Citation Codes

Equivalent Citations

citation codes

Case Number

AFAO No. 287 of 1941

Judges

Sen
Pal, JJ.

Acts

sec. 168A of the Bengal Tenancy Act differs from sec. 51 of the Civil Procedure Code. Sec. 168A of the Bengal Tenancy Act
sec. 107(1) of the Government of India Act, 1935.17. Sec. 107(1) of the Government of India Act
provision of the Code of Civil Procedure and sec. 168A of the Bengal Tenancy Act
sec. 168A of the Bengal Tenancy Act and sec. 51 of the Civil Procedure Code,
provision and the provisions contained in sec. 168A, Bengal Tenancy Act.
provisions of this Act, the Code of Civil Procedure, 1908
Provincial List. Sec. 148(O) of the Bengal Tenancy Act
provisions of sec. 168A of the Bengal Tenancy Act
sec. 107 of the Government of India Act, 1935.31.
sec. 107(1) of the Government of India Act, 1935
sec. 107(2) of the Government of India Act.23.
sec. 107 of the Government of India Act, 1935.
Act .19. Sec. 168A of the Bengal Tenancy Act
sec. 107(1) of Government of India Act, 1935,
sec. 107(1) of the Government of India Act
provision is sec. 168A, Bengal Tenancy Act
sec. 107(2) of the Government of India Act
Bengal Tenancy Act by Act XVIII of 1940,
Sec. 107 of the Government of India Act
sec. 205 of the Government of India Act
sec. 168A (1) of the Bengal Tenancy Act
Government of India Act (Vide sec. 311).
provision of the Bengal Tenancy Act
sec. 143(2) of the Bengal Tenancy Act
Bengal Tenancy Act sec. 143(2);or (3)
Bengal Council Act XVIII of 1940.
sec. 168A (1) of Bengal Tenancy Act
Government of India Act, 1935.C.C
GOVERNMENT OF INDIA ACT 1935
sec. 168A, Bengal Tenancy Act.33.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The Appellant obtained a decree for arrears of rent against the Respondents and, in execution of that decree, sought to attach and sell the judgment-debtors' movable and immovable property other than the land in arrears (the land in arrears had already been sold in execution). The judgment-debtors contended that, under section 168A of the Bengal Tenancy Act, no property other than the land in arrears was liable to be sold in execution of a decree for arrears of rent. Both Courts below accepted that contention and dismissed the execution proceedings. The decree-holder (Appellant) appealed.

In this Court the Appellant abandoned most of his earlier contentions and pressed a single point: that section 168A of the Bengal Tenancy Act, to the extent that it limits execution of decrees for rent to the land in arrears, is void as repugnant to section 51 of the Code of Civil Procedure (CPC), and therefore void under section 107 of the Government of India Act, 1935.

Legal Issues Presented

Whether section 168A of the Bengal Tenancy Act, insofar as it restricts execution of a decree for arrears of rent to the land in arrears and prohibits sale of other movable or immovable property, is repugnant to section 51 of the Code of Civil Procedure and therefore void under section 107(1) of the Government of India Act, 1935.
If repugnancy is alleged, whether the conflict arises having regard to (a) the definitions and operation of "Provincial law" and "existing Indian law", and (b) the requirement that both the Provincial law and the existing Indian law be "with respect to" the same matter enumerated in the Concurrent Legislative List.
Whether, more generally, a special procedural provision contained in the Bengal Tenancy Act (Chapters XIII and XIV, including s.168A) occupies a distinct field so as to avoid conflict with general provisions of the Civil Procedure Code (and whether s.4 CPC preserves such special procedure).

Arguments of the Parties

Appellant's Arguments

The Appellant primarily contended that section 168A is repugnant to section 51 CPC, which permits execution against "any property" of the judgment-debtor, and is therefore void to the extent of repugnancy under section 107(1) of the Government of India Act, 1935.
The Appellant relied on the definition and operation of section 107 of the Government of India Act to argue that where a Provincial provision conflicts with an existing Indian law on a matter in the Concurrent List, the Provincial provision must be void unless assented to under s.107(2).
Alternative formulations pressed by the Appellant (as recorded) included that the "existing Indian law" in question might mean: (1) s.51 CPC as it stands; (2) s.51 as adapted by s.143(2) of the Bengal Tenancy Act; or (3) the body of law wherever found that gives a decree-holder the right to execute against all properties of a judgment-debtor.
It was also faintly argued that s.168A might be repugnant to the Bengal Tenancy Act as it stood at the time of amendment (an argument the Court rejected as misconceived in relation to s.107).

