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PETITIONER: RAJA SHANTRUNJI

       Vs.

RESPONDENT: MOAZMAT AZMAT AZIM KHAN & ORS

DATE OF JUDGMENT21/04/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. VAIDYIALINGAM, C.A.

CITATION:  1971 AIR 1474            1971 SCR  433

ACT: U.P.  Zamindars  Debt Reduction Act (15 of 1955),  s.  4  as amended  by the Amendment Act of 1962--Effect of  amendment, Code  of  Civil  Procedure (Act 5 of  1908),  0.  47-Review- Principles for granting when statute amended.

HEADNOTE: An application for the reduction of the decretal amount of a decree  passed under the U.P. Encumbered Estates Act,  1934, filed  by the respondents under s. 4 of the U.P.  Zamindars’ Debt Reduction Act, 1953, was rejected by the Special  Judge acting  under 1953-Act, on the ground that unless and  until the  decree charged the mortgaged property no reduction of debt could be ordered under the 1953-Act.  The appeal to the High  Court was dismissed.  The 1953-Act was amended by  the U.P.  Zamindars’  Debt Reduction (Amendment) Act,  1962,  by deleting  the  words  ’charged under the  decree’  from  the section.    Thereafter,   the  judgment  debtor   filed   an application for review in the High Court, and the High Court set  aside the order of the Special Judge, and remanded  the matter. On  the questions: (1) whether the section as amended  could be  invoked  by the respondents, and  (2)-whether  the  High Court could grant the application, HELD:     (1) The Amendment Act provided that the  amendment took  effect  as if the amendment had been in force  on  all material  dates,  that  is, the  words  ’charged  under  the decree’  in  s.  4(2) of 1953-Act  were  never  there.   The consequence  is  that  the  only  statutory  requirement  is whether  the mortgaged property consists of an estate  which has been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950.  In the present  case, the  decree  related  to a secured debt  and  the  mortgaged property  consisted  of an estate which  had  been  acquired under  the provisions of Abolition Act, and  therefore,  the section could be invoked. [436F; 437E-F; H, 438A-B] State  of  Bombay  v. Pandurang Vinayak  Chaphalkar  &  Ors. [1953] S.C.R. Z73, referred to. (2)  It  was not a case where, when the High  Court  decided the  matter, it applied the law as it stood and there was  a subsequent  change of law, which would not be a  ground  for review. [438E-F] (a)  The  law in s. 4 of the 1953-Act as amended was  not  a

