dedol-hf/india-case-legal-rag huggingface dataset:
their words as follows:--
    "It  is  no  doubt somewhat odd that when  a  person  is
declared liable to pay a larger amount he should on
298
payment  or  tender  of a smaller amount  get  his  property
exonerated from liability but this is inherent in and arises
out of the proposition established by the decisions  already
dealt with, namely, that by the application of the principle
of  unity  and indivisibility of a mortgage  decree  a  non-
agriculturist  can  indirectly get relief  which  he  cannot
directly get".
    It  seems  to us that the High Court's approach  to  the
case  has  not been a proper one and the conclusion  it  has
reached cannot be supported in law.
The  learned Judges appear to have overlooked  the  fact
that they were sitting only as an executing court and  their
duty was to give effect to the terms of the decree that  was
already  passed  and beyond which they could not go.  It  is
true  that they were to interpret the decree, but under  the
guise of interpretation they could not make a new decree for
the parties.
    As  said above, the mortgage decree was scaled  down  by
the  High Court in favour of defendants 2 to 7 only and  the
amended decree directs that the said defendants do pay  into
court the sum of Rs. 49,255 with certain interest and  costs
on  payment of which the plaintiff was to bring  into  court
all the documents in his power or possession relating to the
mortgage  and  reconvey  or retransfer the  property  if  so
required. So far as defendant No. 1 is concerned, the decree
states in clear and express terms that he is to pay the  sum
of  Rs.  1,05,000 and odd and it is on payment of  this  sum
only  that  redemption  would be allowed  of  the  mortgaged
property. If the decision of the High Court is correct, this
direction  in the decree would be manifestly  unmeaning  and
without any effect. What is said, however, on behalf of  the
respondent is  that he is not claiming any benefit in viola-
tion of this clause. By virtue of the decree against defend-
ants  2 to 7 being satisfied, the entire mortgaged  property
would,  by force of the very decree, be freed from the  debt
and if the respondent gets any benefit thereby, such benefit
would  be merely incidental or consequential in its  nature.
The High Court agreed in substance with this contention
299
and based its decision entirely upon the view that by opera-
tion  of  the principle of indivisibility  of  the  mortgage
decree, a non-agriculturist debtor, whose debt has not  been
scaled  down  under the provisions  of  the  Agriculturists'
Relief  Act,  may indirectly get the benefit of  the  relief
which has been granted to his agriculturist co-debtor  under
the provisions of the Act.
    The general law undoubtedly is that a mortgage decree is
one and indivisible and exceptions to this rule are admitted
in special circumstances where the integrity of the mortgage
has been disrupted at the instance of the mortgagee himself;
e.g., when there is severance of the interests of the  mort-
gagors with the consent of the mortgagee or a portion of the
equity  of redemption is vested in the latter. It is  to  be
noted,  however, that the Madras Agriculturists' Relief  Act
is  a  special statute which aims at giving  relief  not  to
debtors in general but only to a specified class of debtors,
viz.,  those who are agriculturists as defined in  the  Act.
To this extent it trenches upon the general law and  section
7  of the Act expressly provides that  "notwithstanding  any
law,  custom, contract or decree of court to  the  contrary,
all debts payable by an agriculturist at the commencement of
this Act shall be scaled down in accordance with the  provi-
sions of this chapter". Thus in case of a mortgage debt when
the  loan has been advanced to more than one person, if  one
of  the debtors happens to be an agriculturist while  others
are  not, the agriculturist debtor would certainly be  enti-
tled  to have his debts scaled down under the provisions  of
the  Act  in  spite of the provision of  general  law  which
prevents  a  mortgagor  from denying the  liability  of  the
interest which he owns in the mortgaged property to  satisfy
the entire mortgage debt. There is, therefore, nothing wrong
in law in scaling down a mortgage decree in favour of one of
the judgment debtors, while as regards others the decree  is
kept  intact.  The Madras High Court expressly adopted  this
view in Rainier v. Srinivasiah (1), which is one of the
(1) [1940] 2 M. 39
    39
300
decisions  referred  to in the judgment appealed  from.  The
fact  that in that case it was a puisne mortgagee and not  a
mortgagor  whose application for relief under section 19  of
the Madras Agriculturists' Relief Act was allowed, does  not
make  any difference in principle. The puisne mortgagee  was
made  a party defendant in the suit instituted by the  first
mortgagee  to recover his dues and as the  puisne  mortgagee
was  liable to pay the debt due to the first  mortgagee,  he
was  held  to be a debtor and hence entitled  to  claim  the
benefit of section 19 of the Agriculturists' Relief Act.  It
may be mentioned here that section 14 of the Madras Agricul-
turists' Relief Act which provides for separation of a  debt
incurred by a Hindu family, some members of which are  agri-
culturists while others are not, affords a clear  indication
that  the  splitting up of a debt in such  circumstances  is
quite in accordance with the scheme of the Act.
