dedol-hf/india-case-legal-rag huggingface dataset:
applies".  Suit No. 78 of 1922 was neither instituted on  or
after January 1, 1939, nor was it pending on that date,  all
the three decrees having been passed long before that  date.
Nor was any proceeding in execution such as is  contemplated
by  section  2 (22) instituted or pending on or  after  that
date.  The  Execution Case No. 118 of 1936 was at an end  on
January 30, 1937, and the petition of June 2, 1939, was  not
an application at all and was certainly not a proceeding  in
execution  within the meaning of section 2 (22) of the  Act.
This conclusion is sufficient to dismiss this appeal and  it
is  not  necessary  for us to consider  the  other  question
raised  by the respondent on the strength of section 36  (5)
of the Act and I express no opinion on that question.
     The  result  is that this appeal must  stand  dismissed
with costs and I order accordingly.
KANIA C.J.--I agree.
PATANJALI  SASTRI J.--The facts bearing on the  dispute
in  this  appeal  are fully stated in the  judgment  of  ray
brother Das which I have had the advantage of reading and it
is unnecessary to recapitulate them here.
589
    The  appellant mortgagor seeks in these proceedings  the
reliefs  provided  by  the Bengal  Money-lenders  Act,  1940
(hereinafter referred to as the Act) in respect of a  decree
debt  payable  by him.  The respondent  who  represents  the
sub-mortgagee  decree-holder invokes the protection  of  two
exemptions contained in the Act: (1) Section 86 (1), proviso
(ii),  which  exempts inter alia "any decree  other  than  a
decree  in  a suit to which this Act applies which  was  not
fully  satisfied by the first day of January,  1939".   This
raises  a dispute as to whether the respondent's decree  was
passed  in a suit to which the Act applies.  (2) Section  36
(5) which exempts "the rights of any assignee or holder  for
value  if the Court is satisfied that the assignment to  him
was  bona fide and that he had not received the  notice  re-
ferred  to in clause (a) of sub-section (1) of section  28".
This  raises  the  question whether a  sub-mortgagee  is  an
assignee within the meaning of the Act.
    On the first question "a suit to which this Act applies"
is  defined in section 2 (22) as meaning "any suit  or  pro-
ceeding instituted or filed on or after the 1st day of Janu-
ary, 1939, or pending on that date and includes a proceeding
in execution for (among other things) the recovery of a loan
advanced before or after the commencement of this Act." This
definition  has been construed as requiring that  the  "pro-
ceeding in execution "referred to therein should be  pending
on  1st January, 1939, and the question  accordingly  arises
whether the order of the executing court dated 30th January,
1937, which purported to dismiss the respondent's  execution
case  for  non-prosecution while continuing  the  attachment
already  effected,  terminated the proceeding  in  execution
which  had resulted in the attachment. It was said that  the
order was made in accordance with Order XXI, rule 57, of the
Civil  Procedure Code as amended by the Calcutta High  Court
and  must, therefore, be taken to have been intended to  put
an  end  to the execution proceeding altogether.  I  am  not
satisfied  that such was the result of the  dismissal.   The
amendment which added the words "unless the court shall make
an order to the contrary"
200
at the end of the rule envisages a dismissal of an "applica-
tion  for  execution" while at the same  time  continuing  a
subsisting attachment. The dismissal of 30th January,  1987,
must, therefore, be taken to be a dismissal of the execution
application  then  before the court and cannot be  taken  to
have  any wider operation. On the other hand,  the  continu-
ance, in express terms, of 'the  attachment  notwithstanding
the  dismissal, indicates  that  the    proceeding     which
had  resulted   in the attachment  was  kept  alive   to  be
carried  forward later on by sale of the attached  property.
Attachment  itself  is  a  "proceeding in execution" and, so
long.as it subsists, the proceeding in execution can well be
regarded  as pending. In In re Clagett's Estate; Fordham  v.
Clagett (1)  Jessel M.R. declared that "a pending matter  in
any court of justice means one in which some proceeding  may
still be taken".  The attachment was cancelled by the  court
only  on  2nd June, 1939, when the decree  in  question  was
recorded as adjusted and then, and not before, could  execu-
tion of the decree be properly considered to have  terminat-
ed.   In this view, a "proceeding in execution" was  pending
on the 1st day of January, 1939, and the respondent's decree
must  be taken to have been passed "in a suit to which  this
Act applies' ', with the result that the respondent's  claim
to  exemption under proviso (ii) to sub-section (1) of  sec-
tion 36 of the Act must fail.
    I am, however, of opinion that the respondent's claim to
recover  his decree debt is protected under section 36  (5).
