JUDGMENT

Madeley, J - This is an application under Section 25, Small Cause Courts Act, from an order of the Civil Judge (sitting as Judge of the Small Cause Court), Gonda. The facts of the case are that Debi Dayal brought a suit against Mohammad Mirza and Kaisar Mirza on the basis of a pronote executed in lieu of the price of cloth. This suit was decreed on 10th August 1983. The first application for execution was made on nth February 1985. That was consigned to records and a second application was made on 4th March 1936. This is Ex. 1. The application was for execution by arrest of the person of the judgment-debtor. It was consigned to records on 9th April 1986. Then a third application was made on 2nd June 1939, by Ajodhiya Prasad, son of Debi Dayal, who had died in the meantime. This was stayed owing to the Temporary Postponement of Execution of Decrees Act (10 of 1937). On 16th January 1941 after this Act ceased to be in force the decree holder filed "talbana" for the revival of his last application. On 28th January 1941, a declaration was filed by the decree-holder in this execution application under Section 4(3), U.P. Debt Redemption Act, stating that he is not going to proceed against the person or agricultural produce or land of Kaisar Mirza judgment-debtor 2 against whom alone he was executing the decree. On the same date, Kaisar Mirza made an application that he wanted reduction of interest under Section 8, U.P. Debt Redemption Act. A reply to this was filed on 1st March 1941, by the decree holder. The statements of counsel were recorded, and the Court gave its order in favour of the decree-holder on 31st March 1941. It is against this order that the present application in revision has been filed. The applicant's learned Counsel argues that the lower Court wrongly held that the last proviso to Sub-section (8) had no retrospective effect. This proviso reads as follows:

Provided also that no declaration shall be made under Sub-section (3) where the creditor has already applied for execution against the land, agricultural produce or person of such agriculturist.

2. In my opinion, the contention of the applicant's learned Counsel is perfectly correct. This proviso came into force at the same time as the Act, in which it is contained, came into force. The use of the past tense, therefore, necessarily implies that it applies to applications for arrest, etc., made before the Act came into force as well as after. The argument that it is only a bar to a declaration, that there must be an interval between the coming into force of the Act and the making of the declaration, and during this interval there might be an application for arrest, etc., cannot be good, because the proviso says that no declaration shall be made where there has been a previous application for arrest, etc. The opposite party's learned Counsel has argued on general principles that no part of an Act should be given retrospective effect unless it is very clearly so stated. He cites Jagdamba Prasad Lalla v. Anandi Nath Roy, AIR1938Pat337 the special passage being at p. 350. At the end of the passage read by him, however, I find:

(3) If it is a necessary implication from the language employed that the Legislature intended a particular section to have a retrospective operation, the Courts will give it suoh operation because it is obviously competent for the Legislature, if it pleases in its wisdom, to make the provisions of an Act retrospective.

3. In my opinion, it is a necessary implication from the language employed in this proviso that it applies to applications made before as well as after the Act came into force, because otherwise the use of the past tense would be meaningless at the time when the proviso first came into force. Had the Legislature intended otherwise, it could have clearly indicated its intention by stating "provided also that no declaration shall be made under (Sub-section (3) if the creditor has after the coming into force of this Act app