    The catena of cases upon which the learned Judges of the
High  Court  relied in support of their  decision  seems  to
proceed on a different principle altogether and whether that
principle  is  right or wrong, it has, in  our  opinion,  no
application  to  a case like the present. In this  class  of
cases, the mortgagors were agriculturists and hence entitled
to  have their debts scaled down under  the  Agriculturists'
Relief  Act,  but  there were purchasers  of  the  mortgaged
property who were not agriculturists, and the question arose
whether a purchaser could get the benefit of the debt scaled
down  in favour of the original debtors. This  question  was
answered in the affirmative. The reason for taking this view
was  thus given by the learned Judges in Arunachalam  Pillai
v. Seetharam(1), where the purchase of the equity of redemp-
tion was at an execution sale:--
    "When  the 12th respondent purchased the  properties  in
court  auction,  he took them subject to the burden  of  the
appellant's  mortgage and if the burden is by reason of  the
provisions  of s. 8 refer.red to above reduced without  pay-
ment, the purchase proves to that
   (1) [1941] 1 M.L.J. 561
301
extent an advantageous one, and there is nothing in the  Act
to  deprive him of the fruits of his. lucky  purchase,  even
though  he is not an agriculturist. He gets the  benefit  of
the scaling down not because the provisions of the Act apply
to him, for obviously they do not, but because such  benefit
is  a necessary incident of his purchase under  the  general
law and the Act does not deprive him of it."
    A somewhat different reason was assigned in Pachigola v.
Karatam(1) which however was a case where a portion of  the.
equity  of  redemption was transferred to a purchaser  by  a
private  sale.  It was held that the court by  allowing  the
mortgagor to redeem the mortgage sale was not conferring  on
the purchaser, a non-agriculturist, the benefit of the  Act,
as he would have to refund to  his vendor the purchase money
reserved with him   which as a result of the scaling down he
would  not   have  to pay to the mortgagee.  In  both  these
cases, the question was raised in the proceeding for scaling
down  of the decree under the provisions of the  Agricultur-
ists'  Relief  Act itself and not at  the  execution  stage.
There   is  however the case of Subramanian  v.  Ramachandra
(2),  where the question arose in course of  execution  pro-
ceedings  and  a  purchaser of a portion of  the  equity  of
redemption  was  held to be entitled to the benefit  of  the
scaled down decree in favour of the mortgagors, although his
own application for relief under the Act was refused.  It is
not  necessary  for  purposes of this case  to  express  any
opinion  as to the correctness or otherwise of  these  deci-
sions.  It is enough to say that the ratio decidendi in  all
these cases is not applicable to the case before us. In  the
present  case  there  is  no  purchaser  of   the  mortgaged
property  and consequently there is no question of the  pur-
chaser, who is not an agriculturist himself, being  entitled
to  the  benefit of a decree which has been scaled  down  in
favour  of the agriculturist mortgagor.   Here   the   judg-
ment-debtors  are the mortgagors themselves and according to
the plain provisions of the Agriculturists' Relief Act there
could
(1) [1949] 1 M.L.J. 506.         (2) [1946] 2 M. L. J. 429.
302
not  be any objection to a decree for reduced  amount  being
passed  against  an  agriculturist debtor,  while  the  same
relief is not given to his co-debtors who do not fulfil that
description.
    Some  exception could undoubtedly be taken to  the  form
and  wording  of  the decree that has  been  passed  in  the
present  case. The decree, in our opinion, should  not  only
have  stated the amount payable by defendant No. 1 and  that
by  defendants 2 to 7 separately but should  have  expressly
directed ,that on payment of the amount directed to be  paid
by  defendants 2 to 7 their interest alone in the  mortgaged
property would not be liable to be sold.  The further direc-
tion  should  have been that in case they did not  pay  this
amount, the whole of the mortgaged property including  their
interest would be sold for the entirety of the mortgage debt
for which defendant No. 1 was made liable.  It is true  that
the decree contains no such clear directions but reading the
decree  as a whole and having regard to the actual  decision
in  the  case, this must be taken to be its  plain  implica-
tions.  The-subsequent agreement between the parties arrived
at  in  course  of the execution proceedings  by  which  the
decreeholders  agreed to release the interest  of  defendant
No. 2 and that of defendants 3 to 7 separately on payment of
certain  specified amounts by 'them proceeds clearly on  the
assumption that the mortgage debt and the security have been
split  up,  and in our opinion it is not  possible  for  the
defendant  No. 1 to contend that the mortgage debt  remained
indivisible.   Our conclusion is that the view taken by  the
District Judge was right and should not have been disturbed.
