Thota Pichayya vs Govt. of Andhra and Others

Subba Rao, C.J.—This is an appeal against the order of Umamaheswaram J., dismissing the application filed by the Appellant under Article 226, Constitution of India to quash the ordar of the District Munsif, Tenali, in is. A. No. 971 of 1954 in B. P. No. 261 Of 1954.

Respondent 3 filed o. 8. No. 104 of 1948 on the tile of the District Munsif''s Court, Tenali, against the Appellant and Ors. for possession of the suit land, the Defendants, intar alia con-tended that they had occupancy rights in the said land The District Munsif decreed the suit. On appeal, the Subordinate Judge, Tenali, confirmed the same. When the Defendants preferred second appeals, a Division Bench of the Madras High Court, of which one of us was a member, dismissed the appeals. Subsequent to the dismissal of the appeals, Respondent 3 took out an execution application for possession and the learner District Munsif ordered delivery without giving any notice, to the judgment-debtors "When, the Defendant came to know of the said order, they tiled applications for reviewing the said order but they were also dismissed. The Appellant filed a writ petition NO 693 of 1954 in this Court to quash the order of the District Munsif mainly on the ground that Order 21, Rule 22. Code of Civil Procedure, offends the provision of Article 14, Constitution of India, and, therefore, constitutionally void. The application came before Umainahoswiu''am J, who dismissed it in a short order on the ground that the Appellant had a right of appeal which was a substantial and efficacious remedy. This appeal is filed against that order.

Mr. Lakshmiah, tho learned Counsel for the Appellant argued his case with ability and clarity. His jpntention may be stated thus. The validity of all Taws has to be tested on the touchstone of the new Constitution. Under Article 14 of the constitution, the State shall, not deny to any per-son equality before the law or the equal protection of the laws within the territory of India. The said article prohibits discriminatory and partial legislation, in favour of particular persons as against Ors. in like conditions. The same principle applies even regard to procedural measures. Though legislative classification is permissible, it shall not be arbitrary but must be based upon some differences, which bear a just and proper relation to the attempted classification The avowed object of Order 21, Rule 22, Code of Civil Procedure, is to give an opportunity to the judgment-debtor to show cause why the decree should not be executed against him. The Legislature discriminates between debtors against whom execution is levied within two years and those against whom execution is levied after two years. There is no reasonable basis for distinguishing these two classes of debtors as there are no distinctive characteristics placing them in different categories. Both are debtors and both are equally entitled to have an opportunity to show cause why the decree should not be executed against them. The time factor cannot and does not endow them with different attributes. The alleged distinction does not therefore, furnish any basis for such a classification ; nor has that distinction any rational relation to the object sought to be achieved The distinction between the two classes of debtors is not at all necessary to achieve the object viz. the principle of natural justice embodied in Order 21, Rule 22, CPC Further Order 21, Rule 22 is also bad in so far as it offends the principles of fundamental justice by depriving a particular class of debtors of the opportunity to show cause why the decree should not be executed against them.

The learned Advocate General countered. the said arguments thus : While it is true that Article 14 of the Constitution applies also to procedural measures, it prohibits only distinctions made without reasonable basis in regard to procedural rights for relief and for defence. It would be . enough if an entire Act or a Code as a whole stands the test laid down in that Article. It is not necessary that every Section of the said Act or Code should not contravene the provisions of that Article. That apart, the object of Order 21, Rule 22/ CPC is not to give an opportunity to the judgment debtor to show cause why the decree-should not be executed against him but it is only a part of a scheme embodied in Order 21, rule 22; whereby the Legislature intended to provide a machinery for executing a decree expeditiously without causing undue harassment to the judgment debtor. If so viewed, the classification of, judgment debtor is based upon a reasonable basis1 to achieve the said object.

Before considering the Argument''s advanced'' at the Bar the settled law on the subject may be noticed. In Prattipati Dandaiah v. Venkata-rama Dikshitulu, 1953 2 Mad L J 550 : AIR 1954 Mad 500 (A), after noticing the previous decisions,. I summarised the law on the subject as follows:

All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; Equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim, special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike In the-''same situation and under like circumstances. No-discrimination can be made either in the privileges conferred or in the liabilities imposed. But these-proposltlons conceived in the interests of the public.; If logically, stretched too far, may not achieve the-high purpose behind them. In a society of unequal basic structure, it is well-nigh impossible to make laws suitable in their application to all the persons-alike. So a reasonable classification is not only permitted but is necessary if society should progress. Bub such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purposes for which it made.

