26, 1950, and tho former. State of Mysore had become the new Part B State of Mysore under the Constitntion. The Act was to apply to the whole of India except the States of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir. Thus the Act applied to the Part B State of Mysore on April 17, 1950, and though there was no specific provision then in the Act repealing the second Mysore Act it is not seriously disputed that the Act by necessary implication repealed the second Mysore Act, as the Act substantially enacted . all that was contained in the second Mysore Act. However that may be, appeals were filed against the order of April 17, 1950, before the Custodian. These appeals were allowed on August 22, 1950. The Custodian held that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated aR evacuee properties. On October 3, 1950, the Custodian.

General gave notices to the respondents under s. 27 of the Act in respect of the order of the Custodian dated August 22, 1950, and asked them to show cause why the said order of the Custodian be not revised. On December 7, 1950, the Administration of Evacuee

3 S.C.R.

SUPRBME COURT REPOI:tTS 861

Property (Amendment) Act, No. LXVI of 1950, was 1961

passed ?Y which ier alias. _5_8_ of the_ Act was amend- Custodia• of ed and 1t w11s provided that ii unmed1ately before the Eva'"" p,0perty,

commencement of the Act there was in force in any Bangalo" State to which the Act extended any law which corresv. ponded to the Act and which was not repealed by Khan _Saheb Abdul sub-s. (1) it shall stand repealed.

This was made Shukoo' retrospective from the date from which the Act came Wan, hoo J. into force (namely, April 17, 1950) and so the repeal of evacuee property laws which were in force in those States to which the Act applied which was implicit in it was made explicit from December 7, 1950, so that frvm April 17, 1950, only the Act held the field~· .,.,., .

On February 11, 1952, the Custodian-General set aside the order of the Custodian dated August 22, '

1950, ttnd ordered that further prnceedings in these cast"s should be taken before the Custodian as an original matter and he was directed to dispose of the cases afresh in the light of the. evidence already recorded and such other evidence as might be produced before him by the two respondents. When the matter thus came back to the Custodian he ordered the Deputy Custodian on April 7, 1952, to record the evidence and then submit the record to him for final disposal. Eventually, the matter came before the Custodian for final disposal on December 2, 1952. He held that the two respondents were evacuees and their properties were evacuee properties. This was followed by two appeals to the High C<mrt on January 2, 1953.

As, however, the respondents fdt some doubt whether any appeal lay to the High Court two writ petitions were also filed on September 7, 1953, against the order of the Custodian. The two appeals as well as the two writ petitions were disposed of by the High Court by a common judgment on"February 4, 1954. The High Court held that the appeals before it were competent.

It further seems to have held that the Custodian-

General had no power under s. 27 of the Act to revise the. orcfer passed by the Custodian on August 22, 1950.

Finally, as the High Court held that the appeals were

competent it went into the matter as an appellate court, and came to the conclusion that the order of the

862 SDPR.li:M:E COURT REPORTS [1961]

Custodian dated December 2, 1952, was erroneous. It, custodian of therefore, allowed the appeals as well as the writ Evuuee Property, petitions and set aside the order of the Custodian

Bangalore dated December 2, 1952, and restored the earlier order

Khan Sa:eb Abdul fllthe Cdustodlian ated bAuguhst c22, 19d50.

Tf hEereupon Shukoor io owe app 10at10ns y t. e usto 1an o vacuee Property, Mysore, for certificates to file appeals to Wanchoo J. this Court on which the High Court granted the certificates, and that is how the four appeals have come up before us.

The main contention of the learned Additional Solicitor-General on behalf of the appellant is twofold.

He urges firstly that the High Court was in error when it held that the Custodian-General had no power to set aside the order of August 22, 1950, under s. 27 of the Act. In the second place, his contntion is that the High Court was in error in holding that an appeal lay to it from the order of the Custodian dated December 2, 1952. Therefore, the High Court could not deal with the matter before it as if it were hearing an appeal; it could only consider the writ petitions before it and in doing so it would not be justified in issuing a writ of certiorari against the order of December 2, 1952, because that order was nqt passed without jurisdiction and there was no error of law apparent on the .face of the record to call for interference with it. Mr. Sastri for the respondents in reply submits that as the proceedings in these cases began under s. 8 of the first Mysore Act and as th(lre was nothing corresponding to that section either in the second Mysore Act or in the Act, which replaced smicessively the first Mysore Act, the High Court was entitled to hear an appeal from the order of December 2, 1952, as that order must be held to have been passed in a proceeding under the first Mysore Act, even ifit be that the Custodian-General had the jurisdiction to set aside the order of August 22, 1950, under s. 27 of the Act. Further, Mr. Sastri contends that the Custodian-General had no jurisdiction to set a.side the order of August 22, 1950, under s. 27 of the Act.

The first point therefore which falls for considera- 1961 tion is w?ether the Custodian-General had jurisdiction Custodian of to set aside the order of August 22, 1950, under s. 27; Evacuee P•operty, for if he had no such jurisdiction the High Court may Bangalore be entitled after holding that the Custodian-General's v. order of February 11, 1952, was without jurisdiction, Khan Saheb Abdul t t 'd II b d.

I . th Shukoor o se as1 ea su sequent procee mgs, eavmg e order of August 22, 1950, operative and in full force wanchoo J. (assuming for this purpose that the High Court had jurisdiction in writ proceedings to set aside the order of the Custodian-General whose headquarters were in New Delhi).

Now the first Mysore Act had no provision relating to the Custodian-General. It was the second Mysore Act which for the first time brought in the Custodian- Genera.l and gave him powers of revision under s. 25 with respect to orders passed by the Custodian or the District Judge in appeal. Then came the Act on April 17, 1950, by which the Custodian-General was given the power to call for the record of any proceeding in which any District Judge or Custodian had passed an order for the purpose of satisfying 'himself as to the legality or propriety of any such order and to pass such order in relation thereto as he thought fit.

This provision is wider than the provision in the second Mysore Act and is not confined to orders passed by a District Judge or a Custodian in appeal and would apply even to original orders passed by the Custodian, which term, according to the definition in s. 2(c) includes any Additional, Deputy or Assistant Custodian of evacuee property. We have already pointed out that the Act provides substantially for a.II matters contained in the second Mysore Act and therefore must be held to have repealed the second Mysore Act by implication.