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subsequent law, but a law which was there from the inception of the Act.  The deeming provision makes it fully  effective from the date when the 1953-Act came into force.  The result is  that  the High Court in the first instance  should  have applied the law as it always stood and not having done so it would be an error on the face of the record. [438F-H] (b)  Moreover,  s.  4 of the 1953-Act confers power  on  the Court  to  apply  the  law  notwithstanding  any   provision contained  in  the Civil Procedure Code.  It  is  a  special legislation conferring rights and reliefs within 28-1 S.C. India/71 434 a  specially created jurisdiction and, it is  the  substance and not the form that would be decisive, in such  a  case. [439 C-D] (c)  The   Special   Judge  could  not  have   ordered   the application  after it was affirmed by the High Court in  the first  instance,  and  therefore,  the  respondents  rightly applied to the High Court. [438H; 439A] Rajah  Kotagir  Venkata Subbamma Rao v. Rajah  Vellanki,  27 I.A. 197, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1007  of 1967. Appeal  from the judgment and order dated April 30, 1963  of the   Allahabad   High  Court,  Lucknow  Bench   in   Review Application No. 2 of 1963. C. B. Agarwala and Akhtar Husain, for the appellant. Danial A. Latifi, and M. I. Khowaja, for respondent No. 1. The Judgment of the Court was delivered by Ray, J.---This appeal is by certificate from the judgment of the  Allahabad High Court dated 30 April, 1963.   Leave  was granted by the Allahabad High Court on 21 February, 1966. The  facts  are  these.  On 4 October,  1939  the  appellant obtained  a decree under the U. P. Encumbered  Estates  Act, 1934  against Sardar Mujibul Rahman Khan for the sum of  Rs. 1,31,040-1-0  with costs and future interest at 3 1/2%  p.a. on the basis of a secured debt.  Sardar Mujibul Rahman  Khan the judgment debtor died on 24 April, 1949.  Thereafter  the judgment  debtor’s  sons who were brought on  record  on  21 April,  1953  applied for reduction of the  decretal  amount under section 4 of the U. P. Zamindars’ Debt Reduction  Act, 1952 (Act XV of 1953).  The application was rejected by  the Special  Judge,  Kheri on 18 February,  1957.   The  Special Judge  held  that unless and until the  decree  charged  the mortgaged  property  no reduction of debt could  be  ordered under the U. P. Zamindars’ Debt Reduction Act, 1952 and that the  decree was not one such.  The judgment debtor filed  an appeal  against  the said order of the Special  Judge.   The appeal  was heard on 27 November, 1962 by the Full Bench  of the Allahabad High Court upholding the order of the  Special Judge  and  dismissing  the  appeal  which  was  treated  as revision.   Shortly  after  the dismissal  of  the  revision petition  the U. P. Zamindars’ Debt Reduction Act, 1952  was amended by U. P. Zamindars’ Debt Reduction (Amendment)  Act, XX  of 1962.  The Amendment Act of 1962 received the  assent of  the President on 27 November" 1962 which happened to  be the date of the order of the High Court 435 on the revision application.  The amendment was published in the Gazette on 4 December, 1962 and came, into force on that date.   The judgment debtor thereafter on 20 February,  1963

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filed  an  application for review against the order  of  the Full Bench dated 27th November, 1962. The High Court in accordance with the order of the  majority accepted  the review application of the judgment debtor  and set  aside  the  order of the Special  Judge  rejecting  the judgment  debtor’s  application  under  section  4  of   the Zamindars’ Debt Reduction Act, 1952 and remanded the case to the  Special  Judge for disposal of the same  in  accordance with  the provisions of the U. P. Zamindars’ Debt  Reduction Act, 1952 as amended by Act 20 of 1962. Two  questions arise in the present appeal.  First,  whether section  4 of the U. P. Zamindars’ Debt Reduction Act,  1952 could ’be invoked by the judgment debtor, secondly,  whether the  High  Court  could accede to the  application  of  the judgment debtor. Section  4 of the U. P. Zamindars’ Debt Reduction Act,  1952 (hereinafter referred to as the 1952 Act) in so far as it is necessary  for  the  purpose of the  present  appeal  is  as follows:               "Powers  to  reduce debts  after  passing  of               decree:  (1) Notwithstanding anything  in  the               Code  of  Civil Procedure, 1908 or  any  other               law,  the,  court, which passed  a  decree  to               which  this Act applies relating to a  secured               debt,  shall on the application either of  the               decree-holder  or judgment-debtor, proceed  as               hereinafter stated.               (2)   Where  the mortgaged  property  (charged               under  the  decree)  consists  exclusively  of               State and such estate has been acquired  under               the   provisions  of  the  U.   P.   Zamindari               Abolition  and  Land Reforms  Act,  1950,  the               court shall-                *   *    *    *    *    *    *    *               (3)   Where  the mortgaged  property  (charged               under  the decree) consists partly  of  estate               and, partly of property other than estate, the               court shall-                 *   *    *    *    *    *    *     * The  words ’charged under the decree’ are shown in  brackets only to indicate that these words were deleted by  Amendment Act  20 of, 1962.  It is because of the amendment  that  the judgment debtor made an application to., the High Court  for review  of the order dated 27 November, 1962  rejecting  the judgment  debtor’s application under section 4 of  the  1952 Act.   As to what the Court shall do under sub-sections  (2) and (3) of section 4 of the 1952 Act are calculation of  the amount and reduction of the same 436 in  accordance with the provisions of the Act.  The  working out  of these details for calculation and reduction of  debt does not arise in the present case. The  Amendment  Act  20  of 1962  which  deleted  the  words "charged  under the decree" occurring in  both  sub-sections (2)  and (3) of section 4 of the 1952 Act immediately  after the  words "mortgaged property" was made effective  as  from the  date  of  enforcement  of the  U.  P.  Zamindars’  Debt Reduction Act, 1952, namely, 25 May, 1953. The  reason  for  this amendment given in  the  objects  and reasons  of the U. P. Zamindars’ Debt Reduction  (Amendment) Act,  1962  was because the High Court of Allahabad  in  the case,  of Bannu Mal & Ors. v. Bashir Ahmad Khan &  Ors.  (1) held that the court was powerless to reduce debts after  the passing  of  the decree unless the  mortgaged  property  was charged  under the decree.  The effect of the Amendment  was

