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Civil Revision No. 140 of 1953, decided on 25th February 1953.
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--‑Statute requiring certain formalities to be observed before filing suit‑Non observance will make the suit nullity.
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--Words of Statute plain and unambiguous‑Court to give the natural meaning‑Duty of Court explained.
When the words of a Statute are plain and unambiguous, a Court cannot refuse to give them their natural meanings, because of a possibility of injustice 'or hardship. The duty of the Court is to read the words in accordance with their natural meaning and to avoid going behind the plain words of the statute and trying to find the reasons of their use.
S. 13‑Provision of S. 13, inoperative‑Affidavit not fled along with application for executed it of ex‑parte decree Held, pro ceedings are void.
The provisions of section 13 clearly direct that before the application for attachment of the judgment‑debtor's property can be issued, the decree‑holder along with the petition must file an affidavit to the effect that the amount of the ex‑parte decree is recoverable. In the absence of an affidavit all proceedings based on the application must be declared void and, of no effect.
S. 115‑Subordinate Court exercising jurisdiction in violation of statutory provision High Court can interfere in revision.
Where there has been an exercise of jurisdiction in viola tion of statutory provision, the High Court has jurisdiction under section 115, C. P. C. to interfere in revision.
B. K. Das and D. C. Bhattacharjee for Opposite Party.
‑This is a Rule under section 115 of the Code of Civil Procedure issued by me on the 13th February, this year, against the order of the learned Munsif, first Court, Kishoreganj, dated the 6th January, this year, in an objection under section 47 of the Code of Civil Procedure, which was Miscellaneous Case No. 323 of 1952 regarding S. C. C. Execution .Case No. 144 of 1951 filed on the 8th December, 1951, for the purpose of executing an ex‑parte decree passed by the S. C. C. Court on the 3rd December, 1951. This objection was mainly on. the ground that as the decree‑holder opposite party did not comply with the provisions of sec tion 13 of the East Bengal Premises Rent Control Ordinance (XXII of 1951), the whole execution proceedings were void.
As the only question that is raised here in this Rule is a legal one I need not go into the details of facts. But in order to understand the significance of it, I may only say that the present petitioner was a tenant under the opposite party in respect of a holding in the urban area of Kishoreganj Subdivision. In the year 1951, a suit for recovery of arrears of house‑rent was brought by the opposite party for arrears of rent of five months at a particular rate per month with compensation, and the claim was laid at Rs. 180. The suit was fixed peremptorily for 24th September, 1951 but ultimately it was heard on the 3rd December, 1951 and, decreed ex‑parte. To complete the narration for the present purpose, I should also say that on the. 29th November, 1951, the petitioner went before the Munsif with an application for stay of the hearing of the suit pending the hearing of a case about standardisation of rent of the premises in question before the Rent Controller, but that application stood rejected on the 3rd December, and on that date the ex‑parte decree was passed in favour of the plaintiff. The order refusing stay was the subject matter of Civil Revision Case No. 164 of 1952 and it was finally disposed of by my learned brother Mr. Justice Badiuzzamman against the present petitioner. Before my learned brother one other contention about the applicability of section 13 of the East Bengal Ordinance afore said was raised and my learned brother disposed of that objec tion in the following words:
"As the section stands, it should be presumed that along with the application for issue of writ of attachment the plaintiff opposite party filed an affidavit to the effect that no part of the rent in respect of which execution was applied for was irrecoverable under the Ordinance. But here before me no attempt has been made to rebut this presumption. It is nowhere stated in the application for revision that there was no affidavit in support of the appli cation for attachment".
Be that as it may, as the aforesaid Rule was discharged, the matter went back for trial and in the execution case the objection under section 13 of the Bengal Ordinance was raised and that gave rise to the Miscellaneous Case No. 323 of 1952; and as I have already said, the learned Munsif passed an order rejecting that, objection on the 6th January, this year, and amongst other he observed as follows:
"The next question that presents itself for consideration by us is whether an affidavit was required to be filed under section 13 of the said Ordinance. It appear; from the judgment of the High Court, a copy of which finds a place in the record of this case, that the Rent Controller has rejected the applicant's petition for settlement of a standard rent. The learned Pleader for the applicant also concedes at the time of argument that the petition for fixation of a standard rent has been rejected by the Rent Controller. It goes without saying that the Court was in a position to know from the papers on record of this case that no part of the rent is irrecoverable and that being so, no affidavit is called for. Section 13 was intended to let the Court know that no part of the decree is irrecoverable under the East Bengal Rent Control Ordinance, 1951. And no duty is cast upon the D. Hr. to swear an affidavit when the real thing is palpable on the very face of the record Taking the worst view that an affidavit was necessary, even then, I think that non‑filing of an affidavit at the time of filing the execution petition is not fatal to the execution proceeding, but it constitutes a mere irregularity which can be cured at any stage of the execution proceeding. The section 13 only lays down a mere procedure. It does not create any substantive right in favour of the. J. Dr. So, violation of a procedural law does not make a proceeding void ab initio. It amounts to a mere irregularity which can be cured even now by filing an affidavit as required under section 13 of the Rent Control Ordinance.