But in any case the question whether the second Mysore Act was repealed by the Act when it came into force on April 17, 1950, has been set at rest by the later Central Act, LXVI of

1950. That Act was passed on December 7, 1950, and s. 2 thereof began thus:

"For section 58 of the Administration of Evacuee Property Act, 1950, the following section shall be

substituted, and shall Le deemed always to have

Custodian of been substituted." Evacuee Property, This clearly shows that Central Act LXVI was Bangalore amending s. 58 retrospectively from the date on which v. it came into force (namely, April 17, 1950).

The new K!iaft Saheb Abdul 58 h" h h b d A f Sh k s. w 1c was t us su st1tute Ill the ct rom

" 00 ' April 17, 1950,. contained sub-a. (2) which is as

W anchoo J. follows :-

"If, immediately before the commencement of this Act, there is in force in any State to which Lhi8 Act extends any law which corresponds to this Act and which is not repealed by sub-section (1), that corresponding law shall stand repealed." It is clear therefore that the second Mysore Act was expressly repealed as from April 17, 1950, by the Act in view of this substituted s. 58 put into it retrospectively by Act !; XVI, for the second Mysore Act was undoubtedly a law corresponding to the Act. The High Court seems to have overlooked the fact that Act

LXVI gave retrospective operation to the new s. 58(2) which was inserted in the Act. It seems to think that the second Mysore Act was repealed on December 7, 1950, when Act LXVI came into force.

The High Court was further in error in holding that the amended sub-s. (3) of s. 58 which was put into the Act also came into force from December 7, 1950, while as a matter of fact it c<1.me into force from April 17, 1950,

when the Act itself first came into force.

The position when the Custodian-Genera.I gave notice in October, 1950, under s. 27 of the Act therefore was that the first Mysore Act had already been repealed by the second Mysore Act and the second Mysore Act had been repealed by the Act as from April 17, 1950, and therefore in October, 1950, only the Act held the field. The question then arises whether it was open to the Custodian-Genera.I to revise the order dated August 22, 1950, under s. 27 of the Act in February, 1952. Nows. 27 is very wide in terms and gives power to the Custodian-Genera.I at any time either on his own motion or on application made to him in this behalf to call for the record of any proceeding in which any District Judge or Cust.odian

has passed an order for the purpose of satisfying 1961 himself as to the legality or propriety of any order Custodian of and to pass such order in relation thereto as he thinks Evacuee Property. fit.

Prima facie, therefore, these wide words give Bangalore power to the Custodian.General to revise any order v.

Passed by the Custodian. It is urged on behalf of the J(han Saheb Abdul

h d.

G l Id t Shukoor respondents that t e Custo 1anenera cou no revise the orc!rr dated August 22, 1950. We are not wanchoo 1. impressed by this argument. Now the Act was pasrnd in 1950 to set up a central organisation for the custody, management and control, etc., of property declared by law to be evacuee property with the Custodian-General at the head. It is also clear that all siilar laws existing in various States on the date the Act came into force (namely, April 17, 1950) were repealed by it. The intention of the Legislature obviously was to provide for the custody and management etc. of evacuee property in the manner provided in the Act with the Cuetodian-General as the head of the organisation. Further, action taken with respect to evacuee property under the first Mysore Act was deemed under s. 53 (2) of the second Mysore Act to have been taken thereunder and finally any action taken in the exercise of the power conferred by the second Mysore Act was deemed to have been taken in the exercise of the powers conferred by the Act.

Therefore, any action taken with respect to evacuee property and any order passed by any Custodian in any proceeding with respect to such property would be subject to the revisory jurisdiction of the Custodian.

General under s. 27 in view of the wide language thereof and the fact that proceedings started under the first Mysore Act would not, in our opinion, make any difference to the power of: the Custodian-General under s. 27.

Obviously the order of August 22, 1950, was passed when the Act was in force in a proceeding relating to evacuee property by the Custodian and the Custodian-General would be competent under s. 27 to call for the record of that proceeding and satisfy himself as to the legality or propriety of any such order and thereafter pass such order in relation thereto as be thou$ht fit. \, Ve are, therefore, of opinion that

1961 considering the purpose for which the Act was passed

Custodian of and the s?ccessive saving clauses in the second Mysore Evacuee Prop.,1y, Act and m the Act, the Custodian-General had the

Bangalore power under s. 27 to call for the record of the proceedv. ing in which the order of August 22, 19.50, was passed Khan Saheb Abdul and consider its legality or propriety and nass such Shukoor order in relation thereto as he thought fit.· Even if

wan, hoo J. the notice of October, 1950, may be open t.o question as it was issued before Act LXVI of 1950 was passed, there can be no doubt that the order of February, 1952, under s. 27 was passed after hearing the parties and would be valid and within the jurisdiction of the Custodian-General when it was passed. Therefore, the order of the Custodian-General dated February 11, 1952, being within his jurisdiction would not be liable to be set aside on a writ of certiorari as if the Custodian-General had acted without jurisdiction. The subsequent proceedings, therefore, which took place after the order of the Custodian-General would also be with jurisdiction and would not be liable to be set a.side on a writ of certiorari on the ground that they were without jurisdiction. The High Court, therefore, was in error in holding that the order of the Custodian.

General dated February 11, 1952, was without jurisdiction and therefore all subsequent proceedings taken in pursuance thereof were also without jurisdiction, with the result that the order of August 22, 1950, stood fully operative This brings us to the next question whether any appeal lay to the High Court against the order of December 2, 1952. There is no doubt that the proceedings in the present case commenced under the first Mysore Act with a notification under s. 6 and claim applications under s. 8. If the original proceedings had finished when the first Mysore Act was in force and the order of December 2, 1952, had been passed during its operation there would undoubtedly have been an appeal to the High Court under s. 30 thereof. But the first Mysore Act was repealed lly the second Mysore Act in November, 1949, and the second Mysore Act was in its turn repealed by the Act as from April, 1950.