Respondents' / Judgment-Debtors' Arguments

The judgment-debtors contended that by virtue of section 168A of the Bengal Tenancy Act no property other than the land in arrears is liable to be sold in execution of a decree for arrears of rent; that contention was accepted by the Courts below.
Implicitly, Respondents' position relied on the Bengal Tenancy Act creating its own special procedure for landlord-tenant suits (Chapters XIII and XIV), including the limitation found in s.168A.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Satish Chandra Hui v. Sudhir Krishna Ghose	Held that s.168A of the Bengal Tenancy Act is valid and not rendered void by s.107(1) of the Government of India Act; held there was no repugnancy between s.168A and provisions of the CPC (secs. 51 and 60).	This Court (both judges) expressly agreed with and followed that Division Bench decision, treating it as supportive authority that s.168A is not repugnant to the Code of Civil Procedure and is therefore valid.
Satish Chandra Bandapadhya v. Bishnupada Pal	Same proposition as in Satish Chandra Hui: s.168A held valid and not repugnant to the CPC.	The Court noted concurrence with that Division Bench decision and relied on it as confirming that s.168A does not conflict with the general execution provisions of the CPC.
United Provinces v. Atiqa Begum	Authority that Item No. 21 of the Provincial Legislative List (land, land-tenure, relation of landlord and tenant, and the collection of rents) is comprehensive enough to include remedial and procedural provisions incident to those matters; "collection of rent" includes "recovery".	Pal, J. relied on this authority to support the proposition that the Bengal Tenancy Act (including procedural and remedial provisions like s.168A) falls in pith and substance within Item No. 21 of the Provincial List and is therefore not a Provincial law "with respect to" a Concurrent List matter.

Court's Reasoning and Analysis

Sen, J. — Reasoning (concise):

Accepted that s.168A is a provincial provision and that the Code of Civil Procedure was an existing Indian law enacted before the Government of India Act; acknowledged the Appellant's reliance on s.107 of the Government of India Act.
Distinguished diversity from repugnancy: repugnancy requires conflict where two provisions seek to occupy the same field; mere difference is insufficient.
Held that s.168A is part of the Bengal Tenancy Act's special procedural code (Chapters XIII and XIV). The Bengal Tenancy Act provides its own procedure for landlord-tenant suits; though much is borrowed from the CPC, the Code does not apply to the Tenancy Act ex proprio vigore.
Pointed to s.143 of the Bengal Tenancy Act, which indicates that the CPC applies only to the extent made applicable by the Tenancy Act and rules thereunder, confirming the special procedural field occupied by the Tenancy Act.
Relied on s.4 CPC which preserves special or local laws and special forms of procedure — in his view, the special procedure in the Bengal Tenancy Act is unaffected by the CPC; therefore no repugnancy between s.168A and s.51 CPC.
Concluded that s.168A and s.51 occupy different fields (special tenancy-procedure vs. general execution procedure) and thus can co-exist; accordingly s.168A is not void under s.107(1).
Noted earlier decisions (Satish Chandra cases) holding s.168A valid and agreed with them.

Pal, J. — Reasoning (detailed analytical frame):

