dedol-hf/india-case-legal-rag huggingface dataset:
(3) Where the sums repaid by way of principal or  inter-
est or both fall short of twice the amount of the principal,
such  amount  only as would make up this  shortage,  or  the
principal amount or such portion of the principal amount  as
is outstanding, whichever is smaller, shall be repayable.
    (4)  Subject  to the provisions of sections  22  to  25,
nothing contained in sub-sections (1), (2) and (8) shall  be
deemed  to require the creditor to refund any sum which  has
been paid- to him, or to increase the liability of a  debtor
to pay any sum in excess of the amount which would have been
payable by him if this Act had not been passed.
813
    Explanation.--Where a debt has been renewed or  included
in  a  fresh document in favour of the  same  creditor,  the
principal  originally advanced by the creditor together with
such  sums,  if any, as have been subsequently  advanced  as
principal shall alone be treated as the principal sum repay-
able by the agriculturist under this section.
    19. Where' before the commencement of this Act, a  Court
has  passed a decree for the repayment of a debt, it  shall,
on the application of any judgmentdebtor who is an  agricul-
turist  or in respect of a Hindu joint family debt,  on  the
application of any member of the family whether or not he is
the  judgment-debtor  or on the application of  the  decree-
holder, apply the provisions of this Act to such decree  and
shall,  notwithstanding  anything contained in the  Code  of
Civil Procedure, 1908, amend the decree accordingly or enter
satisfaction, as the case may be:
    Provided  that all payments made or  amounts  recovered,
whether  before  or after the commencement of this  Act,  in
respect of any such decree shall first be applied in payment
of all costs as originally decreed to the creditor."
    These sections are material, because in the present case
the  judgment debtors asked the decree to be  amended  under
section  19 of the Act and they were held to be entitled  to
relief under section 8.
    Having  referred to the relevant provisions of the  Act,
it  becomes necessary now to state the main findings of  the
High Court upon which the decision of this appeal will turn.
These findings are-
    (1)  that the sale of Tedlam village, which was held  on
the  6th July, 1935, and confirmed on the 6th March,  19-13,
was a good sale;
    (2) that by this sale. the title to the Tedlain  village
passed  to the decree-hoMer. and in hearing the  appeal  the
High  Court was justified in proceeding on the footing  that
the  judgment-debtors  having  ceased to be  the  owners  of
Tedlam village after its sale, were not
104
814
hit by clause (D) of the proviso to section a of the Act;
and
(3)  that the decree had been satisfied at the date  of  the
sale and the decree-holder was liable to repay to the  judg-
ment-debtors the full price of the property which was  sold.
    The  main contentions directed against  the  conclusions
arrived  at  by the High Court are :firstly, that  they  are
self-contradictory,  because  if the sale was  an  effective
sale  on the date it was held or confirmed, the  decree  was
also satisfied on that date and the judgmentdebtors were  no
longer entitled to invoke the provisions of the Madras  Act;
and  secondly, that the view taken by the learned Judges  of
the  High Court that notwithstanding the appeal against  the
order  refusing to set aside the sale they could proceed  on
the  footing that the judgment-debtors had ceased to be  the
owners  of Tedlarn village on the date of the sale  was  un-
sound in law.
It will first deal with the second point which appears to me
to require serious consideration.  The High Court has in  my
opinion rightly proceeded on the footing that the  ownership
of  Tedlam village would bring the judgment-debtors   within
the  mischief of clause (D) of the proviso to section  3  of
the Act, and would disentitle them to any relief thereunder.
This view was contested before us on behalf of the judgment-
debtors  on two grounds :---(1) that the grant in favour  of
the  ancestor  of the judgment-debtors did  not  comprise  a
whole inam village and what they owned was therefore not  an
estate  under the Madras Estates Land Act (Madras Act  I  of
1908);  (2) that on the date of the  application, the  judg-
ment-debtxrs were not landholders of village Tedlam  because
the  village was in the possession of a receiver  since  1st
February, 1937, and the latter was in law the landholder  on
the crucial date. None of these contentions however  appears
to me to have any force.  The first contention was sought to
be supported by Exhibit P-1 which is a register of inams and
which  shows that poramboke or waste lands to the extent  of
596 acres had to be deducted from the area
815
of  the  inam.  The point however has been dealt  with  very
fully and clearly by the learned Subordinate Judge, who  has
rightly  pointed  out that it has no force in  view  of  the
Madras Estates Land (Amendment) Act, 1945 [Madras Act No. II
of  1945].  The second point is equally  unsubstantial,  be-
cause  it is well settled that the owner of a property  does
not cease to be its owner merely because it is placed in the
hands of a receiver. The true position is that the  receiver
represents  the real owner whoever he may be, and  the  true
owner  does not by the mere appointment of a receiver  cease
to be a landholder under the Madras Estates Land Act.