The question, therefore, that arises for consideration

38.C.R. 867

is whether after the repeal of the first Mysore Act an 1961 appeal would still lie to the High Court from the order . of December 2, 1952. The main contention of Mr. Sastri Cusfod••n °1 in this behalf is that if the second Mysore Act or the Evacuee P, operty, Bangal01'e Act contained provisions which were similar to the v. provisions contained ins. 8 of the first Mysore Act, it [(kan Saheb Abdul may have been possible to say that the remedy provid- Shukoor ed by the first Mysore Act under s. 30 had been superseded by the remedy provided in the Act, that Wanchoo f. remedy being an appeal to the Custodian-General under s. 24 of the Act. The argument further proceeds that neither the second Mysore Act nor the Act provides anything similar to what was provided by s. 8 of the first Mysore Act. Therefore, even though the first Mysore Act was repealed by the second Mysore Act the proceedings in the present case must be deemed to be still under the first Mysore Act which must be deemed to be existing for this purpose and, therefore, the right of appeal being a vested one and a.rising when the proceedings commenced, there would still be a right of appeal under s. 30 of the first Mysore Act in spite of its being repealed. When the matter ca.me before the Custodian in 1952 it was contended before him that the proceedings should be taken to be under the first Mysore Act. He accepted this contention, though he added that it was immaterial for the purposes of the present cases as the definition of "eva.cu"1l" in s. 2(c) of the first Mysore Act was practically the same as in s. 2(d) of the Act. It is urged that in view of the manner in which the Custodian dealt with the case when he passed the order dated December 2, 1952, the proceedings before him must be taken to be under the first Mysore Act and if so an appeal would lie to the High Court under s. 30 of the first Mysore Act. This view has been accepted by the High Court also and that is why it held that the appeals before it were competent; and it is the correctness of this view which has been challenged before us.

Now there is no doubt that the right of appeal is a. substantive right and a.rises when a. proceeding is commenced and cannot be ta.ken a.way by subsequent

legislation, except by express provision or necessary custodian of intendment. There is no express provision in the Evacuee Property. present case taking away the right of appeal conferred

Bangalo" by the first Mysore Act.

We have therefore to see v. whether it can be said that the right of appeal con- Khan s~·~•b Abdul ferred by the first Mysore Act has been taken away by

00 ' necessary intendment by the subsequent legislation;

wanckoo J. and if so whether it has been completely taken away or has been replaced by anuther right of appeal, thongh not to the High Court. Under the first Mysore Act, as we have already pointed out, evacuee property ipso facto vested in the Custodian under s. 5. Thereafter the Custodian was expected to notify such property under s. 6.

On such notification or where the Custodian demanded surrender of possession, a person claiming any right to the property was entitled to make an application preferring a claim before the Custodian.

That application was dealt by the Custodian in a summary manner and he had the power either to reject the application or allow it in whole or in part. An order passed by the Deputy or the Assistant Custodian under s. 8 was appealable to the Custodian ahd an order passed by the Custodian or Additional Custodian or an authorised Deputy Custodian was appealable to the High Court. The contention on behalf of the respondents is that when the first Mysore Act was replaced by the second Mysore Act, there was a vital change in the procedure a.hd therefore cases in which proceedings had commenced under s. 8 could only be dealt with under 'the first Mysore Act and for that purpose the first Mysore

Act would be deemed to be alive under s. 6 (e) of the Mysore General Clauses Act, No. III of 1899, which corresponds to s. 6 (e) of the General Clauses Act, No. X of 1897. Now there is no doubt that the proceedings in these cases commenced under the first Mysore Act though they terminated when that Act was no longer in force.

What we have to . see is whether there is anything in the repealing legislation whfoh by necessary intendment took a.way the right of appeal provided by the first Mysore Act and substituted In its place another right of appeal provided by the repealing Act,

The argument of Mr. Sastri is that there is nothing z961 in the second Mysore Act which repealed the first .

Mysore Act corresponding to s. 8 of the first Mysore E Custoap•anpof1 . . l f h fi i:acuee_ ro er y, Act and therefore m spite of the repea o t e rst Bangalore Mysore Act proceedings commenced under s. 8 of that v.

Act would continue to be governed thereby, including Khan Sahib Abdul the right of appeal. In this connection he urges that Shukoor the scheme of the second Mysore Act with respect to

~ Wanchao ]. evacuee property is vitally different from the scneme which is to be found in the first Mysore Act. In the second Mysore Act there is no provision corresponding to s. 5 of the first Mysore Act by which any prnperty becomes ipso facto evacuee property and vests in the Custodian.

Under the second Mysore Act the Custodian has first to form a tentative opinion whether the property is evacuee property and after he has formed such opinion he gives notice thereof to the persons interested ; after such notice is given he holds inquiry into the ma.tter and thereafter passes an order declaring the property to be evacuee property.

Thus under the first Mysore Act the property became evacuee property ipso facto and the person claiming any interest in it had to proceed under s. 8 and make a claim which had to be investigated and thereafter the Custodian finally declared whether the property which he had notified under s. 6 was evacuee property or not. Under the second Mysore Act there being no vesting ipso facto, the proceeding commences with a notice by the Custodian to the person interested f<;>llowed by an inquiry after which the Custodian decides to declare. the property evacuee if he finds it to be so under the law. Further under the second Mysore Act when an order was passed declaring property to be evacuee property under s. 5 it was open to the person aggrieved by such order to file an appeal to the Custodian where the original order had been passed by the Deputy Custodian or Assistant Custodian and to the Custodian-General where the original order had been passed by the Custodian, Additional Custodian or Authorised Deputy Custodian.

T.here was also in certain cases appeal to the District Judge; but we a.re not concerned with that in the c

1961 present appeals.

The position under the Act was

Cuslolian of also the same as under the second Mysore Act and Evacuee Pyop .. 1y, the right of appeal was also similar.

Bangalor< It is thus true that there has been a change in the v. procedure by which evacuee property is finally

"nan5 ahkeb Abdu1declared to be evacuee property. Under the first

nu OOY M A h b __ ysore ct t e property ecame evacuee property wanchoo J. and the person had to go and file a claim and establish that it was not. That claim was investigated and after investigation the Custodian had to come to a final conclusion whether the property was evacuee or not. lf he came to the conclusion that it was evacuee property, the vesting under s. 5 was confirmed. If on the other hand he came to the conclusion that the property was not evacuee property the legal effect was that there was no vesting under s. 5 of the first Mysore Act.