To this we will add the statement of Professor Willis that:

If any state of facts can reasonably be conceived to sustain a classification, the existence of the state of facts must be assumed and that one, who assails a classification, must carry the burden of showing : that it does not rest upon any reasonable basis.

It is also necessary to bear in mind the presumption of law laid down in Middleton v., Texas Power and Light Company, (1919) 249 U.S. 152 (B) that:

It must be presumed that a Legislature understands and correctly appreciates the need of its own people that its laws are directed to problems made-manifest by experience and that its discriminations; are based upon adequate grounds.

To the above statement I would like to adcl the following caution administered by Brewer J., in Gulf, Colorado and Santa Fe Ely. Co. v.'' EM, (1897) 165 U. S 666 (o):

While good faith and a knowledge of existing;. conditions on the part of a Legislature is to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or Corporations to hostile and discriminating Legislation is to make the protecting, clauses of the 14th Amendment a mere rope of sand,. in no manner restraining state action.

The later decisions do not in any waif detract from the aforesaid principles but applied them to different situations.

The equal protection clause was also applied to procedural measures. In The State of West Bengal Vs. Anwar Ali Sarkar, , it has been held that a rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination. The principle laid down in the aforesaid decision has been followed by the Supremo Court in what may be called for the sake of convenience decisions under the Special Courts Acts viz., Kathi Raning Rawat Vs. The State of Saurashtra, Lachman Keioalram v. State of Bombay, 1952 s. c. 710 : A. I. R. 1952 235 (F) and Kedamath v. Stats of West Bengal, A. I. R. 1953 s. o. 401 (a). The constitutional validity of the taxation on Income Investigation Commission Act 1947, though it was a law . prescribing a particular procedure in connection with the evasion of tax, was also tested on the crucible of the provisons of Article it of the Constitution of India. See Suraj Malli Mohta A Go. V. Viswanatha Sastry, A. I. R. 1951 s. o. 545 (n) and Meenakshi Mills v. Viswanatha Sastri, (s) A. I. R. 1955 13 (i). Indeed it is not necessary to consider in this context the aforesaid decisions in detail as it is not disputed that the procedural, law, conferring privileges or rights or imposing burdens, is equally within the ambit of the equality clause. The law on the subject was restated in clear terms by the Supremo Court in Budhan Choudhry and Others Vs. The State of Bihar, Das J., sum : marised the law at p. 165 (of s. c. J.) : (at p. 193 of A. I. R.) in the following terms:

It Is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of Legislation. In order however to pass the test of permissible classification 2 conditions must be fullllled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from Ors. left pub of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the Statute in question. The classification may be founded on different basis, namely, igeographical, or according to objects or occupations or the like. ''What Is necessary is that there must be & nexus between the basis of classification and the object of the Act under consideration. It is also well "stablishedby the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

It follows from the aforesaid decisions that every law whether it affects substantive rights or procedural rights, would be invalid under the Constitution, if the said law denies to any person quality before the law or equal protection of the laws within the territory of India. But, in the case of both kinds or laws Legislative classification is permissible if it is based on intelligible differentia and the said differentia has rational relation to the object bought to be achieved by the Act.

Mr. Lakshmiah cited decisions before in support of his contention that speedy disposal, time factor and similar circumstances cannot afford a reasonable basis for classification when they are not germane to the object sought to be achieved. Where a State Statute imposes an attorney''s fee not to exceed ten Bollars in addition to costs upon railway corporations omitting to pay certain claims within a certain time after presentation and when the said provision had no application to other corporations or individuals, iu was held by the Supreme Court of the United States in (1897) 165 u. a. 666 (0) that the said statute was invalid as it denied to the said corporations equal protection of the law. The following passage at p. 669 brings out the basis of that decision:

Indeed, the statute arbitrarily singles out one class of debtors and punishes it for a failure to perform certain duties-duties which are equally obligatory upon all debtors; a punishment not visited by reason of the failures to comply with any proper police regulations, or for the protection of the labouring classes, or to prevent litigation about trifling matters or in consequence of any special corporate .privileges bestowed by the State. Unless the Legislature may arbitrarily select one corporation, one individual or one class of individuals and visit a penalty upon them which is not imposed upon Ors. guilty of like delinquency, this statute cannot be sustained.

This decision is only an illustration of the well-settled principle that an arbitrary classification which does not bear reasonable and just relation to the Act3 in respect of which the classification is proposed, cannot sustain the validity of a law infringing the equality clause.

In Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 67 Law Ed 1112 : 262 t 544 (K), non-resident corporation, going into a state to recover possession of property wrongfully taken from it and brought into the state, was compelled by a Statute to come into the State without the service of process and submit to examination before trial under penalty of the dismissal of the suit, whereas the same Statute required examination of a resident to be in the country of his rosidenoe and also required service of process to bring non resident individuals before court for examination. The Supreme Court held that the equal protection clause of the 14th Amend, ment of the Federal Constitution protected the non-resident corporation and that the Statute was bad. Strong relianoe was placed upon this decision in support of the contention that, if the classification into non-resident individuals and non-resident corporations for the avowed object of dispensing with the service of process in the case of the former was constitutionally bad, for the same reason, Order 21, Rule 22, Code of Civil Procedure, should offend the equality clause in the Indian Constitution. The reasons for the Supreme Court decision are stated at p. 1116 as follows:

No doubt a corporation of one State, seeking relief in the courts of Anr. , must conform to the prevailing modes of proceeding in those courts and submit to reasonable rules respecting the payment of costs or giving security there for and the like; but it cannot be subjected, merely because it is such a corporation, to onerous requirements having no reasonable support in that fact, and not laid other suitors in like situations. Here the statute authorised the imposition, and there was imposed on the Plaintiff a highly burdensome requirement because of its corporate origin, a requirement which under the statute, could nor, be laid on an individual suitor in the same situation. The discrimination was essentially arbitrary. There could be no reason for requiring a corporate resident of Louisville to send its secretary, papers, files and books to Milwaukee for the purposes of an adversary examination that would not apply equally to an individual resident of Louisville in a like case. The discrimination is further illustrated by the provision that as to all residents of Wisconsin, individual and corporate the examination should be had in the country of their residence, no matter what its distance from the place of suit.

On the facts of that case, the learned judges found that their was no reasonable basis for the classification. The fact that one had a corporate origin and the other is an individual suitor, the learned judges pointed, was only an arbitrary classification for that differentia had no reasonable relation to the onerous requirements imposed on one and not on the other.

Bo too, when a provision of a state Milk Control Law denying to persona enib irking in the business of milk dealer after the date when the act took effect the benefit of a differential in the minimum price at which dealers may sell milk to stores and stores may sell to consumers, in favour of milk dealers not having a well advertised trade name, the Supreme Court held in ''Mayflour Farms v. Ten Eyck'', 80 LAAV 075 : 297 u. 266 (h) that the Law denied the equal protection of the laws. At p. 676, the argument of the learned Counsel questioning the validity of the law was summarised as follows : "The time limitation created by the words ''since April 10th, Nineteen Hundred thirty three,'' in the unadvertised differential provision, which prevents Appellant from enjoying and exercising the privilege thereby conferred is upon its face arbitrary, dls-creminatory, irrational and unconstitutional and denies to the Appellant due process and the equal protection of the law guaranteed by the fourteenth Amendment.

This argument was accepted by the Court. The learned Judges pointed out the said Law was not shown to have any relation to public health or welfare or to operate to discourage monopoly, or to be aimed at any abuse cognizable by law in the milk business. In that case, when it was pressed upon them that a statutory discrimina. tion should not be set aside as a denial of equal protection of laws if any state of facts reasonably may be conceived* to justify it, the learned judges pointed out that in the absence of any showing that the classification bore any relation to public health are welfare generally that the provisions would discourage monopoly or that it was aimed at any abuse cognizable by law in the milk business, they had no right to conjure up possible situations which might justify discrimination. In other words, this decision is an authority for the position that to justify a classification, some reasonable basis for it shall be established and mere time factor was not such a basis.

The learned Counsel also pressed into sorvico the Special Courts Act, cases decided by the Supreme Court in support of his contention that the requirement of a speedier trial in itself cannot be a basis for classification. In 1952 SOB 284 : (AIB 1952 s 0 75) (D), Das J. observed at p. 342 (of s. c. B.) : (at p. 96 of A.I.B.) as follows:

In order to be a proper classification so as not to offend against the Constitution, it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the preamble. In the illustration taken above, the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is no nexus between this difference and the object of the Act, for in the absence of any special circumstances, there is no apparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do.

Relying upon this observation, it was contended that, if the differentiation between the two categories of offenders had no reasonable relation to the object aimed at, viz., speedier trial, the same principle should apply td the two categories of debtors in the instant case, for there is no apparent reason why a debtor against whom a decree was executed within two years should not have an opportunity to show cause, while a debtor against whom a decree, was executed after two years should have such an opportunity. This argument no doubt appears to be sound, if it is conceded that the object intended to be achieved by the separate treatment of the two categories of debtors is only to give an opportunity to show cause. I shall deal with that aspect of the case at a later stage.