    I  will now revert to the crucial question in the  case,
viz.,  whether  the learned Judges of the  High  Court  were
justified in law in deciding the appeal on the footing  that
the judgment-debtors had ceased to be the owners of  Tedlain
village and on that account they were not hit by clause (D).
of  the  proviso to section 3 of the Madras  Act.   At  this
stage,  it will be useful to refer to certain provisions  of
the Civil Procedure Code which directly bear on the question
as  to  when title to immovable property which  is  sold  in
execution  of a decree is deemed to pass to  the  purchaser.
One of the provisions is Order XXI, rule 92, which  provides
that "where no application is made under rule 89, rule 90 or
rule  91, or where such application is made and  disallowed,
the  Court  shall  make an order confirming  the  sale,  and
thereupon the sale shall become absolute." The second  rele-
vant provision is section 65 which runs thus :--
    "Where  immovable  property is sold in  execution  of  a
decree and such sale has become absolute, the property shall
be deemed to have vested in the purchaser from the time when
the  property  is sold and not from the time when  the  sale
becomes absolute."
    In  Bhawani Kunwar v. Mathurn Prasad Singh(1) the  ques-
tion  as to when a mortgagee who has purchased certain  vil-
lages  in  execution  of the decree acquired  title  to  the
properties  purchased by him directly arose  for  considera-
tion, and the Privy Council rightly pointed
(1) T.L.R. 40 Cal. 89.
816
out that "the sale in execution of the mortgage decree  took
effect  from  the actual date of the sale and not  from  its
confirmation."  In a simple case, the provisions cited above
should settle the controversy, but, in the present case, the
matter has been complicated on account of the appeal against
the  order refusing to set aside the sale under  Order  XXI,
rule  90.   In  such a case, generally  speaking,  the  true
position  seems  to be that there is no finality  until  the
litigation  is  finally determined by the  appellate  Court.
This principle has been recognized in a number of cases, but
it  will  be  enough to cite Chandramani  Shaha  v.  Anarjan
Bibi(1).  The headnote of that case runs as follows :--
     "Where  a Subordinate Judge has disallowed an  applica-
tion under Order XXI, rule 90, to set aside a sale in execu-
tion,  and has made an order under rule (1)  confirming  the
sale, and an appeal from disallowance has been dismissed  by
the  High  Court, the three years' period  provided  by  the
Indian Limitation Act, 1908, Schedule I, article 180, for an
application  under Order XXI, rule 95. by the purchaser  for
delivery  of possession runs from the date of the  order  on
appeal; the High Court having under the Code of Civil Proce-
dure,  1908, the same powers as the Subordinate  Judge,  the
'time  when the sale becomes absolute', for the  purpose  of
article 180 is when the High Court disposes of the appeal."
     Under  article  180 of the Indian Limitation  Act,  the
period  of  limitation  runs "from the date  when  the  sale
becomes  absolute." If we give a narrow and literal  meaning
to  these words, the period of limitation should be held  to
run  from  the  date when the original  Court  of  execution
confirms  the  sale.  But, as was pointed out by  the  Privy
Council,  the High Court as an appellate Court had the  same
powers as the trial Court and it is only when the appeal was
dismissed  by  the High Court that the order  of  the  trial
Court  confirming the sale became absolute.  Till the  deci-
sion of the appellate Court, no finality was attached to the
order confirming the sale.
(1) I.L.R. 61 Cal. g45.
817
    It is clear that in this case the same rule would  apply
to the order recording satisfaction of the decree and to the
order confirming the sale.  If the order recording satisfac-
tion  of the decree was not final and remained  an  inchoate
order  until  the appeal was decided, the  order  confirming
the  sale  would  have the same  inchoate  character.   This
position seems to have been fully conceded in the  statement
of  their  case filed on behalf of the respondents  in  this
Court.
    It  is quite clear that in this case the learned  Judges
of  the High  Court have taken up an inconsistent  position.