Set out the text and purpose of s.107(1) and s.107(2) of the Government of India Act and definitions of "Provincial law" and "existing Indian law".
Analysed various textual readings of s.107(1) to determine whether both the Provincial law and the existing Indian law must be "with respect to" the same matter enumerated in the Concurrent List; concluded that the two sub-sections must be read together and that both laws must be with respect to the same Concurrent List matter to attract s.107(1).
Applied the doctrine of pith and substance: to determine what the Provincial law is "with respect to" one must examine the substance of the entire enactment, not isolated provisions. On that approach the Bengal Tenancy Act (including the 1940 amendment enacting s.168A) is in pith and substance a law with respect to Item No. 21 (land, land-tenure, landlord & tenant) of the Provincial List.
Rejected the Appellant's argument that the subject-matter for legislation in the particular provision should be viewed in isolation (i.e., focusing only on execution procedure as falling within Concurrent List Item No. 4).
Held that Item No. 21 is wide enough to cover procedural and remedial provisions incidental to landlord-tenant law (citing United Provinces v. Atiqa Begum), including provisions on curtailment of execution rights like s.168A.
Concluded that the Provincial law in question was not "with respect to" a Concurrent List matter; therefore s.107(2) special assent procedure was not required and s.107(1) does not render s.168A void.
Went on to say that even on the alternative assumption that the Provincial provision might be treated as dealing with a Concurrent List matter, there was no repugnancy between s.168A and sections 51 and 60 CPC — a view supported by the prior Division Bench decisions (Satish Chandra cases) and by established rules of statutory construction (generalia specialibus non derogant), so the special provision would prevail in its field.
Addressed and rejected the contention that s.168A does not "confer any special jurisdiction or power" within the meaning of s.4 CPC; he held that even absent s.4 there was no repugnancy because the two provisions can co-exist.
Result: s.168A is valid; there is no repugnancy rendering it void under s.107(1).

Holding and Implications

Holding: The appeals were DISMISSED. Both Sen, J. and Pal, J. held that section 168A of the Bengal Tenancy Act is valid and is not void under section 107(1) of the Government of India Act, 1935 by reason of any alleged repugnancy to section 51 (or related provisions) of the Code of Civil Procedure. There was no order as to costs, and a certificate under section 205 of the Government of India Act (that the case involves a substantial question of law as to the interpretation of the Government of India Act) was granted.

Implications:

Direct effect between the parties: the execution relief sought by the Appellant to attach and sell property other than the land in arrears cannot be sustained to the extent precluded by s.168A; the dismissal of the execution proceedings below is thereby affirmed.
The Court followed prior authoritative decisions (Satish Chandra Hui v. Sudhir Krishna Ghose and Satish Chandra Bandapadhya v. Bishnupada Pal) holding s.168A valid; the opinion thus confirms and applies those precedents rather than establishing a novel principle beyond that alignment.
The Court certified that the case involves a substantial question of law under s.205(1) of the Government of India Act concerning interpretation of s.107 — a procedural step noted in the judgment.

This summary is based exclusively on the content of the provided opinion. No information has been invented or inferred beyond the text.

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Sree Sreejut Maharaja Sri Bir Bikram Kishore Manikya Bahadur Decree-Holder, v. Tofazzal Hossein And Ors. Judgment-Debtors,

The Judgment of the Court was as follows:

Sen, J.:— The Appellant obtained a decree for arrears of rent against the Respondents and in execution thereof sought to attach and sell their properties, movable and immovable, other than the land which was in arrears. That land had already been sold in execution. The judgment-debtors contended that by reason of the provisions of sec. 168A of the Bengal Tenancy Act no property other than the land in arrears was liable to be sold in execution of this decree for arrears of rent. This contention was given effect to by both the Courts below and the execution case was dismissed. The decree-holder appeals.

2. Several arguments were raised in the Courts below by the Appellant, but here he gives up all his contentions except one: and that is that sec. 168A of-the Bengal Tenancy Act, to the extent that it limits sales in execution of decrees for rent to the property in arrears, is void, inasmuch as it is repugnant to sec 51 of the Code of Civil Procedure which says that a decree may be executed by the sale and attachment of any property of the judgment-debtor. Reliance is placed on Sec. 107 of the Government of India Act the relevant portions of which are in these terms:

107. (1) If any provision of a Provincial law is repugnant to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the existing Indian law shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

(2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provisions repugnant to the provisions of an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or of His Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter:

3. There can be no doubt that see, 168A is a provision of a Provincial law.

4. It has been enacted by the Provincial Legislature established under the Government of India Act (Vide sec. 311). There can also be no doubt that the Civil Procedure Code is an existing Indian law inasmuch as it is a law made before the commencement of Part III of the Government of India Act by a legislature having power to make such law (Vide sec. 311). Further, it is a law relating to a matter enumerated in the Concurrent List being Item No. 4 (Civil Procedure) of that list. Lastly, it is a fact that no assent of the Governor-General or of His Majesty the King has been received for the enactment of sec. 168A of the Bengal Tenancy Act. If, therefore, sec. 168A of the Bengal Tenancy Act is repugnant to the Civil Procedure Code, then it must be void to the extent to which it is so repugnant.