Under the second Mysore Act the property did not ipso facto vest in the Custodian as evacuee property but he formed a tentative opinion as to whether it was evacuee property and then gave notices to the persons interested. They appeared before him and the matter was investigated. He then had to come to a final conclusion whether the property was evacuee property or not. If he came to the conclusion that it was evacuee property he declared it to be such; if on the other hand he ca.me to the conclusion that it was not evacuee property the proceedings came to an. end. It will be seen therefore on a comparison of the two procedures that though there is difference between the two, the difference is not of a

vital or substantial nature. In the one case the law started w!th the presumption that the property was evacuee property and the person interested had to go and make a claim and establish that it was not evacuee property and the matter had to be investigated and the Custodian finally had to come to the conclusion one way or the other. In the other case the law did not start with the presumption but only a tentative opinion was to be formed by the Custodian who gave notice to the person interested and the matter was then investigated and thereafter the Custodian had to decide finally one way or the other.

But in both cases the question whether the property tf/61

was evacuee property or not was investigated and it Custodian of was only after investigation that it could be finally Ev0<u" p,0p.,1y, said whether the property was evacuee property or Bangalore not. Therefore, though there may be an apparent . v. difference between what is provided by s. 8 in the Khan Sah•b Abdul

A d b . h d M Shukoo• first Mysore ct an y s. 5 m t e secon ysore Act as also by s. 7 in the Act, the difference is Watrchoo J. not material and it is only after investigation whether under s. 8 of the first Mysore Act, or under s. 5 of the second Mysore Act or under s. 7 of the Act that the Custodian comes to the final conclusion whether the property is evacuee property or not.

Under the circumstances it would not in our opinion be unreasonable to say that the investigation provided under s. 8 of the first Mysore Act and the subsequent remedies following on an order under s. 8 a.re in substance the same as the investigation provided under s. 5 of the second Mysore Act or s. 7 of the Act a.nJ the subsequent remedies following on an order thereon. We cannot, therefore, agree with the High Court that there is nothing in the second Mysore Act to correspond to s. 8 of the first Mysore Act and

therefore these proceedings which began under the first Mysore Act must continue to be governed by that Act in spite of its repeal by the second Mysore Aot.

As we have pointed out above the proceedings under s. 8 of the first Mysore Act are in substance equal to proceedings under s. 5 of the second Mysore Act and therefore proceedings commenced under the first Mysore Act must in view of s. 53(2) of the second Mysore Act, be deemed to be proceedings under s. 5 of the latter Act. Once that conclusion is rea.cheda.nd it seems to us that it is inevitable-it follows that a.n order ma.de , in a proceeding commenced under. s. 8 of the first Mysore Act must be deemed to be a.n order ma.de under s. 5(1) of the second Mysore Act or under s. 7(1) of the Aot. In this connection it is relevant to point out that it could not have been the intention of the Legislature to keep the first Mysore Act a.live for certain purposes for all time; the whole object of passing the subsequent Acts is plainly against such an assumption.

' 941 The next question that arises is whether the second C•sJodi•uof Mysore Act and the Act took away theright of appeal E-.1?, operiy, which lay to the High Court under the first Mysore

B°""""'• Act and substituted for it another right of appeal by v. necessary intendment. As we have already pointed KA"";:!o.Abdul out, there is no express provision either in the second Mysore Act or in the Act in this behalf.

But once W•••<AooJ. it is held that proceedings which commenced under s. 8 of the first Mysore Act must, when the second Mysore Act ca.me into force, be deemed under s. 53(2) thereof to be proceeding under s. 5(1) or when the Act ca.me into force be deemed under s. 58(3) thereof to be proceeding under s. 7(1) and must be continued under those provisions, it follows that the legis•

la.ture necessarily intended that a.II subsequent action following an order under s. 5(1) ors. 7(1) must be t:iken under the second Mysore Act or under the Act as the case may be. It could not have been intended by the legislature when it was expressly providing for appeal from an order undet s. 5(1) of the second Mysore Act or under s. 7(1) of the Act that a proceeding commenced under the first Mysore Act (which was equivalent to a proceeding under s. 5(1) or s. 7(1) should continue .to be governed in the matter of appeal by the first Myore Act. This is therefore in our view a case where by necessary intendment (though not by express provision) the legislature intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the firat Mysore Act.

We may point out that this is not a. case. where the right of appeal disappears altogether; all that hs.ppens is that where the order is passed by the Custodian the appeal lies to the Custodian-General in.stead of to the High Court. The legislature has provided another forum where the appeal will lie and in. the circumstances it must be held that by necessary, iutendment the legislature intended that forum almie to be. the forum where the appeal will lie and not the. forttm under the first Mysore Act. Reference in this C;)QQeetion may be ma.de to Garikapatti Veeraya. v.

I"' ;,

~ ; g; C.R. SUPREMEfCOURTi REPORTS

AT3

N., Bubbiah' Ohoudhury (1);:'\Yhere . this Court, held.i that .,.sz thevested right of a.ppeal•was a. ubstantive .right •ll:nd """'°""'•of :was governed by the .faw .preva1lmg1at.the .tirue of the E.-... Pr., m:y.

commencement of the suit and comprised all success..,.i.,, sive rights of appeal from.court to .court which really v. constituted one proceeding but added that such , right K,,.• :::,::., AWul oould be .. t:J.kenawayexpresslyor by necessary; innd~

ment. In the present cases we ,1ue . of. opin~OI).; that. w-. J. once proceedings under s. sn) of the first :Mysore .Act a Te held to be .similar to proceed in gs, under s, 5( 1 f of the.second Mysore Act ors. 7(1) .. of.the ct"it mu.st necessarily. follow. that. the legislature intendd that all subsequent proceedings .in the nature of. l!-ppeal, after the first Mysore Act pame to an end;. mµst. be.,_in the, forum provided. by the . subsequent . legislation.

