Rajah Nilmoni Singh Deo Bahadoor v. Taranath Mookerjee
BS651212
PRIVY COUNCIL
Before:-Sir Barnes Peacock, Sir Robert P. Collier, Sir Richard Couch and Sir Arthur Hobhouse.
0 D/d.
18.05.1882
Rajah Nilmoni Singh Deo Bahadoor - Appellants
Versus
Taranath Mookerjee - Respondent
On Appeal from the High Court at Bengal.
Solicitors for Appellant :- Lambert, Petch & Shakespear.
Solicitor for Respondent :- T.L. Wilson.
Jurisdiction of Rent Court - Transfer of Rent Decrees into another District for execution.
[Para ]
The Rent Court established by Act X of 1859 are Civil Court within the meaning of Act VIII of 1859, and under sect. 284 of Act VIII a Collector can transfer his rendered decrees for execution into another district.
Appeal from an order of the High Court (July 7, 1880), made in exerciseof ints power of superintendence over inferior Courts, given by 24 & 25 Vict. c. 104, section 15. It substantially set aside certain orders (March 11,1872, and May 27, 1879), of the Deputy Commissioner of Manbhoom, transferring his own decrees made under the Rent Act (X of 1859) to other districts for execution.
The grounds on which the High Court exercised its extraordinary jurisdiction were that the decrees in question were decrees of a Revenue Court, and that the Deputy Commissioner of Manbhoom had no authority under any law applicable to rent suits in that district to make the order in question.
The judgment of the High Court (Romes Chunder Mitter and Machlean, JJ.), was as follows:-
" If the order complained of are passed without jurisdiction, we think we have the power to interfere under sect. 15 of the Act of Parliament constituting the Court (1).
(1) Vide Gobind Coomar Chowdhry v. Kisto Coomar Chowdhry, 7 Suth. W. R. 520.
"We are also of opinion that a Revenue Court under Act X of 1859 has no power to transfer a decree of its own to be executed by another Court within the jurisdiction of the latter. Such power cannot exist without an express provision of the law granting it.
It is clear, therefore, that both the order complained of are such as the Deputy Commissioner of Manbhoom had no authority to pass under Act X of 1859, or any other law applicable to rent suits in that district.
" But one of the orders was passed so far back as the 11th of March, 1872, and we understand that sales and other proceedings have been held and completed under it without any objection on the part of the application. Under these circumstances, we do not think it right, in the exercise of our extraordinary power under sect. 15 of the states referred to above, to quash it now.
" The other order complained of is comparatively of a recent date, viz., the 27th of May, 1879, and from the time the petitioner came to know of it, he has been diligently endeavouring to have it set aside. Besides, if proceeding be allowed to proceed in accordance with it, it may unnecessarily involve the parties to this suit (and possibly also third parties) in profitless litigation. Under these circumstances, we think it right to exercise our extraordinary jurisdiction in respect of this order. We accordingly set it aside, and direct the Deputy Commissioner to recall the certificates of non-satisfaction from the district Court to which they have been sent, informing them at the same time that the order under which they were sent has been reversed.
"We are informed by the parties that proceedings are still pending in the District Court of Nuddea under the first-mentioned order. Although we decline to quash it formally on the grounds mentioned above, we have yet expressed our opinion that it was also ultra vires. We think, therefore, that the District Court of Nuddea should be informed that it should not proceed further in the matter, and return the record back to the Court of the Deputy Commissioner of Manbhoom.
"Under these circumstances we think each party should bear his own costs in this rule, which we make absolute in the terms set forth above."
Doyne, for the Appellant, contended that under Act X of 1859, section 151, the High Court had no power to set aside the order of the Deputy Commissioner. And as regards the power of superintendence under the Charter Act (24 & 25 Vict. c. 104), the Deputy Commissioner was within his jurisdiction and authority in making the orders complained of. Prior to Act X of 1859 such jurisdiction could not be questioned. At that time regular suits for arrears of rent were brought before the ordinary Civil Courts; see Reg. V. of 1831, repealed by Act X of 1859. See also as to the power of transfer for execution Act XXXIII of 1852, sections 1-7 and 11; amended in certain respects immaterial to the present question by Act XXXIV of 1855, and substantially repealed by the Civil Procedure Code, 1877. The question is did Act X. of 1859, or any subsequent Act take power of transfer as regards rent decrees. It is erroneously assumed by the Respondent and the High Court that the provisions of Act VIII of 1859 for transmission of decree for execution )sect. 184, & c.)., have no application to rent suits. But Act VIII. passed on the 22nd of March, 1859, was extended by proclamation to the district of Manbhoom in June. 1859; and even if that Act did not apply Act XXXIII of 1852 at least was applicable to decrees for rent Act X. came into force on the 1st of August, 1859, as regards Manbhoom. Rent suits were to be instituted before the Collector, and the decree were to be executed by the Revenue Court within their local jurisdiction. No provision was made for execution of such decrees out of the local jurisdiction, External executions continued to be governed by Act XXXIII of 1852, and sect 23 of Act X of 1859 did not take away the powers conferred by the former Act. The intention of Act X. was to give exclusive jurisdiction to Collectors, but as the execution of a decree was not the trial of a suit, it was not interfered with. Act X. of 1877 repealed Act XXXIII of 1852, but (see sect. 223) renewed the provisions as to transfer of decrees for execution to another jurisdiction.