"In the circumstances, the point No. 1 is decided against the applicant."
The propriety of this decision is challenged before me in this Court by the judgment‑debtor. Section 13 of the Ordinance says as follows:
"No process under the Code of Civil Procedure, 1908, in execution of a decree passed ex‑parte there under, shall be issued, either for the attachment of property, or for the arrest of any tenant, in connection with the recovery of the rent of any premises situated in any area to which this Ordinance may apply, unless the person applying for execution, when making his application, swears, or affirms by affidavit or otherwise that none of the rent, in respect of which execution is applied for, is irrecoverable under this Ordinance."
What happened was this that when the opposite party filed his application and prayed for attachment of the salary of the petitioner, who was a Government servant, the petition was not accompanied with an affidavit from the decree‑holder opposite party here stating that the amount decreed ex‑parse was not irrecoverable, or, in other words, that the decretal amount was recoverable. The petitioner here says that when the ex‑parte decree was passed, there was an application for standardization of the rent of the pre mises before the Rent Controller. It is an admitted fact now that the application for standardization of the rent has been refused. It is further an admitted fact that the decree-holder when prayed for attachment of the salary of the judgment -debtor, did not file the necessary affidavit as ordained by section 13 of the Ordinance aforesaid. Therefore, the only question that requires determination in this case is whether the process asking for attachment should have been issued in the absence of the necessary affidavit as contemplated in the section showing that the money was recoverable. The learned Munsif himself felt that there was force in the argument of the petitioner in the objection before him, but he by passed it by saying that as it had come to the knowledge of the Court that the application for standardization of rent had already been dismissed, so the decree that was passed ex‑parse and the amount decreed there was the amount which was recoverable, and, therefore, there was no duty cast upon the decree‑holder to file an affidavit for the purpose of getting an order of attachment. But a perusal of the order would show that the learned Munsif thought that even if an application was filed without necessary affidavit the defect could be cured at any time, even after the issue of process for attachment was prayed for. It is contended before me by the learned Advocate for the petitioner that this is not allowed under the Statute, while the learned Advocate for the opposite party maintains that the learned Munsif had been right in his interpretation of the provisions of the Ordinance. The only question, therefore, for determination in this case is whether a process issued without being accompanied by necessary affidavit as contemplated in section 13 of the Ordinance for attachment, as in this case, is maintainable or not. This question will have to be determined only on the interpretation of the language of the Statute, because there is no ambiguity in the language used.
It is sought to be argued before me by the learned Advocates appearing for both parties that I shall have to go to that vexed question whether this direction in the Ordinance under consideration is mandatory or directory; but I can briefly state the law on that subject as has been said in Craies on Statute Law, 5th Edition, at page 60:
"When a Statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done, are called imperative or absolute; but those, which are not essential, and may be disregarded without invalidating the thing to e done, are called directory."
Citing the cases of Montreal Street Railway Company v. Normandin (L R (1947) A C 170), and Bank View Mills Limited and others v. Nelson Corporation and another (L R (1943) King's Bench Division 337).
Keeping in view the aforesaid observations let us see whether the contention of the petitioner that as the applica tion for process for attachment was not accompanied with an affidavit stating that the amount for which execution was sought for was recoverable is maintainable in law. The language of the section as it appears to me, clearly supports the contention of Mr. Siddiky. It will be a mere barren display of research if I encumber this judgment by citing many authorities ; but I think that for the purpose of understanding the principle that would govern the present action, it will suffice if I refer to the well-known case of Hoi ward and others v. Bodington ((1877) L R 2 Probate Division 203) and the observations of Lord Penzance, if I may state with respect, at pages 210 and 217 in that case ,clearly lay down the principle that applies here. The other cases to which I like to refer in this context are the decisions in the case of Woodward v. Sarsons and Sadler ((1875) L R 10 Common Pleas 733). That decision, though old, have stood the test of time uptil this date. See also the observations of Lord Atkin in Smith v. Cammel Laird & Co. Ltd. (L R 1940 A C 242). This is the state of the law in England.