We., are therefore of opinion, that the High Court was, in error in holding, that, appeals to it lay from .the order of December 2,. 11952. ., .. The result.of.the vie.'\\'., .we , have taken .. is that the High .Court Was not justified in looking into , the order of December 2, 1952, !1-8 an app¢11at~ court, though •i.t would be .. justified in scrutinizing that 9rder as if it was brought.before it.under, Art. 226 of he Con.stitution for :issue of a writ1 of cei; tiorari. The . .limit ofthe

jurdiction., of, the .High Cqurt .in isuing writsof certiorari.'was consider, ed , by this Court, in Ha:r, i fishn, u

Karnath y. Syed Ahmed shaque , and Others(') and, tlie following .four propositions were laid dow.n :-· ·

(1) Certiorari will be issued for correcting errors of jurisdiction ;

{2) Certiorari will .also be issued when the Court , or Tribunal acts. illegally. in tlie exercise of. its undoubted jurisdiction, as whe~ it decides withollt

,· , giving an opportunity to the. parties to be hba.rd, or

violates the principles of natural justice; . · (3). The court .issuing a writ of certiorari a!Jts in . exer<Jise .of a supervisory , a.n<, l not appellate juris- , dic, tion. One c9nsequen9e of this is that the 11aurt

.. will not review findings of fact reached by the

inferior court or tribunal, e.ven if they be erroneous; ( 4) An error in the decision or determination itself may also be amenable to a writ of certiorari if

l•l (1957J s.c.R. 488,

(1) (1955J 1 s.c.R. 110~.

874 SUPREME COU:ll.T REPORTS t1D61]

1¢ 1 it is a manifest error apparent on the face of the c, .. 1.,,10., of proceedings, e.g., when it is ba.s_ed on clear ignorance E.,.,_ Prop.,1y, or disregard of the provisions of!a. w. In other words, S..., olore it is a pa.tent error which ca.n be corrected by certio. •· rari but not a. mere wrong decision.

KAa. S•lllb Alnlul I th t. . t.h C t d' h d . . d' .

SAuA••• n e presen case, e us CY 1a.n a. 1ur1s 1ct1ofi -- to decide the matter once it is held that the Cnato.

Wa#C4oa J. dian-Genera.l ha.d jurisdiction to eet a.side the oder of August 22, l!l50. The ma.in question for decision in these ca.sea wa.s whether the respondents were eva.- cueed within the meaning of s. 2(c) of the first Mysore

Aot. The questions that fall for decision under s. 2(c) are questions of fa.ct a.nd a.a pointed out in Hari

Vishnu Kamath's case(') it is not open on a.writ pray. ing for certiorari to review findings of fa.ct i'ea.ched by an inferior court or tribunal even though they ma.y be erroneous. Further, unless there is a. pa.tent error of law there can be no interference by a writ of certiorari. While dealing with the writ petitions the main argument that appealed to the High Court wa.s that the Custodian-Genera.I . had no jurisdiction in revision to reopen the earlier proceedings a.nd in consequence a.ll subsequent proceedings were null 11.fid void. The High Court wa.s further aware of the fa.ct that the ordinary remedy of the respondents in these oases against the order of December 2, 1952, wa.s to appeal to the Custodia.n-Genet_a.l ufider s. 24 of the Act ; but a.s it wa.s of the view that the order of the Custodian-Genera.I under s. 27 wa.s without jurisdio. tion it held that it should interfere a.nd set aside the order of December 2, 19u2, which was also without jurisdiction a.nd restore that of August 22, 1950.. In the view we have lie.ken, the order of the Custodi&.n Genera.l was with jurisdiction a.nd therefore there .wa.s in our opinion no reason for the High Court to interfere in the exercise of its jurisdiction under Art. 226 of the Constitution with the order of December 2,

1952, a.s this is a. case where only a. writ of certiOrari could issue a.nd that is not justified in view of he deoieion in Hari Vi.shnu Kamath's case(').

(!I [•95'1 I $.C.R. 1104.

't I

L ,

We therefore allow the appeals, set aside the order 1961 of the High Court and restore that of the. Custodian Custodian of dated December ll, 1952 .. This of course will not take Evacuee Prop111y,

a.way the right if any of the. respondents to approach Bangalore the Custodian-General, for we ha-ve not <JOndered v. the merits of the order of December 2, 1952. In the KhanSahebAbdul

 f th' d t Shukoor circumstances o . 1s case we pass no or er as o costs.

Wanchoo ].

Appeals allowed.

SARDA PRASAD AND OTHERS

LALA JUMNA PRASAD AND OTHF.RS. (P. B. GAJENDRAGADKAR and K. C. DAs GuP'rA, JJ.)

Limitation-Execution-Decrre for joint possessic; i in favour of Hindu father and minor sons-Failure of father to exewte within the period of limitation-Right of sons; if barred-Indian Limitation Act, I908 (9 of z908), s. 7-Code of Civil Procedure, 1908 (5 of 1908);

0. ,3a, rr. 6, 7.

A decree dated September 2, 1938, in a suit for partition of joint Hintlu family property awarded a house to the share of one J and his lour minor sons. J failed to execute the decree. On November 23, 1949, an application wa; made by the appellants, the four sons of J, for execution of the decree stating that throe of them had been minors till then and one of them was still a minor and so no question of limitation arose. The respondent objected that the application was barred under s. 7 of the Indian Limitation Act. The appellants contended that s. 7 did not apply to a partition decree and thats. 7 was no bar as J conld not have given a valid discharge of the liability under the decree in view of the provisions of 0. 32 of the Code of Civil Procedure.

Hel1, that the application for execution was barred by limitation. J, the managing member of the family could have given a discharge of the liability under the partition decree by accepting JA)Ssession on behalf of his minor sons without their conseP.t and so time ran against them under s. 7 from the date of the decree.

Order 32, rr. 6 and 7 were no bar to J giving a discharge of the liability under the decree as it was neither a case of receipt of any money or movable property nor was there any question of entering into an agreement or compromise on behalf of the minors.

Ganesha Row v. Tuljaram Row, (1913) L.R. 40 I.A. 132, Parm.shwari Singh v. Ranjit Singh, A.LR. 1939 Pat. 33 and Letchmana Chetty v. Subbiah Chetty, (1924) I.L.R. 47 Mad. 920,

referred to.

F8bruary ao.