5. The question for determination therefore is whether it is repugnant. In my opinion it is not. True, sec. 168A of the Bengal Tenancy Act differs from sec. 51 of the Civil Procedure Code. Sec. 168A of the Bengal Tenancy Act prohibits the sale, in execution of a decree for arrears of rent, of any property of the judgment-debtor other than the land in arrears, whereas Sec. 51 of the Civil Procedure Code states that a decree may be executed by the sale of any property belonging to the judgment-debtor. But diversity and repugnancy are not the same thing. Repugnancy implies a conflict. Two provisions of the law may be diverse or dissimilar but nevertheless there may be no conflict between them. Conflict arises when two diverse elements meet in seeking to occupy the same field. Where they do not meet, there is no conflict.

6. I shall endeavour to show that there is no conflict between sec. 168A of the Bengal Tenancy Act and sec. 51 of the Civil Procedure Code, because these two diverse provisions occupy different fields. Sec. 168A of the Bengal Tenancy Act does not touch the Code of Civil Procedure at all. It is a provision of the Bengal Tenancy Act and it seeks to alter the procedure laid down in that Act. No doubt, most of the provisions of the Code of Civil Procedure have been incorporated in the Bengal Tenancy Act but it is quite clear that the Civil Procedure Code, as such, does not apply to the Bengal Tenancy Act ex proprio vigore. The Bengal Tenancy Act provides its own procedure. Chap. XIII of that Act deals generally with the judicial procedure to be followed in suits between landlords and tenants as such and Chap. XIV, in which sec. 168A appears, deals specifically with sales in execution of decrees for arrears of rent. Sec. 143 which is the first section in Chap. XIII says this:

143(1) The High Court may, from time to time, with the approval of the Provincial Government, make rules consistent with this Act, declaring that any portions of the Code of Civil Procedure, 1908, shall not apply to suits between landlord and tenant as such or to any specified classes of such suits, or shall apply to them subject to modifications specified in the rules.

(2) Subject to any rules so made, and subject also to the other provisions of this Act, the Code of Civil Procedure, 1908 shall apply to all such suits.

7. As I interpret this section, it lays down in general terms the judicial procedure to be followed in suits under the Bengal Tenancy Act between landlords and tenants as such; in doing so it says that the procedure shall be the same as that laid down in those provisions and those provisions only of the Code as have been made applicable to suits between landlords and tenants as such by the Bengal Tenancy Act itself or by the rules made thereunder. To me it is quite clear that the Bengal Tenancy Act provides its own special procedure, although most of it has been borrowed from the Code of Civil Procedure. Sec. 168A is merely an item of that special procedure and does not in any way encroach upon the domain in which sec. 51 of the Civil Procedure Code functions. The two sections do not meet and so they cannot be in conflict. There is accordingly no repugnancy.

8. The view that I have taken is supported by the provisions of sec. 4 of the Code of Civil Procedure the relevant portion of which is in these terms:

(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

9. Under this section, not only is any special law existing at the time of the enactment of the Code left unaffecetd, but the section goes on to say that any special form of procedure that maybe prescribed by any other law for the time being in force will also not be affected by the Code. In other words, if a subsequent law lays down any special form of procedure, such special procedure will not be affected by the Code of Civil Procedure. Now, as I have said before, Chapter's XIII and XIV of the Bengal Tenancy Act lay down a special form of procedure. That procedure therefore is unaffected by the Code of Civil Procedure. There can consequently be no conflict or repugnancy between any provision of the Code of Civil Procedure and sec. 168A of the Bengal Tenancy Act which is a section dealing with the special form of procedure under the Bengal Tenancy Act.

10. It was argued, though faintly, that sec. 168A was repugnant to the Bengal Tenancy Act as it stood at the time of the amendment and therefore it must be held to be void to the extent of its repugnancy inasmuch as the Bengal Tenancy Act is itself an existing Indian law. This argument, however, cannot be supported. Sec. 107 of the Government of India Act says that the provisions of a Provincial law will be void if it is repugnant to a provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent List. Now the Bengal Tenancy Act is not a law with respect to a matter enumerated in the Concurrent List: it is a law with respect to Item 21 of the Provincial Legislative List which is in these terms:

“21. Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land: land improvement and agricultural loans; colonization; Court of Wards; encumbered and attached estates; treasure trove.”