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to   give   relief   to  mortgaged   property   within   the contemplation of the Act. As  a result of the amendment first it is to be a decree  to which the 1952 Act applies, secondly, it is ’to be a  decree relating  to  a  secured debt and,  thirdly,  the  mortgaged property is to consist of estate which has been acquired and the  provisions  of the U. P. Zamindari Abolition  and  Land Reforms Act, 1950.  If these tests are satisfied the  decree holder or the judgment debtor has the right to apply to  the court  and  the court shall on the  application  proceed  in accordance with the provisions of the Act.  The Court  under this section is the court of the Special Judge which  passed the decree.  In the present case, it is indisputable that it is  a  decree relating to secured debt,  and  the  mortgaged property consists of an estate which has been acquired under the  provisions  of the U. P. Zamindari Abolition  and  Land Reforms Act, 1950. The  respondents applied under section 4 of the 1952 Act  as it  stood prior to its amendment by Act 20 of 1962 on  24/25 August, 1955 in the court of the Special Judge, first-grade, Kheri.   The Special Judge held that the decree against  the respondents  was not one which could be said to  be  against the  mortgaged  property  charged  under  the  decree.   The respondents also lost before the High Court under the  order dated   27   November,  1962.   The  respondents   made   an application  for  review of the judgment of the  High  Court dated 27 November, 1962. (1)  1962 A. L. J. R. 88  437 The  effect of the amendment of the 1952 Act is embodied  in section 2 of the Amendment Act, 1962 which is as follows               "The U. P. Zamindars’ Debt Reduction Act, 1952               shall as to the date of this enforcement  have               effect subject to the amendments made by  this               Act  as if this Act had been in force  on  all               material dates:               Provided  that nothing in this  section  shall               apply  to  a debt which  has  been  discharged               prior to the date of enactment of this Act".               The Amendment Act therefore provided that  the               amendment took effect as if the Amendment  Act               had been in force on all material dates.   The               effect of such a deeming clause was stated  by               this  Court  in State of Bombay  v.  Pandurang               Vinayak Chaphalkar   & Ors. (1) as follows:               "When a statute enacts that something shall be               deemed  to have been done, which in  fact  and               truth  was not done, the court is entitled  to               ascertain  for what purposes and between  what               persons   the  statutory  fiction  is  to   be               resorted  to and full effect must be given  to               the statutory fiction and it should be carried               to its logical conclusion". The statutory fiction was introduced to give full effect  to section  4 of the 1952 Act by conferring on the debtors  and creditors  the right to apply to the court  for  calculation and  reduction of debt.  It was realised that courts  always passed  simple  decrees.   It  was  noticed  that  mortgaged property was not and could not be charged under the  decree. It was therefore appreciated that unless the words  "charged under the decree" were deleted the section could never  give any relief to any landlord whose estate had been acquired. This  Court in the Bombay case referred to the  observations of   This  Court  in  the  Bombay  case  referred   to   the observations  of This Court in the Bombay case  referred  to