855

THE CUSTODIAN OF EVACUEE PROPERTY,

BANGALORE

THE CUSTODIAN OF EVACUEE PROPERTY, BANGALORE

KHAN SAHEB ABDUL SHUKOOR, ETC

P. B. GAJENDRAGADKAR

A. K. SARKAR

K. SuBBA Rao

K. N. WANCHOO

K. C. Das GUPTA, JJ.

ss. 5, 6, 8, 30

ss. 22, 23, 25

Administration of Evacuee Property Act

s. 27

Constitution of India

Art. 226

July 7, 1949

State of Mysore

s. 6

s. 5

s. 8

s. 6

Section 30

s. 8

November 29, 1949

Section 53(2)

October 18, 1949

s. 25

Administration of Evacuee Property Act, 1950

April 17, 1950

Section 27

The Administration of Evacuee Property Act, 1950

The Administration of Evacuee Property Act, 1950

Bangalore any State to which this Act

September 21, 1949

Shukoor On September 21, 1949, the Custodian issued.

s. 8

August 22, 1950

October 3, 1950

s. 27

February II, 1952

December 2, 1952

Art. 226

the Administration of Evacuee Property Act, 1950

the Administration of Evacuee Property Act, 1950

s. 27

s. 8

Mysore Act and in the Act

s. 27

s. 8

s. 5(1)

s. 7(1)

s. 53(2)

Art. 226

[1955] 1 S.C.R. 1104

H. N. Sanyal

R. Ganapathy Iyer

D. Gupta

A. V.

Viswanatha Sastri

M. S. K. Sastri

T. R. V. Sastri

A. G. Ratnaparkhi

WANCHOO

Wanchao

Mysore High Court

Section 2(c)

s. 2(d)

Section 6

Section 8

s. 6

s. 30

s. 8

s. 8

Mysore Act had come into force by which the first Mysore Act

s. 53(2)

Mysore Act had come into force by which the first Mysore Act

Mysore Act had come into force by which the first Mysore Act

Khan Saheb Abdul

howwanchoo

There was howwanchoo J. ever one difference in the two Mysore Acts.

s. 5

s. 6

s. 8

s. 5

Section 6

Thus while under the first Mysore Act

s. 8

India

s. 5

s. 5

s. 25

April 17,

1950

Constitution of India

January 26, 1950

Mysore

Assam

West Bengal

Tripura

Manipur

Jammu and Kashmir

s. 27

December 7, 1950

Khan _Saheb Abdul

February 11, 1952

August 22, '

1950

April 7, 1952

January 2, 1953

September 7, 1953

s. 27

Khan Sa:eb Abdul

Wanchoo

s. 27

Sastri

s. 8

Mysore Act or in the Act

2, 1952

s. 27

s. 27

s. 27

New Delhi

Now the first Mysore Act

s. 25

s. 2(c)

s. 2

section 58

s. 58

s. 58

Mysore Act was undoubtedly a law corresponding to the Act

s. 58(2)

Mysore Act was undoubtedly a law corresponding to the Act

Mysore Act was undoubtedly a law corresponding to the Act

s. 58

s. 27

s. 27

J(han Saheb Abdul

h

s. 53

s. 27

s. 27

s. 27

s. 27

August 22, 19.50

wan

s. 27

s. 6

s. 8

s. 30

first Mysore Act was repealed lly the second Mysore Act

Mysore Act was in its turn repealed by the Act

Sastri Cusfod••n

s. 30

s. 24

s. 8

s. 30

s. 2(c)

s. 2(d)

s. 30

Abdul ferred by the first Mysore Act

wanckoo

s. 5

s. 6

s. 8

s. 8

Mysore Act and for that purpose the first Mysore

s. 6

Mysore Act and for that purpose the first Mysore

Act

Mysore Act and for that purpose the first Mysore

Act

General Clauses Act

s. 6

General Clauses Act

s. 8

s. 8

Act and therefore m spite of the repea o t e rst Bangalore Mysore Act

Act and therefore m spite of the repea o t e rst Bangalore Mysore Act

Khan Sahib Abdul

s. 5

Thus under the first Mysore Act

s. 8

s. 6

Further under the second Mysore Act

s. 5

s. 5

s. 5

s. 8

s. 5

s. 7

Watrchoo

s. 8

s. 5

s. 7

s. 8

s. 8

s. 5

s. 7

s. 8

s. 8

s. 5

s. 53(2)

s. 5

s. 8

s. 5(1)

s. 7(1)

Mysore Act and the Act

Mysore Act or in the Act

s. 8

s. 53(2)

s. 5(1)

s. 58(3)

s. 7(1)

s. 5(1)

Mysore Act or under the Act

s. 5(1)

s. 7(1)

s. 5(1)

s. 7(1)

C.R. SUPREMEfCOURTi

Bubbiah' Ohoudhury

December 2,. 11952

Art. 226

s. 2(c)

s. 2(c)

Vishnu Kamath

s. 24

s. 27

Art. 226

Hari Vi.shnu Kamath

SARDA PRASAD

SARDA PRASAD AND OTHERS

LALA JUMNA PRASAD AND OTHF.RS. (

LALA JUMNA PRASAD

K. C. DAs GuP'rA

P. B. GAJENDRAGADKAR and K. C. DAs GuP'rA, JJ.)

Indian Limitation Act

s. 7

Code of Civil Procedure, 1908

November 23, 1949

s. 7

Limitation Act

s. 7

the Code of Civil Procedure

s. 7

(1913) L.R. 40 I.A. 132


't I

L ,

3 S.C.R.

SUPREME COURT REPORTS 875

We therefore allow the appeals, set aside the order 1961 of the High Court and restore that of the. Custodian Custodian of dated December ll, 1952 .. This of course will not take Evacuee Prop111y,

a.way the right if any of the. respondents to approach Bangalore the Custodian-General, for we ha-ve not <JOndered v. the merits of the order of December 2, 1952. In the KhanSahebAbdul

 f th' d t Shukoor circumstances o . 1s case we pass no or er as o costs.

Wanchoo ].

Appeals allowed.

SARDA PRASAD AND OTHERS

LALA JUMNA PRASAD AND OTHF.RS. (P. B. GAJENDRAGADKAR and K. C. DAs GuP'rA, JJ.)