11. The words “law with respect to a matter” cannot reasonably mean the substantive law only relating to that matter. The word ‘law’ embraces both substantive and procedural law and a “law with respect to a matter” would include the special procedural law, if any, relating to that matter. I am not unmindful of the fact that “Civil Procedure” is an item in the Concurrent List, being item No. 4 of List III, Part 1. But there “Civil Procedure” is used in a general sense as the procedure applicable to litigation generally; it does not include a special law of procedure which is applicable only to litigation regarding a special matter. The Bengal Tenancy Act, when it deals with procedure, does not deal with Civil Procedure general but it deals with the procedural law applicable to a special class of suits dealing with matters included in item No. 21 of the Provincial list. Therefore, even when it deals with procedure it is not an existing Indian law with respect to a matter enumerated in the Concurrent List but it is a law with respect to a matter in the Provincial List.

12. Sec. 168A, although it alters the existing Bengal Tenancy Act in respect of sales in execution of decrees for arrears of rent, cannot therefore be said to be repugnant to the provisions of an existing Indian law with respect to any matter enumerated in the Concurrent List.

13. This question came up for decision in two cases viz., Satish Chandra Hui v. Sudhir Krishna Ghose(1) and Satish Chandra Bandapadhya v. Bishnupada Pal(2) where it was held that sec. 168A of the Bengal Tenancy Act is valid law. I respectfully agree with those decisions for the reasons stated above.

14. The appeal is accordingly dismissed. There will be no order as to costs.

15. A certificate under sec. 205 of the Government of India Act is granted.

Pal, J.:— I agree that this appeal should be dismissed.

16. The only point urged in this appeal is that sec. 168A of the Bengal Tenancy Act, in so far as it lays down that “a decree for arrears of rent .. shall not be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree …. relates”, is void to that extent under sec. 107(1) of the Government of India Act, 1935.

17. sec. 107(1) of the Government of India Act provides as follows:—

“If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.”

18. “Provincial law” is defined by sec. 311 of the Act thus:

“Provincial Act” and “Provincial law” mean, subject to the provisions of this section, an Act passed or law made by a Provincial Legislature established under this Act “.

19. Sec. 168A of the Bengal Tenancy Act is “a Provincial law” or “a Provision of a Provincial law”, it having been inserted in the Bengal Tenancy Act by Act XVIII of 1940, passed by the bengal Provincial Legislature established under the Government of India Act, 1935.

20. The expression ‘existing Indian Law’ is defined by the same section thus:—

“Existing Indian law” means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of Part III of this Act by any legislature, authority or person in any territories for the time being comprised in British India, being a legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulaton”.

21. Dr. Sen Gupta contends that ‘the existing Indian Law’ in question here is:

(1) Sec. 51 of the Code of Civil Procedure as it is;

or (2) sec. 51 of the Code of Civil Procedure as adapted by the Bengal Tenancy Act sec. 143(2);

or (3) the law wherever to be found giving the decree-holder a right to execute his decree against all the properties of the judgment-debtor.

22. Admittedly the Bengal Act XVIII of 1940, which enacted sec. 168A of the Bengal Tenancy Act, was not passed following the procedure laid down in sec. 107(2) of the Government of India Act.

23. If, therefore, the provision in the Provincial law in question and the provision in the existing Indian Law in question satisfy the requirements of sec. 107(1) of the Government of India Act and if there be repugnancy between the two provisions in any extent, the Provincial law will be void to the extent of the repugnancy.

24. Reading the sec. 107(1) of the Government of India Act, 1935 by itself, there is some difficulty in seeing the exact bearing of the words “with respect to one of the matters enumerated in the Concurrent Legislative List”. As the section stands, these words may be taken with

1. “an existing Indian law”

or 2. any provision of an existing Indian law

or 3. ‘repugnant’.

25. In sub-sec. (2) of the section, however, these words are taken with “a provincial law” and “an existing Indian law.” The sub-section runs thus:

“Where a Provincial law with respect to one of the matters enumerated in, the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or His Majesty, the Provincial Law shall in that province prevail, font nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter”.