In this country, it appears to me that in similar circum stances and Statutory provisions, as concern us here, it has been uniformly held that where a Statute requires observation of certain formalities before a suit or an action (which is the common expression used in England regarding a suit) can be maintained, the non‑observance or violation of the Statutory, direction would make the suit or the proceeding a nullity. As for example, if we look to subsection 2 of section 69 of the Partnership Act, we find that there the words used are that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partners in the firm. The matter has engaged attention of almost all the High Courts in joint India as well as of the Lahore High Court which is in Pakistan. It has been the uniform view of the various High Courts, that unless, before the filing of a suit in respect of a partnership firm, the firm is not registered, it will not make the suit maintainable, though after the institution of the suit and during its pendency, the firm has been registered. A very full review of the case law on that subject will be found in the recent decision of the Calcutta High Court in the case of Dwijendra Nath Singh and another v. Govinda Chandra Samanta and another (57 C W N 225)., where Das Gupta, J., who delivered the judgment (and with whom Guha, J., concurred) observed at page 223 as follows:
" When the Legislature forbids the doing of an act it is not proper for a Court to allow the doing of that act by subterfuge; subsections (1) and (2) of section 69 forbid the institution of a suit by or on behalf of an unregistered firm. With the policy underlying that legislation we are not concerned but we are bound to give effect to the fiat of the Legislature. The only way we can do it is by dismissing the suit. Not to dismiss such a suit by reason of the fact of later registration is really to relieve the party who has not carried out the requirement of the law by means of a subterfuge."
If I may say so with respect, I entirely agree with the observa tions of Mr. Justice Das Gupta in that decision.
Now, if we consider the analogous provisions in section 80 of the Code of Civil Procedure, we do find that Viscount Sumner in the case of Bhagchand Dagadusa and others v. Secretary of State for India in Council and others ((1927) L R 54 I A 338 (357)), observed as follows:
"The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions."
There their Lordships of the Judicial Committee of the Privy Council have held that the suit cannot be regularised by filing notice under section 80 after the institution of the suit and before its hearing.
Now if we turn to the analogous provisions in sub section (2) of section 28 of the Provincial Insolvency Act, we find that a suit against an insolvent cannot be filed without leave of the Court and in order to file the suit this leave of the Court must be obtained previous to the filing of the suit, and if it is not done then the suit has been held to be incompetent. See the cases of Ghouse Khan v. Bala Subba Rowther (I L R 51 Mad. 833) and Davood Mohideen Rowther v. Sahabdeen Sahid (L R 1937 Mad. 841).
Next, if we now look to the analogous provisions in section 171 of the Companies Act, we find that when there has been an order for liquidation, a suit against a Banking Company cannot be competent without leave of the Court. It has been held in different High Courts that a suit will not be competent unless the leave has been obtained previously. I shall presently refer to a Full Bench decision of the Lahore High Court in the case of Nazir Ahmad and others v. Peoples Bank of Northern India Ltd. (In Liquidation) and others (I I L R 23 Lah. 517 (F. B.)), and I may mention here that that is one of the strongest support, on which Mr. De could have relied on.
Then if we now look to the provisions of certain penal Statutes, we do find, the something, as for example, in a case under the Drugs Control Order, 1943, which was taken to the Federal Court of India, as it was then constituted, namely, in the case of Basdeo Agarwalle v. King Emperor (1945 F C R 93), where the language of the Statute was that no prosecution for any contravention of the provision of that order should be instituted without the previous sanction of the Provincial Government. In dealing with that matter by the Federal Court, Sir Patrick Spens, C. J., observed that in those circums tances if the provisions in the Statute were not complied with namely, if the sanction was not obtained before the proceedings were started, that would make the proceedings null and void and that subsequent sanction would not validate it but that new proceeding should have to be commenced ab initio with fresh sanction. This view has also been shared by the Supreme Court of India in the case of W. H. King v. Republic of India and another ((1952) S C A 306 (C W N Supplt.)), and it has been observed by Aiyar, J., that where a Statute creates an offence and imposes a penalty, fine and imprisonment, the words of the section must be strictly construed in favour of the subject ; and there his Lordship was interpreting section 19 (1) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947.