As I have already stated, they have held, for the purpose of
allowing one of the appeals, that the judgment-debtors  were
not hit by clause (D)of the proviso to section 3 of the  Act
because  they ceased to be the owners of Tedlain village  at
the  date of the sale in 1935.  If this conclusion  is  cor-
rect,  it must follow as a matter of logic that  the  decree
was  completely satisfied on the date of the  sale,  because
the sale fetched a larger amount than what was payable under
the  decree and the excess amount was deposited by  the  de-
cree-holder  in  Court.  The sale and satisfaction  must  go
together  and if finality is to be attached to the  sale  it
should have been held to attach also to the order  recording
satisfaction of the decree. It seems clear to me that if the
decree  had ceased to exist, no relief could be  claimed  by
the  judgment-debtors  under the Madras Act.  On  the  other
hand,  if the appeal had to be decided on the  footing  that
the  order  recording  satisfaction of the  decree  was  not
final, the same approach should have been made in regard  to
the effect of the sale.  It is also clear that if the decree
was satisfied on the date of sale by the application of  the
provisions of the Act, the sale could not stand, because how
could  the property be sold in execution of a  decree  which
had  been already satisfied. Yet, notwithstanding  the  fact
that  nothing was due under the decree, the High  Court  has
held  that the sale was a good sale and was to  stand.   The
correct  approach to the case would have been to assume  for
the purpose of the appeals that neither of the orders passed
by the
818
  Subordinate Judge was  final.  On that view, the   appeals
to  the  High- Court could not have been  decided    on  the
footing  that  the  judgment-debtors had ceased  to  be  the
owners  of Tedlain property and were therefore  not  hit  by
clause  (D) of the proviso to section 3 of the  Madras  Act.
In  my  opinion, the judgment of the  High Court  cannot  be
sustained, and the appeal s will   have to be allowed.
I will now deal very briefly with two preliminary   objec-
tions raised on behalf of the respondents. The  first objec-
tion  is  that the application for leave to  appeal  to  his
Majesty in Council against the order of  the High Court  was
barred by limitation, inasmuch as  the reasons stated in the
affidavit  filed by the appellant in the High Court in  sup-
port  of his application  for excusing delay do not  consti-
tute  sufficient reason  within the meaning of section 5  of
the  Limitation Act.  The answer to this objection  will  be
found  in the facts  which have been already narrated.   The
delay  was   caused mainly by reason of the  review  of  the
order of  the High Court and the High Court considered  that
there  as sufficient reason for condoning the  delay.   This
Court cannot override the discretion exercised by  the  High
Court  and the matter cannot be reopened in  these  appeals.
The second objection is based on the  fact that the  decree-
holder was given a choice by the  High Court to elect wheth-
er he would deposit the  purchase money or have the sale set
aside, and his  counsel told the learned Judges on the  15th
November, 1946 that his client wished to retain the property
which he had purchased and pay the purchase money  in  cash.
It  is contended that in view of this statement it  was  not
open  to the appellant to contend that he need not  pay  any
amount  to  the judgment-debtors.  This  objection  also  is
entirely devoid of any substance,because there is nothing on
record to show that the appellant has consented to be  bound
by  the  order  of the High Court and waived  his  right  to
appeal against it by reason of the election.
The learned counsel for the respondents also contended  that
the sale should have been set aside by the
819
High Court because the permission given to the  decreeholder
on the 16th February, 1934, to bid and set off the  decretal
amount against the purchase price was confined to an earlier
sale and did not extend to the sate which took place on  the
16th  March,  1935,  after the upset price  which  had  been
originally fixed  was reduced.  Personally, I am inclined to
hold  that the permission covered the sale in question,  but
in any case it is difficult to hold on the facts stated that
there  was any such material irregularity as  would  vitiate
the  sale.  The precise argument which is put  forward  here
was advanced in the Courts below but it did not find  favour
either  with the Subordinate Judge or with the  High  Court.
Besides,  the  respondents cannot raise the point  in  these
appeals because they have filed no appeal against the  order
of the High Court upholding the sale.
    In  these circumstances, I would allow the appeals,  set
aside the orders of the High Court and restore the order  of
the  learned  Subordinate Judge.  There will however  be  no
order as to costs in these appeals.
    MUKHERJEA  J.--I concur in the judgment just now  deliv-
ered  by  ray  learned brother, Fazl Ali J.,  and  there  is
nothing further which I can usefully add.
