GEEVARGHESE GEORGE Vs. K P ABRAHAM
LAWS(KER)-1968-10-1
HIGH COURT OF KERALA
Decided on October 20,1968

GEEVARGHESE GEORGE Appellant
VERSUS
K.P.ABRAHAM Respondents

JUDGEMENT

- (1.) The petitioner is the judgment debtor in a suit for realisation of money. The decree debt is above Rs. 10,000/-. When execution was sought, he filed E. A. 4 of 1978 requesting the Court to make a reference under O.46 R.1 of the Code of Civil Procedure. The petitioner stated that his annual income is less than Rs. l,000/-and that the debt stood extinguished under S.3 of Ordinance 1 of 1977. He contended that the subsequent enactment of Act 17 of 1977 could not revive a debt which stood extinguished and also that S.2(4)(i) of Act 17 of 1977 violated Art.14 of the Constitution in as much as it differentiated between debtors like him whose debt exceeded Rs. 3000/- and other debtors. He also contended that the above provision is violative of his fundamental right under Art.19(1)(g), 20 and 31 of the Constitution. The executing Court held without any discussion that the petition was not maintainable and dismissed the same. The revision petition is filed against the said order.
(2.) There is no doubt that the Court below should have passed a speaking order. The order that is now challenged does not show that the Court has applied its mind on the points involved. In such cases the proper thing would have been to remand the petition to the Court below with a direction to write a proper order. But since the revision petition has to fail ,on the merits, no purpose will be served if I follow the above procedure. That may only protract the proceedings. I shall, therefore, dispose of the petition on the merits.
(3.) The argument put forward on behalf of the petitioner is that the case falls under S.113 of the Code of Civil Procedure and the Court should have made a reference as contemplated in that provision. S.113 CPC. reads: "Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court." It is clear, therefore, that a reference ordinarily would lie only if the conditions and limitations prescribed under the Code are satisfied. O.46 R.1 deals with the conditions and limitations. The said provision reads: "Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where in the execution of any such decree, any question of law of usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt and Court may, either of its own motion or on the application of any of the parties draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision of the High Court." It is evident that the power under the above provision is discretionary and it is for the Court to decide whether it should make a reference to the High Court. But if a case involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case and the Court is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative and has not been so declared by the High Court or the Supreme Court, it is obligatory on the part of the Court to state a case setting out its opinion and the reasons therefor and refer the same for the opinion of the Court.;


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