Limitation-Execution-Decrre for joint possessic; i in favour of Hindu father and minor sons-Failure of father to exewte within the period of limitation-Right of sons; if barred-Indian Limitation Act, I908 (9 of z908), s. 7-Code of Civil Procedure, 1908 (5 of 1908);

0. ,3a, rr. 6, 7.

A decree dated September 2, 1938, in a suit for partition of joint Hintlu family property awarded a house to the share of one J and his lour minor sons. J failed to execute the decree. On November 23, 1949, an application wa; made by the appellants, the four sons of J, for execution of the decree stating that throe of them had been minors till then and one of them was still a minor and so no question of limitation arose. The respondent objected that the application was barred under s. 7 of the Indian Limitation Act. The appellants contended that s. 7 did not apply to a partition decree and thats. 7 was no bar as J conld not have given a valid discharge of the liability under the decree in view of the provisions of 0. 32 of the Code of Civil Procedure.

Hel1, that the application for execution was barred by limitation. J, the managing member of the family could have given a discharge of the liability under the partition decree by accepting JA)Ssession on behalf of his minor sons without their conseP.t and so time ran against them under s. 7 from the date of the decree.

Order 32, rr. 6 and 7 were no bar to J giving a discharge of the liability under the decree as it was neither a case of receipt of any money or movable property nor was there any question of entering into an agreement or compromise on behalf of the minors.

Ganesha Row v. Tuljaram Row, (1913) L.R. 40 I.A. 132, Parm.shwari Singh v. Ranjit Singh, A.LR. 1939 Pat. 33 and Letchmana Chetty v. Subbiah Chetty, (1924) I.L.R. 47 Mad. 920,

referred to.

F8bruary ao.

r961 CrvIL APPELLATE

JURISDICTION : Civil Appea.1

Sa1da P1asad No. 2?6 of1956. v.

Appeal from the judgment and decree dated Octo- L•I• JumnaP1asadber 15, 1954, of the Allahabad High Court in Execution First Appeal No. 224 of 1951.

S. P. Sinha a.nd Tiryugi Narain for the a.ppella.nts.

G. O. Mathur, for respondent No. I.

1961. February 20. The Judgment of the Court was delivered by ·

Das Gupta J.

DAs GUPTA, J . ...,....This appeal raises a. question of limitation in execution proceedings. The decree sought to be executed wa.s made by the Civil Judge, Kanpur, on September 2, 1938, in a suit for partition brought by two brothers Jumna Pra.sa.d and Devi Prasad and two minor sons of J umna. Pra.sa.d, against Ga.jju La.I, his son Ja.wala. Prasad, the four minor sons of Jawala. Pra.sa.d-Sharda. Pra.sa.d, Dha.ra.m Pa.I, Ram Pa.I and Krishna. Pal, and one Smt. Sunda.ri. By the decree one of the properties, a house formerly bearing No. 36/22 and now 36/58, Eta.we. Bazar, Kanpur, was awarded a.long with other properties to the defendants in the suit. The present application for eecution was ma.de by the four brothers, Sharda. Pra.sarl, Dha.ra.m Pal, Ra.m Pa.I and Krishna. Pa.I on November 23, 1949. The prayer was that these applicants ma.y be delivered possession over this Eta.we. Bazar house a.long with Ga.jju La.I, Ja.wa.la. Pre.sad and Smt.

Sunda.ri on dispossession of Jumna. Pra.sa.d and Devi

Prasad .. It is stated in the application that all these applicants had " up till now been minors and one of them is still a. minor and so no question in respect of time a.rises." This, it is important to note, was the first application for execution of the partition decree.

A number of objections we.re raised; but the principal objection and the only one with which we a.re concerned in this a.ppea.l was that the application was barred by time. The decision of this question depended on the answer to the question raised on behalf of the opposite parties that Ja.wa.la. Prasad one of the persons entitled jointly with these applicants to make an application for the execution of the decnie could have

given a discharge of the liability under the decree z96z without the concurrence of his minor sons and so time Sarda PrastJd ran under s. 7 of the Limitation Act against them also v. from the date of the decree.

Lala Jumna Prasad The Trial Court did not feel satisfied that J a wala Prasad could give a valid discharge and held accord- Das Gupta J. ingly that the application was within time.

On appeal the High Court held that Jawala Prasad a.s the Karta of the Hindu joint family could act on behalf of the entire joint family in taking possession of the house allotted to the defendants and delivery of such possession could discharge the liability qua the entire joint family and held accordingly that the application was barred by limitation. The High Court ho" ever granted a certificate under Art. 133(l)(c) of the Co.nstitution and on that certificate this appeal has been filed by the applicants for execution.

Two contentions were raised on behalf of the appellants in support of the plea that the High Court erred in holding that the application for execution was barred by limitation. First, it is urged that s. 7 of the Limitation Act does not apply at all to a partition decree. The second contention is that in any case Jawala Prasad could not give a valid discharge of the liability under the decree in view of the provisions of O. 32 of the Code of Civil Procedure.

On the first contention the argument is that the word " discharge " is appropriate only in respect of a monetary claim and is wholly inappropriate in respect of any decree for possession whether on partition or otherwise. There is, in our opinion, no substance in this argument. The mere fact that the two illustrations to s. 7 are in respect of debts is no ground for thinking that the provisions of s. 7 are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word " discharge " can refer only to debts. Discharge means, to free from liability.

The liability may be in respect of monetary claims, like the debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or

z96z decrees of a similar nature, the decree in favour of one person against another requires the person against Sarda Prasad h th d d j' bl d th' v. w om e ecree 1s ma e ia e to o some mg or

Lala Jumna Prasad to refrain from doing something. This liability is in a

sense a debt which the party is in law bound to Das Gupta J. discharge. The ordinary use of the word " judgment. debtor" to denote a person against whom a decree has been made makes a clear recognition of this. It is worth mentioning in this connection that the Code of Civil Procedure itself defines" judgment-debtor" to mean "any person against whom a decree is passed or an order capable of execution has been made."