The aforesaid observations of mine and the observations in the decided cases clearly indicate that the direction given in the Statute in order to enforce a right is within the nature of a remedy and is valuable not only in itself but also as a means to an end. Mr. Siddiky bases his entire argument on the language used in the section and if I have properly under stood his argument ; it is this that the language in section 13 of the Ordinance for consideration before me is express, explicit and mandatory and it admits of no implication or exception. Therefore, Mr. Siddiky argues that before the process for attachment of his client's properties was issued the application filed by the decree‑holder opposite party should have been accompanied with an affidavit stating that the amount of the ex‑parse decree was recoverable, and that not having been done this issue of process for attachment of the salary of the petitioner was without jurisdiction, so the order of the Munsif must be vacated as void.
Mr. De appearing for the opposite party, as I have under stood him, says that these Statutory provisions are not always safe guides. Mr. De further argues that in the circumstances revealed from the record of this particular case, there are very good grounds for creating sympathy in favour of his client, but even if I hold that it is so, and as presently advised I am also of the same opinion with Mr. De, but those grounds do not supply any legal reason for ignoring the words used in section 13 of the Ordinance. Mr. De. then argues that section 13 is but part of a procedure enacted to provide a regulation and a machinery through which the Court may do justice to the parties. Therefore, a construction which may lead to injustice should not be adopted and more so such a construction would lead to repugnance. This argument is very plausible on the face of it. But it must be understood that when the words of a Statute are plain and unambiguous, a Court cannot refuse to give them their natural meaning, because of a possibility of hardship or injustice. Secondly, it is no use trying to go behind the plain words of the Statute and trying to find out what must be the reason behind the words as they have been used. The duty of the Court is to read the words in accordance with their natural meaning, and if that is done, as I have tried to indicate, there is no other meaning that can be attached to the plain words. The Courts are to give the plain words their natural meaning and the Courts cannot give any other meaning to them. As I have already observed that section 13 directs the decree‑holder to file an affidavit showing that the amount decreed in the ex‑parse decree was recoverable, there is an explicit and mandatory direction and there is no implication or exception, and that being so, there is no escape from the conclusion that what has been done in this particular case cannot be justified. It, therefore, appears to me that the proceeding here in respect of the attachment is unsustainable. The reason is that it was commenced without following the procedure prescribed by law ; or in other words, the process was issued for attachment before the Statutory provision was complied with, and there fore, that part of the proceedings must fail. If the creditor has chosen to take this course, he is to thank himself for consequence thereof. It has been said in the trial Court and that has been reiterated here by Mr. De also, that since then the necessary formalities had been complied with. The only answer to that argument is, to use a cant expression, that it is, of course, easy to be wise after the event.
Now, if we try to find out the intention of the Legislature by looking into the different provisions in the Ordinance, it will be clear that it was enacted by the Legislature with the expressed intention that whenever there was an ex‑parse decree obtained by a landlord for recovery of arrears of rent in respect of urban properties or where the Ordinance was made applicable by the Provincial Government, in order to avoid all further complications in the matter, the decree‑holder because of the ex‑parte decree must file an affidavit stating that the amount of the decree was recoverable and such a safeguard was necessary before the decree‑holder could be permitted to attach the property of the judgment‑debtor or to arrest him. This is a salutary principle, and I cannot express it better than in the words of the learned Chief Justice Spens in the case of Basdeo Agarwala. I feel it worth quoting in this connection what has been said by Lord Simonds in the case of Nagor and St. Mellons Rural District Council v. Neport Corporation ((1951) 2 All. Eng. Rep. 839). What has been said by Lord Simonds is the following:
"It is sufficient to say that the general proposition that it is the duty of the Court to find out the intention of Parlia ment and not only of Parliament but of Ministers also cannot by any means be supported. The duty of the Court is to interpret the words that .the Legislature has used. Those words may be ambiguous, but, even if they are the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited."
In this connection we may also refer to what was said by justice Aiyar when interpreting the Bihar Money Lenders Act in the Supreme Court of India in the case of Ram Nandan Prasad Narayan Singh and others v. Mahanth Kapildeo Ramjee and others ((1952) S C A 13 (20) (C W N Sup.)), the learned judge expressed himself as follows :
"If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legislature to intervene. But so far from doing so, it has acquiesced, during all these years, in the construction, which the Patna High Court has been placing upon the section from the very next year after the enactment of Statute."