Leith, Q.C. and Cowie, Q.C. (C.W. Arathoom with them), for the Respondent, contended that the order of the High Court was right. The earliest Regulation on the subject was Reg. I. of 1799. They contended that the legislation referred to did not intend to give the powers of transfer beyond the local jurisdiction of the officer charged to try the rent suits. No such power was expressly conferred, and could not be assumed. As regards Act VIII, the expression "Civil COurts" does not include the Revenue Courts. These latte COurts have special powers under sect. 92 of Act the sections of Act VIII, which were intended to apply to them, were incorporated into Act X. itself, excluding the section under which a power to transfer is claimed. [Sir Barnes Peacock :- See sect. 284 of Act VIII.] The Court in question was not then in existence. Act VIII would only apply to Court in existence when it became law. [Sir Barnes Pea Cock:- See sect. 6.] Two different procedures are provided, that of Act VIII applies to Civil Courts, that of Act X. to Revenue Courts. The latte act incorporates certain specific sections of the former, and thereby impliedly excludes those not so incorporated - the intention being that each Act should be complete in itself. Reference was made to sect. 67 of Act X of 1859, also to sect. 122 and 132. In regard to the suits now in question Act X of 1877 has no application.
The Appellant's counsel was not called on to reply.
Case Referred :-
Vide Gobind Coomar Chowdhry v. Kisto Coomar Chowdhry, 7 Suth. W. R. 520.
JUDGMENT
The judgment of their Lordships was delivered by
Sir Arthur Hobhouse :- The question presented to their Lordships in this appeal is, whether the Deputy Commissioner of Manbhoom who has made decrees in rent suits under the Bengal Bent Act, No. X of 1859, can transfer those decrees for execution into another district. That officer possesses the jurisdiction conferred on Collectors of land revenue., and having made decrees in exercise of such jurisdiction has further proceeded to make two orders transferring two decrees and execution. The High Court, in the exercise of their power of revision, have substantially quashed his orders; in point of form, they have quashed one of the orders and they have stayed proceedings on another. It is hardly necessary to enter into the details of the litigation. The High Court have decided that the Deputy Commissioner, as Judge of the Kent Court of Manbhoom, had no authority to pass the orders under Act X of 1859, or any other law applicable to rent suits in that district.
A question was raised with respect to the jurisdiction of the High Court to entertain this question in revision at all. Their Lordships do not think it necessary to say anything upon that point, except that they entirely agree with the view taken by the High Court of their own jurisdiction.
The other question depends upon the construction of Act X of 1859. That Act was passed for the purpose, among other things, of transferring suits for arrears of rent to the jurisdiction of the collectors of land revenue; and it provided by Section 23, pars. 4 and 7, that all such suits " shall be cognizable by the collectors of land revenue, and shall be instituted and tried under the provisions of that Act, and, except in the way of appeal, as provided in this Act, should not be cognisable in any other Court or by any other officer, or in any other manner."
It is not contended on behalf of the Appellant that Act X, of 1859 in any express way gave to the collector the power of transfer which has been exercised. Neither is it contended for the Respondent that the words which have been read would, without more, prevent the provisions of Act VIII of the same year from applying to the execution of a collector's decrees beyond the jurisdiction of his Court. The contention of the Respondent is, that there is something in the language of Act X of 1859 which excludes this power from the jurisdiction of the collector sitting as the Judge of the Rent Court established by that Act. For that purpose the Respondent's counsel referred to a number of sections which may be illustrated by a single one. Section 77 deals with cases in which a third party appears to claim title in a rent suit; it gives the collector certain powers of deciding the question before him, and then contains this proviso:--" The decision of the collector shall not affect the right of either party who may have a legal title to the rent of such land or tenure to establish his title by suit in Civil Court." There are a number of other sections of similar frame; and the contention is, that the expression " Civil Court" is used in all those sections in such a way as to shew that the framers of the Act X of 1859 did not consider that the Kent Courts established by that Act are Civil Courts.