     CHANDRASEKHARA AIYAR J.--The facts which have cha given
rise   to these appeals and the questions for decision  have
been  stated  in  the judgment just  now  pronounced  by  my
learned  brother Fazl Ali J. I wish to add only a few  words
on  the  main contention advanced for  the   respondents  by
their  learned Advocate, Mr. V. Rangachari.
    If  by reason of the confirmation of sale and  satisfac-
tion of the decree having been entered up, the title to  the
village  had passed indefeasibly to the decreeholder,  there
was  no longer any decree or decree debt to be scaled  down.
If,  however, the title did not pass, because it  was  still
open to the respondents to attack the Court sale under Order
XXI,  rule 90, they were landholders of the village and,  as
such, they would
820
come  within  the scope of proviso (D) to section 3  of  the
Madras Agriculturists' Relief Act, 1938, which enacts that a
landholder  who holds a village paying more than Rs. 100  as
quit rent or jodi is not an agriculturist within the meaning
of the Act.
    The apparent inconsistency in the view taken by the High
Court was recognised, if not conceded, by the learned  coun-
sel. In one view, there ,,as no longer any decree in respect
of  which the Agriculturists' Relief Act could operate;  and
in the other view, the respondents could not take  advantage
of  the  Act, as their ownership of  the  village  precluded
them. Faced with this dilemma, Mr. Rangachari urged a  some-
what ingenious argument. He contended that though the. title
passed to the decree-holder on the confirmation of sale  and
became  vested in him from the date of the sale, the  respo-
dents  could still be regarded as having an interest in  the
village, as the sale was open or liable to challenge and the
title'of the decree-holder was inchoate or incomplete. There
is, however, really no support for this position. On confir-
mation,  the title of the decree-holder became  absolute  or
complete.  If the sale was set aside, the title would revest
in  the judgment-debtor. There is nothing like an  equitable
title  in  the decree-holder which could be  recognised  for
certain purposes and not recognised for others.
    Under  the Madras Act, "agriculturist" means  "a  person
who has a saleable interest in any agricultural or horticul-
tural  land or one who holds interest in such land  under  a
landholder as a tenant, ryot or undertenure-holder." Section
10,  sub-clause  (i)  of the Act -provides  that  the  right
conferred  on  an agriculturist to have a debt  scaled  down
will not apply to any person who, though an  "agriculturist"
as defined in the Act, did not on 1-10-1937 hold an interest
in  or a lease or sub-lease of any land.  After the sale  in
1935,  the only interest which the judgment-debtors  had  in
the village was to have the sale set aside, under the  rele-
vant  provisions of the Civil Procedure Code. This  interest
is  not the interest contemplated by section  3,  sub-clause
(ii) (a) & (b) of the Act which speaks of a
821
saleable interest or interest as a tenant, ryot or underten-
ure holder.
     I agree in the conclusion reached by my learned  broth-
er.
                     Appeals allowed.
Agent for the appellant: M.S. Krishnamoorthi Sastri.
      Agent for the respondents: M.S.K. Aiyangar.
PETITIONER:
PROVINCE OF BOMBAY
        Vs.
RESPONDENT:
KUSALDAS S. ADVANI AND OTHERS
DATE OF JUDGMENT:
15/09/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
CITATION:
 1950 AIR  222            1950 SCR  621
 CITATOR INFO :
 E&F        1959 SC 107  (10,10A,11,43,44,45,46,49,54,*
 F          1959 SC 308  (19,44,46,58)
F          1960 SC 415  (18)
 APL        1960 SC 606  (6)
 R          1961 SC1506  (18)
 R          1961 SC1669  (3,4,11)
 F          1962 SC1110  (7)
 R          1962 SC1621  (36,60)
 R          1963 SC 677  (11)
 RF         1963 SC 874  (5)
 D          1964 SC1230  (16)
 R          1965 SC1595  (10)
 R          1965 SC1798  (6)
 R          1966 SC  81  (5)
 F          1966 SC  91  (11)
 R          1967 SC 908  (8)
 MV         1967 SC 997  (47)
 R          1967 SC1507  (6)
 RF         1969 SC 707  (50)
APL        1970 SC1896  (18)
 D          1972 SC2656  (11)
 R          1973 SC 834  (20)
 E          1973 SC2237  (3)
 RF         1975 SC 596  (3,6,8)
 F          1976 SC 667  (4)
 RF         1976 SC1207  (527)
ACT:
    Bombay Land Requisition Ordinance (V of 1947), ss. 3, 4,
10,12--Order  requisitioning land--Application for  writ  of
certiorariOrder  of requisition, whether judicial or  quasi-
judicial  act,  or administrative  act--Construction  of  s.
