Case: Raja Shantrunji Vs. Moazmat Azmat Azim Khan &amp; Ors

be resorted to and full effect must be given to the statutory fiction and it should be carded 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. 12. This Court in the Bombay case referred to the observations of Lord Asquith in East End Dwellings Co., Ltd. v. Finsbury Borough Council, 1952 AC 109 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 the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it .................. The statute bays that you mud 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 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. 13. 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-debtor 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 immediately previously in that order. The grounds for review are the 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, (1900) 27 Ind App 197 (PC), 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 appellants 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 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive. 14. The appellant (judgment debtor or appellant before High Court?) 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 circumstances of the case. The appeal from the order of the Special Judge. Kheri was heard by the High Court and, therefore, the appellant 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 appellants 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 pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the appellant. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. 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 under 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, 1950The appellants 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 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive14. The appellant (judgment debtor or appellant before High Court?) 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 circumstances of the case. The appeal from the order of the Special Judge. Kheri was heard by the High Court and, therefore, the appellant 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 appellants 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 pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the appellant. 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 heard13. 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 ther 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 ther 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 immediately previously in that order. The grounds for review are the 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, (1900) 27 Ind App 197 (PC), 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.