I have confined myself to my remarks so far as the reme dial Statutes are concerned and the present Ordinance is one of the remedial Statutes ; and if it so, in order to construe a provision in that Statute, a Court must keep in its view the fact that. it should be construed so as to give relief to the class intended to be relieved. That has been the view which has been taken by the Privy Council in the case of Thakur Ranghuraj Singh v. Rai Bahadur Lala Hari Kishan Das and another ((1943) L R 711 A 56), where their Lordships of the Privy Council were dealing with an Agriculturists Relief Act as prevalent in the United Provinces. The same view was taken by the Federal Court of India as regards the interpretation of the provisions of the Bengal Money Lenders Act, which was admittedly a remedial Statute, and there in the case of Rai Ram Taran Banerjee Bahadur v. Mrs. D. J. Hill and others (A I R (1949) F C 135), the same principle was reiterated by Mahajan, J. at page 139 of the report. Therefore, if we test the present question in the light of the aforesaid observations, it appears to me that the provisions of section 13 of the Ordinance XXII of 1951 clearly direct that before the application for a process for attachment of the judgment‑debtor's property can be issued, the decree holder along with the petition must file an affidavit to the effect that the amount of the ex‑parte decree is recoverable and that not having been fulfilled in this case, all proceedings on the basis of that application for attachment must be declared to be void and of no effect.
I shall now deal with what has been urged by Mr. De referring to the case of Nazir Ahmad and others v. People's Bank of Northern India Ltd. and others. That was a case where the question arose whether the suit against the Banking Company was maintainable without leave of the Court as contemplated in section 171 of the Companies Act. The view of the Lahore High Court has been that if this leave is obtained during the pendency of the proceedings and before the final order, that would be a sufficient compliance, and non compliance with the provisions before the institution of the suit will not make the proceeding void. In that case the objection was that the suit was not maintainable, as I have already pointed out. The learned Judges there held that where the plaintiff instituted a suit against the Company in liquidation without leave of the Court under section 171 and subsequently applied for such leave within the period of limi tation of the suit but the leave was granted only after the period of limitation had expired, the suit should not be dis missed and limitation should be calculated in the same way as if the suit had originally been instituted with leave. In that case Mr. Justice Ramlal, one of the learned judges constituting the Full Bench considered the provisions of section 69 of the Partnership Act and he opined that if the firm was registered before the order was finally passed that would validate the suit. Without going into details, I may say with utmost respect to that learned Judge that I fail to understand how the notion of the right to enforce a claim being created by the decree could be brought in, in the construction of the plain words of the section. The words of the section (as we are concerned here) do not say anything with regard to the right to enforce a claim being granted by the order of the decree. They only refer to the institution of the proceeding to enforce a right arising from the Statutory provision in section 13 of the Ordinance. What is required here is that before the institu tion of a proceeding for issue of a process for attachment or arrest something should be done and if that is not done that would not validate the proceeding. Then again I shall in this connection refer to the observations of Sir Arther Harris C. J., in the case of Firm Laduram Sagarmal v. Jamuna Prasad Choudhri and others (I L R 18 Pat. 114 : I R 1939 Pat. 239), where the learned Chief Justice, while dealing with a case under section 69 of the Partnership Act observed as follows ‑at page 241 of the A I R report:
"A plaint filed by‑ an unregistered firm is in effect no plaint at all because section 69 makes claims arising out of a contract unenforceable if the firm is unregistered at the date of the suit. An unregistered firm has no right to sue and a plaint filed by it has no legal effect. If at the time the plaint is filed the claim is bound to fail, I cannot see how subse quent registration can improve the position."
I have already said that the latest view of the Calcutta High Court is in accordance with what has been laid down in the Patna decision. The learned Chief Justice Harris then observed as follows:
"In neither of the cases cited on behalf of the appellant is any authority cited which would enable a Court to treat a suit as being instituted months later than the date upon which it was in fact instituted. In my view the crucial date is the date of the institution of the suit. If on that date the suit was bound to fail, nothing that happens subsequently can give the plaintiff aright to sue. The case is very similar to a case where a plaintiff brings a suit prematurely. If it is held that he had no cause of action at the date of the insti tution of the suit, then it does not avail him in the slightest to show that his cause of action did come into existence a few days after the filing of the suit. If the plaintiff had no cause of action when the suit was filed, then such a suit is bound to fail, though a cause of action might come into existence within a very short time after the institution of the suit."