There  is no question here but that the submortgage  to  the
respondent's predecessor in title was bona fide.  Nor  could
he  have received the notice referred to in clause  (a)  of'
sub-section (1) of section 28 as the transaction took  place
long  before  the Act was passed.  It is not  disputed  that
section 36 (5) applies to pre-Act debts. [See Renula Bose v.
Manmatha  Nath Bose(2)].  The only question,  therefore,  is
whether  the  respondent  as sub-mortgagee  is  an  assignee
within  the  meaning of sub-section (5) of section  36.  The
learned
(1) 20 Ch. D. 687.        (2) L.R. 72 I.A. 156,
591
Judges in the court below held that he was not, following an
earlier decision of their own court in Promode Kumar Roy  v.
Nikhil  Bhusan Mukhopadhya(1). That decision,  however,  was
reversed by the Privy Council in Promode Kumar Roy v. Nikhil
Bhusan  Mukhopadhya(2) where their Lordships dealt with  the
question now before us in the following terms :-
    "It  was suggested, in the judgment of Mitter  J.  (with
which  Waight  J. agreed), and in the argument for  the  re-
spondents that if a sub-mortgagee were an `assignee'  within
section 36, sub-section (5), of the Act., certain  difficul-
ties  and  anomalies would result.  Their  Lordships  cannot
agree  with this suggestion. They express no view as to  the
position  which arises if the sub-mortgage contains  only  a
charge  on the original mortgage debt, but when it  contains
an  assignment  of that debt, and of all the rights  of  the
mortgagee, the position appears to be free from  difficulty.
Relief can be given to the original mortgagor as against the
original  mortgagee under section 36, but such  relief  must
not  affect the rights of the assignee by way  of  sub-mort-
gage. To take an imaginary case by way of illustration,  let
it be assumed that the amount due on the original  mortgage,
for  principal  and interest at the original  rate,  is  Rs.
1,000,  and the sum due on the sub-mortgage  by  assignment,
for principal and interest at the original rate, is Rs. 500.
Let it further be assumed that if relief could be given, and
were  given, under section 36 as against both mortgagee  and
sub-mortgagee,  the sums due to them respectively  would  be
Rs. 800 and Rs. 400. By reason of sub-section (5), the  sub-
mortgagee's rights cannot be affected. He can therefore,  as
assignee  of the mortgage debt: claim his full Rs.  500,  as
against  both mortgagor and original mortgagee.  But if  the
court  gives  the mortgagor relief as against  the  original
mortgagee,  the mortgagor will only be liable to pay to  the
original mortgagee Rs. 300, the balance of the reduced  debt
after paying the sub-mortgagee in full.
    As  to contention (b), it is impossible to read  subsec-
tion (5) of section 36 as referring only to an assignee
(1) 50 C.W.N. 407.        (2) L.R. 76 I.A. 74.
592
of a mortgage decree. The words and that he had not received
the  notice  referred to in clause (a)of subsection  (1)  of
section  28  make it plain that an assignee  of  a  mortgage
debt  is within the sub-section, since   section  28,   sub-
section (1) is concerned only with assignment of debts" (pp.
83-84).
     The  sub-mortgage  here in question  also  contains  an
assignment of the debt due under the original mortgage  debt
and  of  "the entire interest" of  the  original  mortgagee.
After  reciting  their  original  mortgage,  the  mortgagees
proceed to state in the deed of sub-mortgage:
     "We  mortgage all that is at present due and that  will
in  future  become due to us, the first, second,  third  and
fourth  parties, on account of the said one lakh  of  rupees
together  with  interest and the entire interest  under  the
mortgage  taken by us on the basis of the said Indenture  in
respect  of five annas share of the said Niskar Mouza  Mono-
harbahal and in respect of sixteen annas of the surface  and
underground rights in the said Mouza Marichkota and we  make
over the said Deed of Indenture to you".
     The decision referred to above is, therefore,  directly
in point and rules the present case.
     It was suggested that the said decision was  inconsist-
ent  with the earlier decisions of the same tribunal in  Ram
Kinkar  Banerjee  v. Satya Charan Srimani(1)  and  Jagadamba
Loan Co. v. Raja Shiba Prasad Singh(2). Stress was laid upon
the  expression  "all the rights of the mortgagee"  used  by
their  Lordships  in the passage quoted above,  and  it  was
pointed out that in the earlier decisions they held that  in
India  a legal interest remained in the mortgagor even  when
the  mortgage  was in the form of an English  mortgage,  and
that the interest taken by the mortgagee was not an absolute
interest.  This proposition, it was said, implied that in  a
sub-mortgage  all the rights of the original  mortgagee  are
not  assigned  to the sub-mortgagee and that  the  mortgagee
still retains a legal
(1) 64 I.A. 50.              (2) 68 I.A. 67.