It is helpful to notice in this connection the provisions of s. 8 of the Limitation Act that "nothing in s. 6 or s. 7 applies to suits to enforce rights of preemption." Ifs. 7 had been applicable merely to litigation for monetary claims it would have been unnecessary and indeed meaningless to take the special step of exempting suits to enforce rights of pre-emption from the operation of s. 7. This is a further reason in support of the conclusion that the word "discharge" in s. 7 is not limited to discharge of monetary claims only but also to discharge or satisfaction of all other liabilities as well. We therefore hold that the first argume"nt raised on behalf of the appellants has no substance.

Equally untenable is the second argument that the provisions of 0. 32 of Lhe Code of Civil Procedure debar the manager of a Hindu joint family from givmg discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta ofa Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all mi.tt{JrS of management of the family property. Clearly, theref,1re, when in respect of a transaction of property poBsession has to be received by the several members of the family, it is the Karta's duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not.

\Vhen any minor member of a joint family is a party '¢' to a proceeding in a court he has however to be Sard• hosod represented by a next friend appointed by the court v. and where somebody other than the managing member LalaJu,.••Prosod of the family has been appointed a guardian ad litem there might be difficulty in the way of the managing Das G•fJI• J. member giving a discharge on behalf of the minor.

Where however the marn•ging member himself is the guardian ad litem the only difficulty in the way of action being taken by him on behalf of a minor is to the extent as mentioned in 0. 32, rr. 6 and 7. In Ganesha Row v. Tuljaram Row (1). the Judicial Commit.

tee pointed out t.hat :-

"No doubt a. father or managing member of a joint Hindu family may, under certain circum. stances and subject to certain conditions, enter into agreements which may be binding on the minor members. of the family. But where a minor is party to a suit and a. next friend or guardian has been appointed to look after the rights and interests of the infant in and concerning the suit, the acts of such next friend or guardian are ubject to the control of the Court." In that case their Lordships held that in view of the provisions of s. 462 of the then Code of Civil Procedure (which corresponds to 0. 32, r. 7 of the present Civil Procedure Code) the managing member who had been appointed a guardian in the suit had no authority to enter into any compromise or agreement purporting to bind the minor. This principle has been applied also to cases where the provisions of O. 32, r. 6 would apply and so. it has. been held in numerous cases in India. that the Ka.rta of a Hindu joint family though guardian in. the suit cannot give a valid discharge in respect of a claim or a.. decree for " money or other movable property.'' (Parme8hwari Singh v. Ranjit Singh(') and [, etchrrw:na Chetty v .. Subbiah Chetty (')).

In. the present. case howeve~ there is. no scope for the application. of either the provisions of O. 32, r. 6 or O. 32, r .. 7 of the Code of Civil' Procedure. Neither is

(1) (1913) L.R. +o I.A. 132. 13i. (2j A.l.R. 1939 Pat. 33

(3) (1924) l.L.R. 47 Mad. 920.

1961 this a. case of. a. receipt of any money or movable properties.; nor is there any question of entering into • Sarda Prasad an agreement or compromise on behalf of the minor. •

LolaJu.:~.PrasaaFor, clearly acceptance of delivery of possession of

- property in terms of the decree in a pa.rtit ion suit, can Das Gupta J. by no stretch of imagination be considered enterig into any" agreement or compromise."

Fbrua,.y 2I.

We a.re therefore of the opinion that Jawala Prasad, the managing member of the family could have given a discharge.of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under s. 7 of the Limitation Act from the date of the decree. The High Court was .therefore right in its conclusion that the application for execution was barred by limitation.

The appeal is accordingly dismissed with costs.

Appe, al dismissed.

HARIDA8 MONDAL

' v.

ANATH NATH MITTRA. (J. L. KAPUR, M. HII~AYATULLAH and J.C. SHAH, JJ.)

Money lending-Reopening of transactions-Successive suits by borrower for relief-Maintainability-Res judicata-Benal Moneylenders Act, r940 . (Ben. X of 1940), s. 36-Code of C•vil Procedure, r908 (ct V of r908), s. II, 0. 2, r. 2. ' ,

'The appellant obtained a preliminary and then a final mortgage decree against the respondent and thereafter a personal decree for the debt remaining due to him after sale of the pro~ pcrty mortgaged: The appellant applied for execution ofthe personal decree 'and thereupon the respondent sued 'for relief under s. 36 of the Bengal Money-lenders Act, r940, by reopening the personal decre, In the suit relief for reopening the preliminary .decree and. final decree was not claimed, The personal decree was reopened in that suit and an instalment decree for a smaller amount passed instead, which was ultimately' upheld', by the High Court. The respondent failed to pay the instalments and the appellant applied for executing the decree; The respondent then filed another suit under s. 36 of the Act for reopening the preliminary and final decrees.

The Subordinate Judge dismissed the suit holding that it was barred as res judicata and the District Judge on appeal affirmed that decision. But the

SARDA PRASAD AND OTHERS

OTHF.RS. (P. B. GAJENDRAGADKAR

Indian Limitation Act

s. 7

Code of Civil Procedure, 1908

September 2, 1938

November 23, 1949

s. 7

Limitation Act

s. 7

the Code of Civil Procedure

s. 7

(1913) L.R. 40 I.A. 132

S. P. Sinha

Tiryugi Narain

G. O. Mathur

Das Gupta

DAs GUPTA

Ga.jju La.

Ja.wala. Prasad

Jawala

Dha.ra.m Pa.

Ram Pa.

Krishna. Pal

Sunda.ri.

Kanpur

Sharda. Pra.sarl

Dha.ra.m Pal

Ra.m Pa.

Krishna. Pa.I

Devi

Prasad

Sarda PrastJd

s. 7

Limitation Act

Lala Jumna Prasad

J a wala Prasad

Jawala Prasad

Art. 133(l)(c)

s. 7

Limitation Act

the Code of Civil Procedure

s. 7

s. 7

Sarda Prasad

the Code of Civil Procedure

s. 8

Limitation Act

s. 6

s. 7

s. 7

s. 7

Code of Civil Procedure

s. 462

Code of Civil Procedure

Civil Procedure Code

India

s. 7

Limitation Act

J. L. KAPUR

M. HII~AYATULLAH

J.C. SHAH

s. 36

s. 36

s. 36