3--Existence of public purpose, whether condition  precedent
to  exercise  of power to requisition  --Whether  collateral
fact  or composite part of power to  requisition-Distinction
between judicial or quasi-judicial acts, and  administrative
acts--Guiding   principles   and  tests--Writ   of   certio-
rari--Nature and incidents of the writ--Power  of High Court
to  issue writ against Provincial Government--Government  of
India Act, 1935, ss. 176, 306--" Sue, "meaning of.
HEADNOTE:
   Held by the Full Court, (KANIA C.J., FAZL ALl, PATANJALI
SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and BAs JJ.).--A  writ
of  certiorari lies whenever a body of persons having  legal
authority  to  determine questions affecting the  rights  of
subjects and having the duty to act judicially act in excess
of  their  legal  authority; it does not lie  to  remove  or
adjudicate  upon an order which is of an  administrative  or
ministerial nature.
   Section 3 of  the Bombay  Land  Requisition  Ordinance (V
of  1947) provided as follows :--" If in the opinion of  the
Provincial Government it is necessary or expedient to do  so
the Provincial Government may, by order in writing  requisi-
tion any land for any public purpose: Provided that no  land
used for the purpose of public religious worship or for  any
purpose  which  the  Provincial Government  may  specify  by
notification in the Official Gazette shall be  requisitioned
under  this section."  The let respondent who was a  refugee
from Sind got an assignment of the tenancy rights in a  flat
in Bombay and went into possession of the fist.  A few  days
later the Government of Bombay issued an order  requisition-
ing the flat under s. 3 of the abovesaid Ordinnance,  allot-
ted  the  same to another refugee and issued  orders  to  an
Inspector to take possession of the same.  On an application
under Art. 32 of the Constitution, a writ of certiorari  was
issued  by  the Bombay High Court against  the  Province  of
Bombay and others and this order was confirmed on appeal  as
against  the Province of Bombay by a Division Bench  of  the
said High Court.
    Held, per KANIA C.J., FAZL ALI, PATANJALI SASTRI and DAS
JJ. (MAHAJAN and MUKHERJEA JJ. dissenting)--that on a proper
construction  of s. 3 of the Ordinance the decision  of  the
Bombay  Government  that  the property was  required  for  a
public
622
purpose was not a judicial or quasi-judicial decision but an
administrative  act and the High Court of Bombay had  there-
fore  no jurisdiction to issue a writ of certiorari  in  re-
spect of the order of requisition.  Per MAHAJAN and  MUKHER-
JEA  JJ. (contra).-- The Government of Bombay is a  body  of
persons  having legal authority to determine  questions  af-
fecting  the  rights of subjects and in deciding  whether  a
land  was  required for a public purpose under s. 3  of  the
Ordinance  it had to act judicially.  The conditions  neces-
sary  for the granting of a writ of certiorari were  accord-
ingly  satisfied and the High Court of Bombay had  power  to
issue the writ.
KANIA C.J.-- Though a writ of certiorari may be issued where
a body of persons having legal authority to determine  ques-
tions affecting the rights of subjects and having a duty  to
act  judicially act in excess of their legal authority,  yet
merely  because  an  executive authority  has  to  determine
certain objective facts affecting the rights of subjects  as
a preliminary step to the discharge of an executive function
it does not follow that it must determine those facts  judi-
cially.   On the contrary, when the executive authority  has
to  form an opinion about an objective matter as a  prelimi-
nary  step to the exercise of a certain power  conferred  on
it, the determination of the objective fact and the exercise
of the power based thereon are alike matters of an  adminis-
trative character and are not amenable to the writ of certi-
orari.
It  cannot  be laid down broadly that in order  that  a
determination may be a judicial or quasi-judicial one  there
must  be a proposition and an opposition, or that a  lis  is
necessary,  or  that it is necessary that  there  should  be
right  to  examine, cross examine and  reexamine  witnesses.
The true test is whether the law, under which the  authority
is  making a decision, itself requires a judicial  approach.