  593
interest in the original mortgage.  This is a rather  super-
ficial  view  of  the matter.  In the  earlier  cases  their
Lordships  were considering the quantum of  interest  trans-
ferred  by  a  mortgagor to a mortgagee  in  a  mortgage  of
leasehold interest for the purpose  of  determining  whether
or not there was privity  of estate between the landlord and
the  mortgagee. If the mortgage could operate as an  assign-
ment  of the entire interest of the mortgagor in the  lease,
the  mortgagee would be liable by privity of estate for  the
burdens of the lease. If on the other hand, it operated only
as a partial assignment of the mortgagor's interest, no such
result  would follow. It was in determining that issue  that
their  Lordships  held that no privity of  estate  arose  in
India because a legal interest remained in the mortgagor and
the  interest  taken by the mortgagee was  not  an  absolute
interest. These cases had no bearing on the question,  which
arose in Promode Kumar Roy v. Nikhil Bhusan Mukhopadhya  (1)
and arises in the present case, as to whether a  sub-mortga-
gee  becomes  an assignee of the mortgage debt  and  of  the
mortgagee's  right  to recover the debt  from  the  original
mortgagor.   The  Act affords relief to certain  classes  of
debtors by curtailing pro tanto the rights of the creditors,
subject  to certain exceptions in regard to "assignments  of
loans".   In such a context the only relevant  consideration
could  be whether the assignment is such as to  establish  a
debtor  and creditor relation between the assignee  and  the
debtor  so  as to bring the case within the purview  of  the
Act.   If the sub-mortgagee obtained, by virtue of the  sub-
mortgage, the right to sue the original mortgagor for recov-
ery of the mortgage debt, that would seem sufficient to make
him an assignee within the meaning of the Act.  It was  from
this point of view that the question as to the nature of the
right transferred to a sub-mortgagee under his  sub-mortgage
was considered in Promode Kumar Roy v. Nikhil Bhusan  Mukho-
padhya(1)  as it has to be considered in the  present  case,
and the reference to the sub-mortgage containing an  assign-
ment of all the rights
(1) 76 I,A. 74.
594
of  the mortgagee must, in that context, be understood  with
reference to the sufficiency of the right assigned to enable
the  sub-mortgagee to sue the original mortgagor in his  own
right,  so  as to bring the relevant provisions of  the  Act
into  play  as between them. The reservation made  by  their
Lordships  in the case of a sub-mortgage containing  only  a
charge on the original mortgage is significant and  supports
this view.  I do not consider, therefore, that there is  any
inconsistency  between Promode Kumar Roy  v.  Nikhil  Bhusan
Mukhopadhya(1) and the earlier decisions, and even if  there
be any such inconsistency it has no relevance to the present
case.
    In  the result I agree that the appeal fails and  should
be dismissed with costs.
                             Appeal dismissed.
Agent for the appellants: R.R. Biswas.
Agent for the respondent: Sukumar Ghose.
PETITIONER:
RAM SINGH
        Vs.
RESPONDENT:
THE STATE OF DELHI AND ANOTHERBALRAJ KHANNAv.THE STATE OF DE
DATE OF JUDGMENT:
06/04/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
 1951 AIR  270            1951 SCR  451
 CITATOR INFO :
 RF         1954 SC  92  (39)
 R          1958 SC 578  (155)
 E          1958 SC 731  (17)
 R          1960 SC 554  (20)
RF         1961 SC 232  (55)
 R          1962 SC1006  (79)
 R          1963 SC1047  (19)
 RF         1967 SC   1  (42,138)
 RF         1967 SC1643  (274)
 O          1970 SC 564  (53)
 RF         1973 SC1461  (1525)
 E&R        1978 SC 597  (52,41,66,ETC.)
 E          1980 SC 898  (52,49)
ACT:
    Constitution   of  India,  Arts.  19  (1)  &   (2),   22
(5)--Freedom  of  speech--Preventive  detention  to  prevent
speeches with a view to maintain public order-- Omission  to
state  objectionable passages in grounds  supplied--Legality
of detention.
HEADNOTE:
    The District Magistrate of Delhi, "being satisfied  that
with  a view to the maintenance of public order in Delhi  it
is  necessary to do so" ordered the detention of  the  peti-
tioners  under s. 3 of the Preventive Detention  Act,  1950.