26. According to this sub-section, the Provincial law in question must itself be “with respect to one of the matters enumerated in the Concurrent Legislative List”, and the existing Indian Law must also be with respect to that matter. The repugnant provisions need only be contained in such “provincial law” and “the existing Indian law”; and beyond being contained in them these provisions themselves are not required by the sub-section to be “with respect to” any particular matter. Taking the two sub-sections together it appears to me that the following possible sets of requirements might have been within the contemplation of the section:—

1. (a) the Provincial law must be with respect to one of the matters enumerated in the Concurrent List;

(b) the existing Indian law must also be with respect to the same matter;

(i) these provisions themselves are not required to be with respect to any particular matter;

or (ii) these provisions must also be with respect to one of the matters enumerated in the Concurrent Legislative List;

2. (a) the provincial law need not be with respect to one of the matters enu merated in the Concurrent List;

(b) the existing Indian law must be with respect to one of the matters enumerated in the Concurrent List;

(i) these provisions themselves are not required to be with respect to any particular matter:

or (ii) these provisions must be with respect to one of the matters enumerated in the Concurrent Legislative List;

or (iii) the provision in the existing Indian law must be with respect to one of the matters enumerated in the Concurrent Legislative List; the provision in the provincial law is not required to be with respect to any such matter;

3. (a) the provincial law is not required to be with respect to any of the matters enumerated in the Concurrent Legislative List;

(b) the existing Indian Law also is not required to be with respect to any of the matters enumerated in the Concurrent Legislative List;

(c) A provision in (a) must be repugnant to a provision in (b), the repugnancy being with respect to one of the matters enumerated in the Concurrent Legislative List. This can happen only when the provisions are with respect to the same matter and that matter is one of those enumerated in the Concurrent Legislative List.

27. It should be noticed here that the expression “Provincial Law” and “existing Indian law” do not necessarily-mean and refer to any entire statute. Any provision of a “Provincial Act” or of a “Provincial law” will also be a provincial law. Similarly a provision of an existing Indian law will also be “an existing Indian law”. In the above analysis, however, we have kept them distinct, in view of a particular contention raised by the learned Advocate for the Appellant, as will appear later.

28. In my opinion the two sub-sections must be read together. In order to fall within the mischief of sec. 107(1) of the Government of India Act, 1935, both the Provincial law and the existing Indian law must be with respect to the same matter and that matter must be ‘one of the matters enumerated in the Concurrent Legislative List.’ Sub-sec. (1) declares a provision to be void ‘subject to the provisions of this section.’ The invalidity imposed by sub-sec. (1) will not attach to the provision if the provincial law in question is passed in the manner contemplated by sub-sec. (2). In my opinion, therefore, only that kind of the Provincial law is contemplated by sub-sec. (1) as is covered by sub-sec. (2). The sub-sec (2) clearly contemplates only a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List.

29. The Provincial law in question in the present case is a provision contained in the Bengal Council Act XVIII of 1940. The question, therefore, is whether this Act can be said to be ‘with respect to one of the matters enumerated in the Concurrent Legislative List.’ In Satish Chandra Hui v. Sudhir Krishna Ghose a Division Bench of this Court, of which I was a member, observed that this enactment in pith and substance was one with respect to ‘land-tenure’ and consequently with respect to item No. 21 of the matters enumerated in the Provincial Legislative List. I see no reason to differ from the view which we took in this respect in that case.

30. It is contended on behalf of the Appellant that as every provision in this Act is a ‘Provincial law’ as defined by the Government of India Act, 1935, we are to see not the pith and substance of the entire enactment, but the matter for legislation in the particular provision. Here, it is contended, the particular provision is sec. 168A, Bengal Tenancy Act and the subject-matter for legislation in this particular section is ‘a matter included in the Code of Civil Procedure’ in 1935,—is the matter included in sec. 51 of the Code of Civil Procedure. This is item No. 4 of the Concurrent Legislative List. Consequently, it is contended that sec. 168A of the Bengal Tenancy Act is “a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List,” or is ‘a provision of a Provincial law’ with respect to one of the matters enumerated in the Concurrent Legislative List, within the meaning of Sec. 107 of the Government of India Act, 1935.

31. I am unable to accept this contention. In my opinion it is opposed to the very doctrine of ‘pith and substance.’ In order to see “with respect to” what matter the legislature is exercising its legislative function, we are to look to the substance of the entire subject-matter for legislation and not to every detailed provision severed from the context.

