The interpretation of the term 'civil Court' in Section 10C of the Bengal Court of Wards Act and its application to the High Court in the context of execution proceedings.

JUDGMENT

Derbyshire, C.J. - The plaintiff decree-holder has asked for execution of the remainder of his decretal amount, a sum of Rs. 1,60,050, by attachment and sale of certain properties belonging to the defendant which are now in possession of the Cossimbazar Raj Wards Estate. The contention of the judgment-debtor is that these properties are protected from execution under the decree by reason of the provisions of Section 10C, Bengal Court of Wards Act of 1879. Section 10C of the Act was introduced into it by Section 5 of Act 6 of 1936 passed by the Bengal Provincial Legislature. That section reads as follows:

(1) Where any property is in charge of the Court of Wards no civil Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935, or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.

In calculating the period of limitation applicable to an application for the execution of a decree or order, the time during which the execution of such decree or order is barred under this sub-section shall be excluded.

(2) Except as provided in Section 23A, no property in charge of the Court of Wards shall be sold by any revenue authority under any law so long as the Court remains in charge thereof.

2. The decree in question is a decree made by the Calcutta High Court in the exercise of its ordinary original civil jurisdiction. The execution proceedings are also brought under the ordinary original civil jurisdiction of the Court. The judgment-debtor contends that the Calcutta High Court is, as regards its original civil jurisdiction, a civil Court within the meaning of Section 10C The original Bengal Court of Wards Act was passed by the Bengal Local Legislature in 1879 and the amendment which added Section 10C was passed by the Bengal Local Legislature in 1935, the Act itself being published in the Calcutta Gazette of 5th March 1986. The two Acts were passed by the Local Legislature before the Government of India Act, 1935, came into operation. Mr. Banerji for the judgment-debtor has contended that the words "civil Court" in the section include the High Court and he has taken us through the relevant parts of the Act. I am unable to agree to that contention. When the Legislature wishes to refer to the High Court, it does so in clear and explicit terms. If Mr. Banerji's contentions were correct, then both the Acts would purport to cut down the powers of this Court in its original jurisdiction to execute its decrees. We had before us in 1939 the case in Narsing Das Tansukdas Vs. Chogemull and Another, AIR 1939 Cal 435 . That concerned the meaning of the words "civil Court" (with initial capital letters) as in this case, as used in the Bengal Agricultural Debtors Act of 1935. Both the Bengal Agricultural Debtors Act of 1985 and the Bengal Court of Wards Act of 1935 were passed by the same legislative authority, the Bengal Provincial Government. Both received the assent of the Governor. General. I quote from my own opinion in that case (at p. 110) in which the majority of the Court (Bartley and Nasim Ali JJ.) concurred:

In Balfour v. Malcolm (1842) 8 Cl & Fin 485 at p. 500, Lord Campbell said : "There can be no doubt that the principle is, that the jurisdiction of the Supreme Courts can only be taken away by positive and clear enactments in an Act of Parliament." Substitute for the word "Parliament" the words "the appropriate and competent Legislature" and the observation applies in the present case.

3. At page 112:

If the words "civil Court" include the High Court then the Bengal Agricultural Debtors Act passed by the Local Legislature in 1935, and assented to by the Governor General on 29th March 1936, clearly cuts down the powers of the High C