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Judgment
A.H. Khan, J.—The facts giving rise to this revision are that the Petitioner Madan Gopal in his money-decree against Bhagwan Das Sethi got a house belonging to the judgment-debtor attached on 14-12-1952, whereupon the opponent Sohanlal filed an objection under Order 21, Rule 58 of the Code of Civil Procedure; alleging that on 4-12-1951, the judgment debtor had mortgaged the house in question to him by deposit of title deeds and that thereafter on 28-4-1953 sold the house out and out to the Petitioner; in full satisfaction of the mortgage-debt.
The decree-holder resisted the petition on two grounds: One, that mortgage by deposit of title deeds is only valid in the towns of Calcutta, Madras and Bombay (See Section 58-F of Transfer of Property Act) and that the property in question being situated in Gwalior, no effective mortgage could be created by deposit of title deeds; two, that the sale of the house took place on 28-4-1953 after it had been attached by the decree-holder on 14-12-1952.
The trial Court held that the sale of the property after attachment was void according to Section 643 of the Code of Civil Procedure. But it held the mortgage by deposit of title deeds to be valid u/s 59, Madhya Bharat Transfer of Property Act and ordered the property to be sold subject to burden of mortgage to the tune of Rs. 7,000/-. Against this order, the decree-holder has filed this revision.
The question for decision in this revision is when the Indian Transfer of Property Act (Act No. 4 of 1882) came in force in Madhya Bharat, Part B States (Laws) Act (Act No. 3 of 1951) provided for the extension of certain Indian Laws to Part B States. It is not disputed that the Indian Transfer of Property Act was one of the such laws that were extended to Part B States. According to Section 2 of the Part B States Laws Act of 1951, the Act was to come in force on "the appointed day" and this according to Gazette of India 1951 Part 2, Section 3 page 354 came into force on 1-4-1951. Section 3 of the (Act No. 3 of 1951) is the extension Clause and it runs thus:
EXTNSION AND AMENDMENT OF CERTAIN ACTS AND ORDINANCES : The Acts and Ordinances specified in the Schedule shall be amended in the manner and to the extent therein specified, and the territorial extent of each of the said Acts and Ordinances shall, as from that appointed day and in so far as any of the said Acts or Ordinances or any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws, be as stated in the extant clause thereof as so amended.
I must say that Section 3 is rather unhappily worded. But happily for me this clause has received judicial interpretation by a Division Bench of this Court consisting of my Lord the Chief Justice and my learned brother Dixit J. in a case reported in Mahendra Bahadur Singh Vs. State of Madhya Bharat and Another, . It is observed that:
It must be noted that Section 3 besides amending in certain respects, the Acts and Ordinances specified in the Schedule, also amends the extant clause of each of those Acts and Ordinances so as to extend them to Part B States.
In view of this decision, I have no hesitation in holding that the Transfer of Property Act came in force in Madhya Bharat on 1-4-1951. The learned Counsel for the opposite side contends that according to the Notification No. 285 VL issued by the Madhya Bharat Government in its Gazette dated 25-12-1952 page 627, the Indian Transfer of Property Act came into force in Madhya Bharat from 1st January 1953. I have looked up the gazette and there is a notification to the effect.
But when the Indian Parliament, by enacting Act No. 3 of 1951 has already extended the Transfer of Property Act on 1-4-1951, can the State Government give it a Different turn & override what the Parliament has done? No doubt para 4 of Section 1 of the Transfer of Property Act empowers the State Government to extend the Transfer of Property Act to its territory, but before this was clone, the Parliament, by enacting the Part ''B'' States Laws Act of 1951, forestalled the Madhya Bharat Government and extended the Transfer of Property Act to Madhya Bharat where it became a law on 1-4-1951. After this any subsequent Notification by the Madhya Bharat Government was uncalled for, unnecessary and has no effect. The Part ''B'' States Laws Act 1951, is not a recommendation to the Part ''B'' States Government to adopt laws given in the schedule but as the Act reads, it is an Act to provide for the extension of certain laws to Part ''B'' States. All the laws given in the schedule of the Act of 1951 became extended in Madhya Bharat on the "appoint-ed day i.e. on the 1st of April 1951. The notification of Madhya Bharat Government, in these circumstances, has no force, because they cannot ex-tend that which has already been extended by Parliament.
For reasons stated above, the revision is allowed and setting aside the order of the executing Court it is directed to carry on the sale without any encumbrances.