    The  result is that the appeal is allowed, the order  of
the  High Court is set aside and that of the District  Judge
restored.   We  make no order as to costs  of  this  appeal.
                             Appeal allowed.
Agent for the appellants: M.S.K. Sastri.
Agent for the respondent: M.S.K. Aiyangar.
303
PETITIONER:
D. STEPHENS
        Vs.
RESPONDENT:
NOSIBOLLA
DATE OF JUDGMENT:
02/03/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
CITATION:
 1951 AIR  196            1951 SCR  284
 CITATOR INFO :
 RF         1954 SC 266  (11)
 F          1955 SC 584  (3)
 R          1962 SC1788  (4)
 R          1968 SC 707  (8)
 R          1970 SC 272  (10)
 RF         1973 SC2145  (4,8,9)
R          1975 SC 580  (4)
 R          1978 SC   1  (15)
 R          1986 SC1721  (9)
ACT:
    Criminal  Procedure Code, 1898, ss.  417,  439--Revision
against  order of  acquittal--Interference--Guiding  princi-
ples--Indian  Merchant  Shipping Act, XXI of 1923,  ss.  25,
26--Supply  of  seamen-Constitution of Board  by  owners  of
ships  and  seamen for recruitment of  seamen--Levy  of  one
rupee  from each seaman towards expenses  of  Board--Whether
contravenes  ss. 25,  26--Giving of muster  card  permitting
appearance  at  muster--Whether  amounts  to  "engaging   or
supplying" seamen.
HEADNOTE:
    The revisional jurisdiction conferred on the High Court
under s. 439 of the Code of Criminal Procedure is not to  be
lightly exercised when it is invoked by a private  complain-
ant against an.order of acquittal, against which the Govern-
ment has a right of appeal under s. 417.  It could be  exer-
cised  only  in  exceptional cases where  the  interests  of
public justice require interference for the correction of  a
manifest illegality or the prevention of a gross miscarriage
of justice.  This jurisdiction is not ordinarily invoked  or
used  merely because the lower Court has taken a wrong  view
of the law or misappreciated the evidence on the record.
    Shipowners  had an organisation in Calcutta  called  the
Calcutta Liners' Conference and the seamen had an  organisa-
tion
285
called the Joint Supply Office.  As a result of a collective
agreement  between  the  owners of  the ships and the   sea-
men's  representatives,  the Calcutta Maritime  Board  which
contained  an equal number of members representing the  Cal-
cutta  Liners'  Conference and the Joint Supply  Office  was
established.   The seamen presented themselves  before  this
Board  and were given muster cards which permitted  them  to
appear  at the musters where the captains of the  ships  en-
gaged seamen.  For meeting the office expenses of the  Board
the  owners used to pay Rs. 2 per seaman engaged  and  after
engagement  each seaman paid Re. 1 to the owner as his  con-
tribution  towards  these  expenses.  The  accused  was  the
secretary of the Liners' Conference and an ex officio honor-
ary  joint  secretary of the Maritime Board,  and  a  seaman
filed a complaint against him that, as he had collected  Re.
1  from him for the issue of a muster card he had  committed
an  offence under s. 26 (2) of the Indian Merchant  Shipping
Act:
    Held,  that  the seamen to whom the  master  cards  were
given  by the Maritime Board were not "engaged or  supplied"
by  the Board or by any of its officers, nor was the sum  of
Re.  1 which was levied out of the seaman's wages  after  he
signed an agreement of employment, remuneration received for
providing  the man with employment, and the accused was  not
guilty of any offence under s. 25 or s. 26 of the Act.
JUDGMENT:
    CRIMINAL  APPELLATE  JURISDICTION  :  Appeal   (Criminal
Appeal No. 19 of 1950) against the orders of the High  Court
of Judicature at Calcutta dated 21st January, 1949, and 29th
August,  1949, in Criminal Revision Cases Nos. 1007 of  1948
and 527 of 1949.
    S.P.  Sinha (S. N. Mukherjee, with him) for  the  appel-
lants.
