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1981 Supreme(Ori) 140
High Court Of Orissa
R. N. Misra, C. J.
BHUBAN MAHANANDIA - Appellant
Versus
PARAMESWAR SA - Respondent
Civil Revn. 276 Of 1979
Decided On : 12/08/1981
H.B.SVAIN, H.Patel, S.S.SWAIN
A statute is not retrospective unless it is expressly or by necessary intendment retrospective.
Headnote:
ORISSA LAND REFORMS ACT - SECTION 23(4) - RETROSPECTIVE APPLICATION - DECREE FOR REFUND OF CONSIDERATION MONEY - NOT MAINTAINABLE IF TRANSFER DECLARED INVALID AND TRANSFEREE EVICTED PRIOR TO AMENDMENT - SECTION 23(4) NOT RETROSPECTIVE.
Fact of the Case:
A suit was filed to recover consideration money, registration expenses, and costs of improvement to lands sold by the defendants to the plaintiff. The defendants claimed that the suit was not maintainable as the alienation was contrary to law and against public policy. The court decreed the suit in full. The defendants did not challenge the decree by preferring an appeal. The plaintiff instituted an execution case to recover the decretal dues. The defendants filed an objection under Section 47 of the Code of Civil Procedure, contending that the decree was a nullity and the amount was not recoverable in view of the provision in Section 23(4) of the Orissa Land Reforms Act, which came into force after the decree was passed.
Finding of the Court:
The court held that the new provision in Section 23(4) of the Orissa Land Reforms Act, which barred the refund of consideration money in cases where the transfer was declared invalid and the transferee evicted, could not be applied retrospectively. The court found that the transaction in question took place in 1968, the declaration of invalidity was made in 1972, and the eviction occurred in 1973, all before the amendment came into force in 1976. The court also noted that the plaintiff had filed the suit before the amendment came into force and that the defendants had not challenged the decree by preferring an appeal.
Issues: Whether Section 23(4) of the Orissa Land Reforms Act, which barred the refund of consideration money in cases where the transfer was declared invalid and the transferee evicted, could be applied retrospectively to a decree passed before the amendment came into force.
Ratio Decidendi: The court held that a statute is not retrospective unless it is expressly or by necessary intendment retrospective. The court found that there was nothing in the provision to suggest that it would apply to declarations or evictions before it came into force. The court also noted that the legislature must have been aware of the fact that claims for refund of consideration might be pending when the amendment was introduced, but no provision was made in regard to pending actions. The court concluded that it would be wholly inequitable to hold that pending actions were affected by the new provision.
Final Decision: The court dismissed the revision petition and directed parties to bear their own costs.
R. N. MISRA, C. J.
( 1 ) TWO of the judgment-debtors are petitioners in this application under Section 115 of the Civil P. C. which is directed against rejection of an objection under Section 47 of the Code in an execution case instituted to execute the decree obtained in Money Suit No. 68 of 1974 from the Subordinate Judge of Sundergarh.
( 2 ) THE said suit was filed by the opposite party to recover the consideration money, registration expenses and costs of improvement to the lands totalling Rupees 5,600/ -. On 18-10-1968, the four defendants of the suit had sold 1. 30 acres of land for a consideration of Rs. 5,000/-by a registered sale deed. In Miscellaneous Case No. 81 of 1972 before the Sub-Divisional Officer, Sundergarh, under the Orissa Land Reforms Act, the transfer was declared as void as it was in contravention of Section 22 of that Act and restoration of possession was ordered by the Sub-Divisional Officer. On 11-11-1973, the defendants forcibly took away possession of the property along with the standing crop. That led to the suit. The defendants entered contest and claimed that the suit was not maintainable in view of the fact that the alienation was contrary to law and against public policy. The learned Subordinate Judge, however, decreed the suit in full by judgment dated 19-11-1977. A decree followed. The plaintiff instituted execution case No. 8 of 1978 to recover the decretal dues. Therein, an application was filed under Section 47 of the Code to the effect that the decree was a nullity and the amount was not recoverable in view of the provision in Section 23 (4) of the Orissa Land Reforms Act which came into the statute book by Amending Act 44 of 1976 with effect from 25th Oct. 1976. That objection has been overruled by the executing court. That is why two of the judgment-debtors have carried this revision application. The other two judgment-debtors have not been impleaded in the proceeding.
( 3 ) IT must first be pointed out that the impugned order of the executing court has become final against defendants 2 and 3 who were also judgment-debtors in the execution proceeding in the absence of any challenge by them. They have also not been impleaded as opposite parties in this application. Reversal of the decision of the executing court would bring about contradictory orders.
( 4 ) APART from this technical aspect, I am inclined to agree with the decree-holder's counsel that in the absence of retrospective application of the amending provision, a decree already obtained could not be wiped out. The new provision runs thus:-
"23 (4 ). Where any transfer is declared under this section to be invalid and the transferee or any other person in possession of the property has been evicted therefrom, the transferee shall not be entitled to the refund of any amount paid by him to the transferor by way of consideration for the transfer. " As already indicated, this must be taken to have come into force from 25th Oct. , 1976, when after receiving assent of the President, the provision was first published in the Orissa Gazette. The transaction was of 1968. It was annulled in a proceeding of 1972 and possession was taken over in Nov. 1973, but the suit was decreed on 19-11-1977. By that time the amended provision was in the statute book. The defendants did not challenge the decree by preferring an appeal oh the ground that under Section 23 (4) of the Orissa Land Reforms Act, a decree for refund was not maintainable and they allowed the decree to become final. The key words in the new provision are "where any transfer is declared under this section to be invalid. . . . . or any other person in possession of the property has been evicted therefrom. . . . . "
This declaration was prior to the amendment and eviction was also prior to the incorporation of the provision into the statute. Plaintiff had already filed the suit before the provision came into the statute book. There is nothing in the provision to say that it would ap