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the  observations of Lord Asquith in East End Dwellings  Co. Ltd.  v. Finsbury Borough Council (’that "If you are  bidden to  treat  an imaginary state of affairs as real,  you  must surely,  unless  prohibited from doing so, also  imagine  as real  to consequences and incidents which, if  the  putative state  of affairs had in fact existed, must inevitably  have flowed from or accompanied it........ The statute says  that you must imagine a certain state of affairs; it does not say that  having  done  so,  you  must  cause  or  permit   your imagination  to  boggle  when it  comes  to  the  inevitable corollaries  of that state of affairs".  These  observations indicate  that  the  words "charged under  the decree"  in section 4(2) of the 1952 Act were never there with the (2)  [1952] A.C. 109 (1) [1953] S.C.R. 773,778 438 inevitable  consequence that the only statutory  requirement is  whether the mortgaged property consists of estate  which has  been  acquired  under  the  provisions  of  the  U.  P. Zamindari Abolition and Land Reforms Act, 1950. On  27 November, 1962 when the matter was heard by the  High Court,  this amendment did not come into the  statute  book. That is why the judgment debtor made an application to bring it to the notice of the High Court that the law was that the words  "   charged under the decree" were always  deemed  to have  been deleted and this law was effective from the  date of  coming into force of the 1952 Act on 25 May, 1953.   The High  Court by a majority opinion was of the view  that  the judgment debtors should be given relief.  Under Order 47  of the  Code  of Civil Procedure the principles of  review  are defined  by  the Code and the words " any  other  sufficient reason"  in  Order  47  of the  Code  would  mean  a  reason sufficient  on  grounds analogous to those  specified  imme- diately  previously in that order.  The grounds  for  review are  discovery of new matters or evidence which,  after  the exercise  of due diligence, was not within his knowledge  or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on  account of some mistake or error apparent on the face of the record. In  Rajah  Kotagiri Venkata Subbamma Rao v.  Rajah  Vellanki Venkatrama Rao (1) Lord Davey at page 205 of the Report said that "the section does not authorise the review of a  decree which  was  right  when it was made on  the  ground  of  the happening  of  some  subsequent  event".   Counsel  for  the appellant  submitted  that when the High Court  decided  the matter,  the  High Court applied the law as it stood  and  a subsequent  change of law could not be a ground for  review. The appellant’s contention is not acceptable in the  present case  for  two  principal  reasons;  first,  it  is  not   a subsequent  law.  It is the law which, all along  was  there from  1952.   The deeming provision is fully  effective  and operative  as from 25 May, 1953 when the 1952 Act came  into force.   The result is that the Court is to apply the  legal provision as it always stood.  It would, therefore, be error on the face of the record.  The error would be that the  law that  was  applied  was not the  law  which  is  applicable. Secondly,  section 4 of the 1,952 Act confers power  on  the court  to  apply  the  law  notwithstanding  any   provision contained  in  the Code of Civil Procedure.   Therefore  the application  though intituled an application for review  was not  be  so.   The  substance  and  not  the  form  of   the application will be decisive. The respondents could not have applied to the Special  Judge at  Kheri  after  the  decision of  the  High  Court  on  27 November, 1962 to apply the law as it stood to the facts and

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circumstances of (1)  27 I. A. 197. 439 of  the  case.   The appeal from the order  of  the  Special Judge.  I Kheri was heard by the High Court and,  therefore, the  respondents  rightly  applied to the  High  Court.   It appears from the record of the case that when the matter was heard before the High Court the respondents’ counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the  President. In the present case,  it  is a preeminent consideration to be kept  in  the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the respondents.  This is  a special  legislation conferring rights and reliefs within  a specially created jurisdiction.  The decree is treated  like a decree of the Civil Court.  The execution of the decree is not  within  the province of the provisions of the  Code  of Civil  Procedure.  There are special Acts for  execution  of decrees  of  the type in the present  appeal.   The  Special Courts have been given power to grant remedies or reliefs to the judgment debtor as well as the decree-holder.  Section 4 of  the  1952  Act conferred right to  apply  to  the  court notwithstanding any provision contained in the Code of Civil Procedure.   The High Court was, therefore, right in  making the  order as a court could have made at the date  on  which the appeal was heard. For  these reasons the appeal fails and is dismissed.   Each party will pay and bear their own costs. V.P.S.                                    Appeal dismissed. 440