Find a Lawyer

Execution Second Appeal No. 34 of 1968, decided on 25th January 19.8.

S. 60 and Punjab Relief of Indebtedness Act (VII of 1934), S. 35 read with West Pakistan Relief of Indebtedness Ordinance (XV of' 1960), Ss. 2 (c) (iii) & 14‑Attachment under S. 60, C. P. C. in execution of decree‑Residential house of non‑agriculturist judgment‑debtor Exemption available to only judgment‑debtor whose total assets do not exceed five thousand rupees‑Exemption provided by S.35, Punjab Relief of Indebtedness Act, 1934 as incorporated in S. 60 (1) (ccc), Civil Procedure Code (V of 1908) strands repealed by S. 14, West Pakistan Relief of Indebtedness Ordinance, 1960‑West Pakistan General Clauses Act (VI of 1956), S. 5.

Secretary of State v. Hindustan Co‑operative Insurance Society Ltd. A I R 1931 P C 149 and Hahbury's Laws of England, 3rd Edn., Vol. 36, p. 471, para. 760 distinguished.

Repeal of Act making textual amendment in another Act‑Despite repeal of parent Act its off spring survives in second statute unless a different intention appears‑Such intention to be determined with reference to repeal ing law‑West Pakistan General Clauses Act (VI of 1956), S. 5.

Sh. Muhammad Shafi for Appellant.

A. H. Najafi for Respondents.

Date of hearing : 25th January 1968.

The only question involved in this appeal is whether a residential house belonging to a judgment‑debtor and in his occupation is exempt from attachment under section 60 of the Code of Civil Procedure.

2. This section 60 (1), as it stood before the year 1934 exempted houses and other buildings belonging to an agricul turist and occupied by him. Section 35 of the Punjab Relief of Indebtedness Act (VII of 1934), as amended by section 16 of Act XII of 1940, inserted the following after clause (c) of section 60(l) of the Code of Civil Procedure :‑-

"(ccc) one main residential house and other buildings attached to it (with the material and sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment‑debtor other than an agriculturist and occupied by him Provided that the protection aforesaid by this subsection shall not extend to property which had been mortgaged."

As a result of this amendment, judgment‑debtors other than agriculturists became entitled to the exemption from attachment and sale of one main residential house in their occupation subject to the condition aforesaid and this continued to be the position till the year 1960 when sections 30 to 36 of the Punjab Relief of Indebtedness Act, 1934, were repealed by section 14 of the Ordinance XV of 1960, i.e. The West Pakistan Relief of Indebtedness Ordinance, 1960. The question is what is the effect of the repeal of section 35 of the Act, 1934 by section 14 of the Ordinance of 1960

3. The principle of interpretation in this regard shall have to be deduced from section 5 of the West Pakistan General Clauses Act (VI of 1956). This section runs as follows :‑-

"5. Where any West Pakistan Act repeals any enactment by which the text of any enactment was amended by the express omission, insertion or substitution of any matter, then unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enact ment so repealed and in operation at the time of such repeal."

If, therefore, a different intention does not appear from the Ordinance of 1960, clause (ccc) in section 60(1) of the Code of Civil Procedure shall continue to remain in force in spite of the repeal of section 35 of the Act of 1934 which had A made this insertion. Let us now see if a different intention appears.

4. This intention has to be determined with reference with the repealing law, i.e., the Ordinance of 1960. It may here be mentioned that the Ordinance of 1960 has now the status of an Existing Act by virtue of the Provisions of Article 225 of the Constitution. If the Ordinance had simply repealed section 35 and not made any alternative provision inconsistent with the said section, the intention would, of course, have been to keep the amendment alive. Section 2(c)(iii) of the Ordinance of 1960 runs as follows :‑-

" debtor' means a person who owes a debt; and

(iii) whose total assets do not exceed five thousand rupees ;

And section 7 is in the following words:‑

"Notwithstanding anything contained in the Code of Civil Procedure, 1908, the houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for the enjoyment (belonging to a debtor, shall not be liable to attachment or sale in exe cution of any decree, if such houses and other buildings not proved by the decree‑holder to have been let out on rent or lent to persons other than the debtor's father, mother wife, son, daughter, daughter‑in‑law, brother, sister or other dependents or left vacant for a period of a year or more, provided that the protection afforded by this section shall not extend to any property specifically charged with the debt sought to be recovered."