32. It is further contended that Item No. 21 of the Provincial Legislative List does not cover the matter provided for by sec. 168A, Bengal Tenancy Act.

33. The relevant portion of Item No. 21 of the Provincial Legislative List stands thus:

“land, that is to say, rights in or over land, land tenure, includinng the relation of landlord and tenant, and the collection of rents…”

34. Dr. Sen Gupta contends that these words comprehend only the substantive rights and liabilities, relating to land and land tenure and do not cover any remedial provisions in relation to such rights and liabilities. According to him the use of the word “collection” in the item is significantly narrow and it does not comprehend even ‘recovery’ of rent. He refers to Item No. 2 of the list in order to show that the matter of jurisdiction and powers of Courts with respect to any of the matters in this list was kept as a distinct subject-matter so as to indicate that the other items in the list would not cover such matters even incidentally. Dr. Sen Gupta then contends that even Item No. 2 is not comprehensive enough to cover the matter dealt with in sec. 168A, Bengal Tenancy Act. According to him it is only Item No. 4 of the Concurrent Legislative List which embraces the provisions contained in this section.

35. In my opinion the words in Item No. 21 of the Provincial List are comprehensive enough to cover the remedial as well as the procedural provisions concerning the reliefs in respect of the rights and liabilities admittedly covered by the item. The law relating to landlord and tenant has always been understood to be comprehensive enough to include such matters. The Bengal Tenancy Act, for example, which professes to give the law relating to landlord and tenant, contains provisions like its secs. 143, 148, Chap. XIV. The matter, I believe, has been set at rest by the Federal Court in The United Provinces v. Atiqa Begum(3).

36. The same case is also an authority for saying that the words “collection of rent” are comprehensive enough to include “the recovery” thereof, and that it will be within the competence of the legislature to make incidental remedial provisions while legislating with respect to land, land-tenure, the relation of landlord and tenant, and the collection of rent. Provisions in curtailment of the decree-holders' right to execute his decree for arrears of rent were not unknown even before this sec. 168A of the Bengal Tenancy Act, and such provisions were always made in statutes relating to the matters enumerated in Item No. 21 of the Provincial List. Sec. 148(O) of the Bengal Tenancy Act may be referred to as an instance of such a provision.

37. The Provincial law in question in the present case was not, therefore, with respect to one of the matters enumerated in the Concurrent Legislative List and consequently the special procedure laid down in sec. 107(2) of the Government of India Act was not at all called for in its case.

38. As I have stated above, “the Provincial law” in sub-sec. (1) of sec. 107 also must be “with respect to one of the matters enumerated in the Concurrent Legislative List.” The Provincial law in question in the present case not being with respect to such a matter, the law does not at all come within the mischief of sec. 107(1) of Government of India Act, 1935, and consequently no provision of it can be void under that section.

39. In the above view it is unnecessary to enquire which is the rival existing Indian law and whether there is any repugnancy between its provision and the provisions contained in sec. 168A, Bengal Tenancy Act. Dr. Sen Gupta Gupta himself contends in the alternative that sec. 51 of the Code of Civil Procedure was not by its own operation the law in the field. It was sec. 51 of the Code of Civil Procedure as adapted by sec. 143(2) of the Bengal Tenancy Act for the purpose of the suits between landlord and tenant. If so, then even this provision as contained in the Bengal Tenancy Act will, in pith and substance, be a part of the law relating to landlord and tenant. In such a case even the Provision of the existing Indian law will not be “with respect to one of the matters enumerated in the Concurrent Legislative List” within the meaning of Sec. 107 of the Government of India Act, 1935. Whether the Provincial law need or need not be with respect to one of the matters enumerated in the Concurrent Legislative List, there can be no doubt that the rival Provision of the existing Indian Law must be with respect to such a matter.

40. If the existing Indian law be taken to be the law, wherever to be found, giving the decree-holder a right to execute his decree against all the properties of the judgment-debtor, then again it is not “with respect to one of the matters enumerated in the Concurrent Legislative List.” This right, treated as a right of the decree-holder, is certainly not a matter of jurisdiction and powers of Courts. Dr. Sen Gupta contends that such a right was also a matter included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935, and therefore is covered by Item No. 4 of the Concurrent Legislative List. Dr. Sen Gupta points out sec. 51 of the Code as providing for this right.