For all these reasons, I hold that the decision of the learned Munsif is wrong, and his decision in that regard must be set aside.
Another question was sought to be argued before me, and as it was sought to be argued by Mr. De, I shall notice it here. It is this, whether this Court should interfere in a matter like the present under section 115 of the Code of Civil Procedure. If I may recall here with great respect, what has been said by their Lordships of the Judicial Committee of the Privy Council recently in two cases, where the judgments were delivered by the same learned judge, I mean, Sir John Beaumont, viz., in the case of N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowment Board, Madras (L R 76 I A 67:53 C W N 458 (P. C).), and later in the case of cloy Chand Lal Babu v. Kamalaksha Choudhury and others (L R 761 A 131:53 C W N 562 (P. C).). But if closely examined one feels a very great embarrassment in reconciling their Lordships' views in those two cases. Whatever might have been the view, the matter has been clinched very recently by the decision of the Supreme Court of India in the case of Keshardeo Chamaria v. Radha Kissen Chamaria and others, and Radha Kissen Chamaria and others v. Keshardeo Chamaria (1952 8 C A 775 (C W N Supplt.)), and there Mr. Justice Mahajan, who delivered the judgment of the Supreme Court, went into that matter and concluded with approval what was said by Sir John Beaumont in the latter of the aforesaid two decisions reported in 76 I A 131 (ante) and that observation is in the following words:‑
"There have been a very large number of decisions of Indian High Courts on section 115, to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under subsection (c) nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection. (b), and subsection (c) can be ignored."
In this particular case it is clearly one which comes within subsection (a) or (b) of section 115 of the Code of Civil Procedure, and in that view of the matter I am of opinion that I shall be within my jurisdiction to interfere in this matter because a the learned Munsif has committed an error of law. It should be understood that I am not in any way trying to say anything against what has been held by their Lordships of the judicial Committee of the Privy Council in the case of Rajah Amir Hassan Khan v. Sheo Baksh Singh ((1884)‑L R 111 A 237), and the case of Balakrishna Udayer v. Vasudeva Aiyar ((1917) L R 44 I A 261). But what I am saying here is this that the recent decision of the Privy Council and that of the Supreme Court of India have held that in a case where there has been an exercise of jurisdiction in viola tion of a Statutory provision, such as in this case in .the viola tion of a Statutory provision. in section 13 of the Ordinance the High Court has jurisdiction under section 115 of the Code of Civil Procedure to interfere in the matter, as has been held by the Supreme Court of India.
I shall be failing in my duty if I do not notice here that the view I am taking here does not in any way conflict with the view taken by my learned brother, Mr. Justice Badiuzzaman, on the question of interpretation of section 13 of the Ordi nance in Civil Revision Case No. 164 of 1952, because there the question in its present form was not mooted before his Lordship. Therefore, that decision does not stand in my way one way or the other in taking the view I have expressed above. Therefore, considering the matter in its various aspect, I am of opinion that section 13 of the Ordinance is an impera tive provision and its compliance is necessary before a process for execution of an ex‑parte decree for house rent in respect of Urban properties for the purpose of attachment or arrest could be issued and unless it was accompanied by an affidavit to the effect that the amount of the decree was recoverable, the execution of the ex‑parte decree for attachment or arrest of the judgment‑debtor would not be maintainable.
The result, therefore, is that this rule is made absolute, but in view of the conduct of the defendant petitioner as revealed from the record, he will not be entitled to get any costs either in this Court or in the trial Court.
There is another matter which needs clarification, and it is this that this matter has come up before me only from an objection under section 47 of the Code of Civil Procedure in the execution of the decree by attachment of the judgment debtor's property or salary as the case may be and to that extent only this objection of the judgment‑debtor is held to be maintainable.
It has been represented to me by the learned Advocates appearing before me that a sum of Rs. 225 has already been deposited in Court. If that be so, that sum must remain in Court and if the decree‑holder has already withdrawn that amount it must be re-deposited in Court and the judgment- debtor shall not be entitled to withdraw that amount until the final conclusion of such a properly constituted execution case. It should also be understood that if the decree‑holder has not withdrawn that sum of Rs. 225, which has already been deposited in Court by the judgment‑debtor, then the only order which need be passed here is that the decree‑holder should not withdraw that amount of Rs. 225 until the final disposal of a freshly instituted execution case in accordance with law.
K. M. A./A. H. Rule made absolute.
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