A perusal of section 2(c)(iii) of the Amending Ordinance read with provisions of section 7, however, shows that the intention was to provide relief and exemption in respect of residential houses only to such non‑agriculturists as had assets which did not exceed five thousand rupees. It cannot be lost sight of that the law is avowedly for the purpose of providing relief to debtors and if the Legislature chooses to restrict the relief only to a certain category of persons the intention cannot be to allow clause (ccc) of section 60(1) of the Code of Civil Procedure. s which has 3 much wider scope, to continue to exist in spite of the repeal of section 35 of the Act of 1934. A contrary interpretation would lead one to the necessity of imputing redundancy to the Legislature in respect of section 2 (c) (iii) read with section 7 of the Ordinance of 1960 because if a residential house of any judgment‑debtor irrespective of his financial position is exempt from attachment these provisions would/ be of no consequence, at all.

5. Learned counsel for the appellant referred me to decision of the Privy Council in Secretary of State v. Hindustan Co‑operative Insurance Society Ltd. (AIR 1931 P C 149), and more particularly to the following observation:--

"In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second . . . . . . . . . . . This doctrine finds expressions in a common form section which regularly appears in the Amending and Repeal ing Acts which are passed from time to time in India. The section runs:

"The repeal by this Act of enactment shall not effect any Act . . . . . . . . . . . . . in which such enactment has been applied, incorporated or referred to:

The independent existence of the two Acts is, therefore, recog nized ; despite the death of the Parent Act, offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country."

Apart from the fact, as has already been demonstrated above that there is a section in the West Pakistan General Clauses Act which covers the present situation, the fact remains that the ruling cited by learned counsel deals with a case in which legislation by reference has taken place. In other words, the clear meaning of the ruling cited by learned counsel is that if the Civil Procedure Code had been enacted later than the Punjab Relief of Indebtedness Act (VII of 1934) and clause (ccc) had been a substantive provision of the Act of 1934 and was made applicable to the Civil Procedure Code by a provision in the Civil Procedure Code itself referring to the provisions of the Act of 1934, then the repeal of the Act of 1934 would not have meant the repeal of the borrowed provision in the Civil Procedure Code also. This is an understandable position because the Act which borrowed the provisions from another Act was never repealed and the mere fact that the Act from which the provisions were borrowed was repealed would not affect the Act which had borrowed the provisions.

6. Learned counsel for the appellant in this connection also referred to Halsbury's Laws of England, Third Edition, Volume 36, page 471, Paragraph 716, and to the following obser vation contained in it:

"A further limitation on the principle that a repealed enactment is to be treated as if it had never existed is to be found in connection with enactments which have come to form part of two or more statutes. This may result either from provision in one statute for to incorporation with subsequent statutes of a particular description or, as is more frequently the case today, from the adoption of existing enactments by reference; and the rule in such cases is that the repeal of the parent statute does not affect the continued operation of the enactments in question as part of any other statute unless it is expressed to extend to them as incorporated or there is a necessary implication that it was intended to do so."

This observation also deals with a position similar to that considered in Hindustan Co‑operative Insurance Society Ltd.'s case and is, therefore, not attracted to the fact of the case before me.

7. It is the later part of this paragraph which is applicable and it runs as follows :‑--

"Where, however, subsequent interference with the incor porated enactments amounts to less that, their total repeal there are further considerations to be taken into account in determining its effect on them as incorporated, at any rate if the case is one of incorporation by reference. In the first place, if the enactments are merely repealed in part, or modified by the addition or alteration of words, the question arises whether it might not have been the intention of the incorporating statute to adopt them as for the time being in force; and secondly, if they are repealed and re enacted, with or without modifications, there is a statutory presumption in aid of the view that are thenceforth to be regarded as incorporated in their new form."

This observation clearly supports section 5 of West Pakistan General Clauses Act, 1956, already Quoted above.

8. My conclusion, therefore, is that by the repeal of section 35 of tile Punjab Relief of Indebtedness Act, 1934 by section 14 of the Punjab Relief of Indebtedness Ordinance, 1960, coupled with the provisions of section 2(c)(iii) read with section I of the latter Ordinance, clause (ccc) of section 60(1) of the Civil Procedure Code of 1908 stood repealed and is no longer available to judgment‑debtors.

9. The appeal, therefore, has no force and is dismissed with costs throughout.

A. E./K.B.A. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.