41. The right of the decree-holder is the result of the jural relation constituted by the decree itself. A new right in personam in favour of the decree-holder arises out of this jural relation and the legal advantages of the dominus (the decree-holder) involved in this right are available against the personality of the servus (the judgment-debtor). This personality extends over portions of the physical world over which the power of the person is extended. This is how the property belonging to the judgment-debtor becomes available to the decree-holder for the realisation of the judgment-debt. The provisions in the Civil Procedure Code do not create this right or its attendant advantages. These either only limit this right or the legal advantages by withdrawing some of the properties from their extent or only prescribe the mode of realisation of this right or these advantages.

42. It was pointed out in Satish Chandra Hui v. Sudhir Krishna Ghosh and Satish Chandra Bandapadhya v. Bishnu-pada Pal (2) that the provision in sec. 51 of the Code of Civil Procedure did not contain the law giving such a right. It simply gives the procedure in execution and enumerates in general terms the various ways in which the Court may order execution of a decree.

43. Assuming now that in order to attract the operation of sec. 107(1) of the Government of India Act, “the Provincial law “need not be With respect to any of the matters enumerated in the Concurrent Legislative List, or that the words “with respect to” do not refer to the pith and substance of the entire legislation but mean and refer to the matter that is being dealt with in the particular provision, then the provision contained in sec. 168A (1) of the Bengal Tenancy Act is in apparent rivalry with the provisions contained in secs. 51 and 60 of the Code of Civil Procedure. The question is whether there is any repugnancy between the provisions.

44. In Satish Chandra Hui v. Sudhir Krishna Ghose it was held by a Division Bench of this Court, of which I was a member, that between secs. 51 and 60 of the Code of Civil Procedure on the one hand and sec. 168A (1) of the Bengal Tenancy Act on the other, there was no repugnancy and that accordingly sec. 168A (1) of the Bengal Tenancy Act, though a Provincial Law not assented to by the Governor-General or His Majesty, was not rendered void by sec. 107(1) of the Government of India Act. The same view was taken by another Division Bench in Satish Chandra Bandapadhya v. Bishnupada Pal.

45. I see no reason to differ from the view taken in these cases.

46. Dr. Sen Gupta contends that even assuming that sec. 168A of the Bengal Tenancy Act purports only to deal with matters of jurisdiction or power of Courts, or with matters of procedure, its provisions do not amount to conferring ‘any special jurisdiction or power’ or prescribing any special form of procedure within the meaning of sec. 4 of the Code of Civil Procedure and consequently the repugnancy shall not be withdrawn by the automatic operation of that section.

47. His contention is that sec. 168A (1) does not at all confer any power; on the other hand, it curtails the existing power of the Court.

48. In my opinion, even without the help of sec. 4 of the Code of Civil Procedure, there will be no repugnancy between the provision contained in sec. 168A (1) of Bengal Tenancy Act and that in sec. 51, Civil Procedure Code. The one test of such repugnancy is to see if the two can co-exist even without the assistance of sec. 4, Civil Procedure Code. In my opinion they can.

49. Some of the recognised rules of construction of the statutes are:

(1) Generalia specialibus non dorogant —General things do not derogate from Special:

(2) Generalia tantum valet in gene-ralibus quantum singulare in singulia —What is general prevails as much amongst things genera] as what is particular amongst things particular.

50. Had there been these two apparently rival provisions in the field, the general provision of the Code of Civil Procedure would have withdrawn itself, (even without its provision in sec. 4, but by reason of these rules of construction), from the particular portion of the field and would have given space to the particular or the special provision contained in sec. 168A, Bengal Tenancy Act, designed to cover only the particular field of jural relations relating to land, land-tenure, etc.

51. In my judgment, therefore, sec. 168A of the Bengal Tenancy Act is a valid piece of legislation and is not void to any extent.

52. The case certainly involves a question as to the interpretation of Sec. 107 of the Government of India Act, 1935, and in our opinion it is a question of law and is a substantial question. We accordingly certify, as required by sec. 205(1) of the Act, that it involves a substantial question of law as to the interpretation of the Government of India Act, 1935.

C.C

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