B. Sen for the respondent.
    1951.  March 2. The judgment of the Court was  delivered
by
CHANDRASEKHARA  AIYAR J.--This appeal comes up before us  on
special leave granted by His Majesty's Order in Council  and
it  is directed against orders made by the Hon'ble Mr.  Jus-
tice Sen of the High Court of Judicature at Fort William  in
Bengal,  directing a retrial of the appellant  D.  Stephens,
who had been acquitted by the Chief Presidency Magistrate of
contravening  the  provisions of section 26  of  the  Indian
Merchant Shipping Act.
286
    The  facts that gave rise to this prosecution  are  cor-
rectly  set out in the  following two paragraphs  which  are
quoted  from  the judgment of the learned  Chief  Presidency
Magistrate:--
" The owners of the ships have an organisation known  as
the  Calcutta Liners' Conference.  The seamen have an organ-
isation know as the Joint Supply Office.  Since 1940-41  the
licensed  broker  system for engagement of seamen  had  been
abolished.  The Calcutta Maritime Board was established as a
result  of a collective agreement between the owners of  the
ships and seamen's representatives for recruiting seamen. It
is a joint negotiating machinery between the owners and  the
seamen  for direct engagement of seamen by the owners.   The
Joint Supply Office does not supply the seamen.  The Calcut-
ta  Maritime Board also does not supply nor  engage  seamen.
The  engagement is made by the Captains of the  Ships.   The
Calcutta  Maritime ,Board, at the relevant time, was  formed
of  equal members representing the Calcutta Liners'  Confer-
ence (the owners) and the Joint Supply Office (the  seamen).
At  the  present  moment the Government of  India  have  two
representatives  in the Calcutta Maritime Board.  There  are
two Joint Chairmen and two joint Secretaries, one each  from
each  group  of the owners'  and  seamen's  representatives.
Accused  Stephens is the Secretary of the  Calcutta  Liners'
Conference and is a paid officer.  His salary is paid by his
employers,  the Calcutta Liners' Conference, with  contribu-
tions  obtained from the owners of the ships whose  associa-
tion  the  Conference is. The accused is one  of  the  Joint
Secretaries  of the Calcutta Maritime Board in his  capacity
as  the Secretary of the Calcutta Liners'  Conference.   The
Joint   Secretaries  of  the Calcutta  Maritime  Board  hold
honorary posts and receive no remuneration."
     "The  procedure for recruitment now is that the  seamen
present themselves before the Calcutta Maritime Board.  They
are  given muster cards which permit them to appear  at  the
musters  where the Captains of the ships engage the  seamen.
The Board
287
endeavours  to lay down a procedure for the Captains of  the
ships while engaging seamen. There is an excess of supply of
seamen  over the demand. This had brought in corruption.  To
fight  out corruption, the Calcutta Maritime Board was  con-
ceived  to find out a procedure for the owners of the  ships
for  employing seamen by rotation.  For meeting  the  office
expenses  of the Calcutta Maritime Board the owners, at  the
relevant  time used to pay Rs. 2 per seaman engaged.   After
signing  on, each seaman pays back the owners Re. 1  as  his
contribution  towards office expenses of the Calcutta  Mari-
time  Board.  None of the facts stated above  was  contested
for the complainant."
    The  complainant Nosibolla alleged that the  accused  as
Joint Secretary of the Board collected an illegal charge  of
Rupee  one  from  him for issue of a muster  card  and  thus
contravened  section 26 of the Indian Merchant Shipping  Act
and that he was, therefore, guilty of an offence within  the
meaning of sub-clause (2) of that section. The Chief  Presi-
dency Magistrate acquitted the accused of the charge but  on
revision  the  High Court at Calcutta  directed  a  retrial,
holding that the accused clearly contravened the  provisions
of section 25 of the Act, and that if the complainant was to
be  believed  when he said that the accused received  Re.  1
before registration, he was also guilty under section 26  of
the Act; and both parties were allowed to adduce  additional
evidence.  This second trial again ended in an acquittal  by
the  Chief Presidency Magistrate who came to the  conclusion
that  the accused did not supply or engage seamen,  that  he
did not receive any payment of Re. 1 for issuing the  muster
card  to the complainant and that Re. 1 which  is  collected
from the seamen by the shipowners after employment by way of
deduction  from  wages is paid not as  remuneration  to  the
accused  or any one else, but is really a  contribution  to-
wards the expenses of the Joint Supply Office working  under
the  Calcutta  Maritime Board. There was  again  a  revision
petition  taken  to  the High Court against  this  order  of
acquittal  and  it was heard by the same  learned  Judge  as
before. He differed from
288
the  Chief Presidency Magistrate on all the material  points
and sent the case back again for a fresh trial in a judgment
which  contains findings almost amounting to a direction  to
the  Chief Presidency Magistrate to convict the accused.  In
the  learned  Judge's  view the issue of a  muster  card  to
seamen amounted to the "supply" of seamen within the meaning
of section 25 of the Act. The receipt of Re. 1 was a  demand
for  remuneration within the meaning of section 26, even  if
it  was ultimately spent for expenses of the running of  the
Joint  Supply Office and that a demand for payment would  by
itself constitute the offence, whether the money was actual-
ly received or not.