It must be allowed that in those sections there is a certain distinction between the Civil Courts there spoken of and the Hunt Courts established by the Act, and that the Civil Courts referred to in Section 77, and the kindred sections mean Civil Courts exercising all the powers of Civil Courts, as distinguished from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether being a Civil Court in that sense, it does not full within the provisions of Act VIII of 1859. It is hardly necessary to refer to those provisions in detail, because there is no dispute but that, if the Rent Court is a Civil Court within Act VIII of 1859, the collector has under Section 284, the power of transferring; his decrees for execution into another district.
The consequence of holding as the High Court have held is, that wherever Act X. of 1859 applies, persons seeking their rent against a tenant who is insolvent in the district in which he is sued have absolutely no remedy against him, though he may be possessed of great wealth in another district. No reason has been assigned, or so much as suggested, why such a distinction should exist between a person who is claiming a debt founded on rent and a person who is claiming a debt founded on any other transaction. The distinction does not exist in any other part of India, neither indeed does it exist in those provinces of Bengal in which Act X. of 1859 has been repealed, and the Bengal Act VIII of 1869 has taken its place. Therefore although it is not impossible that the Legislature should have intended to establish in Manbhoom and adjacent districts a distinction between claims for rent and all other claims which does not exist elsewhere, it requires very clear and cogent evidence on the face of the enactments, to support the conclusion that they really do intend such a distinction.
That consideration is somewhat emphasised by referring to Act XXXIII of 1852, which was an Act passed to facilitate the enforcement of judgments in places beyond the jurisdiction of the Courts pronouncing the same. It provides that with respect to all Courts - not making a distinction between one Court and another, but with respect to all Courts,- judgments may be enforced in the manner provided in the Act, viz., by a transfer of the judgment out of the district of the Judge who pronounces it into the district of some other judge within whose jurisdiction the debtor possesses property. It is true that in this Act it is said that the word " judgment" means a judgment in a civil suit or proceeding. But suits for the recovery of rent are civil suits or proceedings; and nothing can be clearer on the face of this Act than that the Legislature intended that everybody who obtained a decree in a Court of justice should have a remedy against his debtor, wherever the property of that debtor might be.
The provisions of the Act of 1852 are substantially repeated in Act VIII of 1859; and though that Act speaks of Civil Courts, and not all Courts as Act XXXIII of 1852 does, yet the intention expressed is the same, viz., that all Courts entertaining civil suits of any kind should have this power of transferring their decrees for execution into another district. We find that Act XXXIII of 1852 was repealed in the year 1861, and it is repealed as being simply obsolete, the only reason expressed for repealing it being that Act VIII of 1859 had been passed. If Act VIII of 1859 covered the same ground as Act XXXIII of 1852, the earlier Act had become useless and might be swept out of the Statute Book. But the earlier Act would not have become useless unless the later Act covered the same ground.
In the opinion of their Lordships it is clear that, looking outside Act X of 1859, no intention of making a distinction between rent suits and other suits in respect to the point now under consideration can be ascribed to the Legislature.
Turning to Act X. of 1859, the preamble recites that "it is expedient to re-enact, with certain modifications, the provisions of the existing law in connection with demands of rent, to extend the jurisdiction of collectors, and to prescribe rules for the trial of such questions." It was pointed out by Mr. Doyne that the particular process now under consideration was not the trial of any question regarding rent. But when we look at the provisions of the Act, it is clear that they go beyond the trial of such questions, and provide for the execution of decrees. At the same time the scope of the Act appears to be only to provide for the execution of the decrees of the collector within his jurisdiction. There is nothing in the Act which provides for any execution beyond his jurisdiction. And there is nothing to forbid the conclusion that such executions are left to the operation of Act XXXIII of 1852, or the corresponding portion of Act VIII of 1859.
Section 160 of Act X of 1859 has a bearing on this question. That section provides that an appeal from the judgment of a collector or deputy collector shall lie to the zillah Judge. But the zillah Judge is a Civil Court to all intents and purposes. It was not disputed that if an appeal went from the collector to the higher Court,- to the zillah Judge or to the High Court,- and the decree of the collector for rent was there affirmed, it would become the decree of a Civil Court, which could not be excluded from the operation of Act VIII of 1859. Then this consequence would follow, that the act of the parties would alter the nature of the decree; as long as the decree remains the decree of the collector it is incapable of enforcement in any other district; but let the decree be affirmed by a Court of Appeal, and, though it is between the same parties for the same subject-matter, it then becomes enforceable in another district. It is very difficult to suppose that any such result as that could possibly have been intended by the Legislature.
These considerations lead to the conclusion that the Rent Courts established by Act X of 1859 must be held to fall within Section 284 of Act VIII. of the same year.
The result is that their Lordships will humbly advise Her Majesty that the order of the High Court of the 7th of July, 1880, be set aside and that it be ordered that the rule nisi of the 17th of May, 1880, therein referred to be discharged with costs. The Respondent must pay the costs of the appeal.
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