The  grounds  of detention communicated to  the  petitioners
were "that your speeches generally in the past and  particu-
larly on the 13th and 15th August, 1950, at public  meetings
in  Delhi  has been such as to excite  disaffection  between
Hindus and Mussalmans and thereby prejudice the  maintenance
01  public order in Delhi and that in order to  prevent  you
from  making such speeches it is necessary to make the  said
order."  The petitioners contended that under the  Constitu-
tion  the maintenance of public order was not a purpose  for
which restriction can be imposed on the freedom of
452
speech guaranteed by Art. 19 (1) and that the grounds commu-
nicated were too vague and indefinite to enable them to make
a  representation and the provisions of Art. 22 (s)  of  the
Constitution were not complied with, and their detention was
therefore ultra vires and illegal:
    Held  by the Full Court (KANIA C.J.,  PATANJALI  SASTRI,
MEHR  CHAND  MAHAJAN,  S.R. DAs and VIVIAN  BOSE  JJ.)  that
though  personal  liberty is sufficiently  comprehensive  to
include  the  freedoms  enumerated in Art. 19  (1)  and  its
deprivation  would result in the extinction of  those  free-
doms, the Constitution has treated these civil liberties  as
distinct fundamental rights and made separate provisions  in
Arts.  19,  21 and 22 as to the limitations  and  conditions
subject to which alone they could be taken away or abridged.
Consequently,  even though a law which restricts freedom  of
speech  and expression which is not directed solely  against
the  undermining of the security of the State or  its  over-
throw but is concerned generally in the interests of  public
order may not fall within the reservation of cl. (2) of Art.
19 and may therefore be void, an order of preventive  deten-
tion cannot be held to be invalid merely because the  deten-
tion is made with a view to prevent the making of  speeches.
prejudicial  to the maintenance of public order.  The  deci-
sions in Brij Bhushan and Another v. The State of Delhi  (1)
and Romesh Thappar v. The State of Madras(2) are not  incon-
sistent with the decision  in  A.K. Gopalan v. The State(3).
Held  per  KANIA. C.J., PATANJALI SASTRI and  S.R.  DAS  JJ.
(MEHR  CHAND MAHAJAN and BOSE JJ. dissenting)--As  the  time
and  place at which the speeches were alleged to  have  been
made and their general nature and effect,. namely, that they
were  such  as  to excite disaffection  between  Hindus  and
Muslims  were also stated in the grounds communicated,  they
were  not too vague or indefinite to enable the  petitioners
to make an effective representation and the detention cannot
be held to be illegal on the ground that Art. 22 (8) was not
complied with.  Per CHAND MAHAJAN and BOSE JJ.  (contra)--In
the  absence  of  any indication in the grounds  as  to  the
nature of the words used by the petitioners in their speech-
es, from which an inference has been drawn against them, the
petitioners would not be able fully to exercise their funda-
mental  right of making a representation, and as there  were
no  such  indications in the grounds supplied, there  was  a
non-compliance  with the provisions of el. (5) Art.  22  and
the detention was illegal.
The State of Bombay v. Alma Ram Sridhar Vaidya(4) applied.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 21, 22 and 44 of 1951.
 (1) [1950] S.C.R. 605.        (3) [1950] S.C.R. 88.
 (2) [1950] S.C.R. 594,        (4) [1950] S.C.R. 167.
453
    Applications under  Art. 32 of the  Constitution praying
for the issue of writs in the nature of habeas corpus.
Hardayal Hardy for the petitioners in Petitions Nos.  21
and 22
Gopal  Singh  for the petitioner in Petition  No.  44.
S.M. Sikri for the respondents.
    1951.   April 6.  The following judgments   were  deliv-
ered.
PATANJALI  SASTRI J.--These three petitions have  been  pre-
sented to this Court under article 32 of the Constitution of
India praying for the issue of writs in the nature of habeas
corpus  for release of the petitioners who are  respectively
the   President,  VicePresident and Secretary of  the  Hindu
Mahasabha of the Delhi State.
The  petitioners were arrested on 22nd August, 1950,  by
order  of  the District Magistrate, Delhi, made  under  sub-
section  (2)  read with clause (a) sub-clause  (i)  of  sub-
section  (1) of section 3 of the Preventive  Detention  Act,
1950 (hereinafter referred to as the Act). The order ran  as
follows:
    "Whereas I, Rameshwar Dayal, District Magistrate, Delhi,
am  satisfied that with a view to the maintenance of  public
order in Delhi it is necessary to do so, I, Rameshwar Dayal,
District  Magistrate,  Delhi,  hereby  order  the  detention
of  ............  under sub-section (2) of section 3 (1) (a)
(ii)  of the Preventive Detention Act.  Given under my  seal
and signature".