    It  is  against this interference in revision  that  the
present  appeal was lodged before the Judicial Committee  of
the  Privy  Council on the ground that the  jurisdiction  to
direct a retrial was so exercised in the case as to  consti-
tute.  an infringement of the essential principles  of  jus-
tice.
    Before   entering into  a short discussion of the  ques-
tion  whether the view taken by the High Court is  right  or
wrong,  it would be useful to set out the relevant  sections
of the Merchant Shipping Act.
    "24.  (1)  The  Central Government or  any  person  duly
authorised  by  the Central Government in  this  behalf  may
grant  to  such  persons as may be deemed  fit  licences  to
engage or supply seamen for merchant ships in British India.
    (2) Any such licence shall continue for such period, and
may  be granted and revoked on such terms and conditions  as
the Central Government thinks proper.
    25.  (1) A person shall not engage or supply a seaman to
be  entered on board any ship in British India  unless  that
person  either holds a licence under this Act for  the  pur-
pose,  or is the owner or master or mate of the ship, or  is
bona  fide the servant and in the constant  employ   of  the
owner, or is a shippingmaster.
    (2) A person shall not employ, for the purpose of engag-
ing a seaman to be entered on board any ship
289
in British India, any person unless that person either holds
a licence under this Act for the purpose. or is the owner or
master or mate of the ship, or is bona fide the servant  and
in  the constant employment of the owner, or is  a  shipping
master.
(3)  A person shall not receive or accept to be  entered
on  board any ship any seaman if that person knows that  the
seaman has been engaged or supplied in contravention of this
section.
    (4) If a person acts in 'contravention of this  section,
he  shall for each seaman in respect of whom an  offence  is
committed  be liable to a fine which may extend to one  hun-
dred  rupees, and,  if a licensed person, shall forfeit  his
licence.
    26. (1) A person shall not demand or receive directly or
indirectly,  from  any seaman, or from  any  person  seeking
employment  as a seaman, or from any person on  his  behalf,
any remuneration whatever for providing him with  employment
other than the fees authorised by this Act.
    (2)  If a person acts in contravention of this  section,
he  shall for each such offence be liable to pay a  fine  of
fifty  rupees, and, if a licensed person, shall forfeit  his
licence."
    On  the facts as admitted or proved in the evidence,  it
is difficult to see what offence the accused has  committed.
Neither  the Calcutta Maritime Board, nor the Calcutta  Lin-
ers' Conference supply the seaman. The registration entitles
the  seamen to get muster cards which enable them to  appear
at the musters, and there, the Captains of the ships  select
and  engage  the  seamen.  It is after  this  selection  and
engagement that the body of shipowners, called the  Calcutta
Liners' Conference, pay Rs. 2 to the Calcutta Maritime Board
out  of which Re. 1 is their Own contribution and Re.  1  is
the  contribution  by the seaman which is deducted from  his
wages.  There is therefore no supply of a seaman within  the
meaning of section 25 of the Act.  A number  of seamen offer
themselves for employment and they are all gathered together
at a
290
place,  so  that the shipowner or Captain of  the  ship  may
select whomsoever he pleases.  There is no obligation on the
owners of the ships to select any particular person, nor  is
any such selection made by the Maritime Board either direct-
ly or through its servants for the benefit of the owners and
for  employment under them. The Calcutta Maritime  Board  of
which  the  accused  is an honorary Joint  Secretary  is  an
institution  that was created in the end of 1947,' with  the
knowledge,  ii not the approval, of the Government of  India
as a liaison body or institution to bring the owners and the
seamen together, with reference to the engagement of  seamen
for  ships.  The labour corps is brought into  contact  with
the owners by the  Maritime  Board through the Joint  Supply