    The grounds of detention communicated to the petitioners
were  in identical terms, save as to the dates on which  the
speeches were said to have been made, and read thus:
    "In  pursuance of section 7 of the Preventive  Detention
Act  you are hereby informed that the grounds on  which  the
detention  order  dated  22nd August, 1950,  has  been  made
against you are that your speeches generally in the past and
particularly on  ......  August,
454
1950, at public meetings in Delhi has been such as to excite
disaffection  between Hindus and Muslims and thereby  preju-
dice  the maintenance of public order in Delhi and  that  in
order to prevent you from making such speeches it is  neces-
sary to make the said order".
The  petitioners applied to the High Court at Simla  for
similar  relief under article 226 of the  Constitution,  but
the  petitions were dismissed. It appears to have been  con-
tended  before the learned Judges (Khosla and  Falshaw  JJ.)
who  heard those petitions that although this Court held  in
A.K. Gopalan v. The State of Madras (1) that the  provisions
of  section  3  of the Act were  constitutional  and  valid,
detention  under  that section was ultra vires  and  illegal
where, as here, it was based on the ground of making speech-
es  prejudicial to the security of the State or the  mainte-
nance  of public order.  This was said to be the  result  of
the  later pronouncements of this Court in Brij Bhushan  and
Another v. The State of Delhi (2) and Romesh Thappar v.  The
State  of Madras (3).  This contention was rejected  on  the
ground that no such proviso could be read into section 3  on
the strength of the later decisions referred to above  which
related to a different point, viz., the scope of  authorised
restrictions on the right to freedom of speech conferred  by
article 19 (1). Falshaw J. (with whom Khosla J.  concurred),
proceeded,  however, to draw attention to what he  conceived
to  be an' 'anomaly' '--while a State Government should  not
be allowed to interfere with the freedom of the press by way
of stopping the circulation of newspapers or by  pre-censor-
ship of news, the Government should, for the same object, be
entitled to place a person under preventive detention  which
is  "even greater restriction on personal liberty  than  any
restriction on a newspaper ever could be".  This distinction
appeared  to  the  learned Judge to  be  illogical,  and  he
thought  that there was "an apparent conflict"  between  the
decisions of this Court in Gopalan's case (1) and the  other
cases, which could only be resolved by this Court.  "It
   (1) [1950] S.C.R. 88.      (3) [1950] S.C.R. 594,
   (2) [1950] S.C.R. 605.
455
would  be  well" the learned Judge concluded "if  the  point
were  raised  in this form at an early date in  the  Supreme
Court".
     No  wonder that, after this  encouragement,  the  peti-
tioners  have  preferred these petitions  raising  the  same
contention  before  us.  On behalf of  the  petitioners  Mr.
Hardy submitted that the provisions of the Act should not be
used  to prevent a citizen from making speeches though  they
might be considered to be prejudicial to the maintenance  of
public  order,  for  maintenance of public order  is  not  a
purpose for which imposition of a restriction on freedom  of
speech is authorised by the Constitution, as held by this
 Court in the Cross-roads(1) and the Organizer(2) cases.  It
is true that in those cases this Court decided by a majority
of  5 to 1 that "unless a law restricting freedom of  speech
and expression is directed solely against the undermining of
the  security of the State or the overthrow of it  such  law
cannot fall within the reservation of clause (2) of  article
19  although the restrictions which it seeks to  impose  may
have  been  conceived generally in the interests  of  public
order".   But it will be noticed that the  Statutory  provi-
sions  which were there declared void  and  unconstitutional
authorised the imposition, in the one case, of a ban on  the
circulation of a newspaper and, in the other, of pre-censor-
ship on the publication of a journal.  No question arose  of
depriving  any  person of his personal liberty by  detaining
him in custody,  whereas here, as in Gopalan's case(s),  the
Court  is called upon to adjudge the legality of the  deten-
tion  of  the petitioners with a view to prevent  them  from
making  speeches  prejudicial to the maintenance  of  public
order  Although personal liberty has a content  sufficiently
comprehensive to include the freedoms enumerated in  article
19  (1), and its deprivation would result in the  extinction
of those freedoms, the Constitution has treated these  civil
liberties  as distinct fundamental rights and made  separate
provisions  in article 19 and articles 21 and 22 as  to  the
limitations and conditions subject to which
 (1) [1950] S.C.R. 594.      (3) [1950] S.C.R. 88.
 (2) [1950] S.C.R. 605.
        59
456
alone they could be taken away or abridged.  The interpreta-
tion of these articles and their correlation were elaborate-
ly  dealt with by the full Court in Gopalan's case(1).   The
question arose whether section 3 of the Act was a law impos-
ing restrictions on "the right to move freely throughout the