In 1952 S O B 435 : (AVB 1952 S 0 123) (B), Fazl Ali J., in dealing with the West Bengal Act, made the following observations at p. 448 (of SOB) : (at p. 128 of AIB).

The mere mention of speedier trial as the object of the Act did not cure the defect, because the expression ''Speedier trial'' standing by itself provided no rational basis of classification. It was merely a description of the result sought to be achieved by the application of the special procedure laid down in the Act and afforded no help in determining what cases required speedier trial....... These observations go to show that in the circumstances of that case, the fact that the. new procedure was intended to achieve the object of speedier trial was held not to afford a reasonabla basis for classification."

The tax evasion cases are relied upon in � support of the samo contention. In (s) AH; 1955 S c 13 (i), the question was whether Section 5 (l) of the Taxation on Income (Investigation Commission) Act was constitutionally void as infringing the provisions of Article 14 of the Constitution of India. That section laid down a special procedure for dealing with the cases of persons referred to the Investigation Commission before l-9-1948. At p. 17, Mahajan 0. J. made the following observations:

Assuming that evasion of tax to a substantial amount could form a basis of classification at all for imposing a drastic procedure on that class, the inclusion of only such of them whose cases had been referred before 1-9-1948 into a class for being dealt with under the ordinary law will be a clear discrimination for the reference of the case within a particular time has no special or rational nexus with the necessity for drastic procedure."

On that, and other grounds, Section 5 (l) of Act 30 of 1947 was held to be constitutionally bad. This decision also applied the same test laid down in the earlier cases and held that the time factor, in the circumstances of that case, had no rational nexus with the necessity of drastic procedure. It is not necessary to multiply cases. The law on the subject is well settled and the difficulty is only in applying it to the facts of each case. The legislature can classify persons with distinct and common characteristics and properties. That distinction must have a rational relation or nexus to the object sought to be achived.

The learned Counsel posed the following questions in support of his contention that the Legislature arbitrarily singled out one class of debtors. Why is the duty to pay without notice more imperative in the one instance than in the other? Why are debtors against whom execution is pending for not more than two years liable to be arrested and their properties liable to be attached without any hearing, while debtors falling on the other side of the line get an opportunity to be heard ? Are there any distinct characteristics and properties attached to these two classes of debtors to be differentiated in the manner the Legislature did ? How is the object viz., opportunity to be heard achieved by this classification ? He contends that both the classes of debtors deserve equal protection from the laws and cannot be discriminated, on9 against the other. In support of his contention that there is no rational basis for the distinction, he relies upon the varying trearerjent given by different States to the two classes of debtors In Patna, this distinction was abolished. In Calcutta ismo of notice is made imperative only if the application for execution is made more than one year after the date of the decree. In Madras, Bombay, Lahore, Peshawar, Simla and Andhra, notico is required in cases of application for execution made more than two years from the date of the decree. In Allahabad, Nagpur, Rangoon and Oudh notice is required only if the application is hied more than throe years from the date of the decree. It is, therefore, contended that this arbitrary fixation of time is also a clear indication that there is no rational bads for the classification.

While I appreciate the force of the argument, we are inclined to hold that the entire approach to the question is wrong. I cannot agree with the learned Counsel for the Appellant that the main object of 0. 21, B. 22 is only to give an opportunity to a judgment-debtor to show cause why execution should not be proceeded with against him. While I cannot agree with the learned Advocate. General''s contention that, if the entire Act generally did not contravene the doctrine of equal protection of laws, every section of that Act would be valid even if that section expressly infringed that rule, I agree with him that the provisions of the Act could be looked into to ascertain the object behind the different sections and that it is not necessary that the object should be expressly mentioned in the statute or in the section impugned. It is true that Mahajan J., as he then was in 1952 s. c. B. 284 : (A. I. B. 1952 s. o. 7.5) (D) stated at p. 312 (of s.o.R.) : (at p. 85 of A.I.R.) that Section 5, West Bengal Special Courts Act is hit by Article 14 of the Constitution in as much as it mentions no basis for the. differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences. Eelying upon the said statement, it is argued that the basis shall be mentioned in the Act itself and it cannot be gathered from the provisions of the Act. We do hot think that the learned Judge, by using the word "mentioned," intended to say that the basis should be expressed in terms. Indeed, every decision relied upon by the learned Counsel for the Appellant indicates that the Courts have looked into the provisions of the Act to ascertain whether the classification could be sustained on a reasonable basis or not. In A. I. R. 1953 Section 0. 404 (G) while dealing with the validity of Section 5(2) of the Prevention of Corruption Act, the learned Chief Justice, before considering the constitutional validity of the Act, made the following preliminary remarks:

"It is necessary to have a look at the provisions of the Act in order to ascertain the underlying policy and purpose of the legislation, what evil it seeks to remedy and what means it employs to that end,"

It is, therefore, necessary to ascertain the policy and the object underlying Order 21 to appreciate the scope of Rule 22 with which we are now concerned. A perusal of Order 21 shows that the various rules of that order form part of an integrated scheme to execute decrees as expeditiously �as possible without, at the same time, causing undue harassment to the debtors. It provides for the execution of three categories of decrees, decrees for payment of money, decrees other than for payment of money and decrees for possession of property. Decrees for payment of money can be executed against the person of the judgment. -debtor. Decrees for possession can be executed only by issuing a warrants for delivery of posses-sion. Excluding the second category of decree, let us briefly notice the procedure followed in the other two. In the case of a decree for pay-ment of money, if executed against a person, the'' Court shall issue a notice calling upon him to appear and show cause why he should not be committed to the Civil Prisons in execution of the decree. If he does not appear, the Court can issue a warrant of arrest but the judgment debtor can pay the amount due to the officer executing the warrant. If he appears in Court, he is given every opportunity to show cause why he should not be committed to prison. If he fails to show cause, he will be put in the civil prison but he will be released the moment ho pays the full amount due under the decree. The judgment. debtor will always be given an opportunity before action is taken against him. In the case of a decree executed against the property of the judgment-debtor, no doubt, within 2 years from the date of the passing of the decree, the judgment-debtor is not entitled to have notice under Order 21, Rule 22. But in the course of execution, he has many opportunities of preventing the sale of his property. After the decree holder filos an execution application asking for attachment, an interim order of attachment is made and the officer of the Court, to whom the warrant is issued, attaches the property. The judgment-debtor can appear and get the attachment raised by making out a case for the same. If he sloops over his rights at that time he can, during the pendency of the attachment, at any time, satisfy the decree through Court when the attachment will be withdrawn. After attachment is effected, wither the property is moveable or immovable, the Court issues a proclamation for sales giving the necessary particulars including the date of sale. There is a specific provision that no sale should take place until after the expiration of 30 days in the case of Immovable properties and at least 15 days in the case of moveable properties from the date on which a copy of the proclamation has been affixed to the Court house. The judgment-debtor can raise objection to the proclamation and can pay away the entire amount due under the decree before the property is sold, then, after the property is sold, he has a right to get the sale set aside by depositing the entire decree amount and the incidental costs in Court within 30 days from the date of the sale. He oan also apply for setting aside the sale on the ground of material irregularities and on the ground that he has sustained substantial injury by reason of such irregularities. But, in the case of applications made beyond two years from the date of the decree, execution cannot proceed without issuing a notice by the judgment-debtor to .show cause why the decree should not be executed against him.

In the case of Immovable properties, a warrant is issued for delivery of possession. If the application for execution is within two years from the date of the decree, no notice is given to the judgment-debtor before-issuing the warrant. If the application is made after two years, initial notice will be given to him. But, in both cases, if the execution application is irregular, the judgment-debtor can resist delivery of possession and under Order 21, Rule 98, the Court will get the obstruction removed if it is satisfied that the obstruction was occasioned without any just cause by the judgment-debtor.

It is therefore, seen from the aforesaid elaborate procedure that the Legislature attempted to reconcile the undoubted rights of the decree-holder to get the fruits of his decree as early as possible with those of the judgment-debtor by preventing undue harassment and prejudice to him. It is not a mere platitude but it is found to be true in practice that notwithstanding the said provisions, they are hopelessly abused and the difficulties of a decree-holder really begin .... after he obtains a decree. It is, therefore, not correct to state that the object of the Legislature in enacting Order 21, Rule 22 is only to protect the right3 of the judgment-debtor. In this con-text, let us now scrutinise the provisions of Order 21, Rule 22, Code of Civil Procedure, Order 21, Rule 22 roads:

(1) "Where an application for execution Is made : (a) more than two years alter the date of the decree or (b) against the legal, representative of a party to the decree or where an application Is made for execution of a decree filed under the provisions of S. 44-A or the Court executing the decree shall Issue a notice to the person against whom execution is applied for requiring to show cause on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution, if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution or in consequence of the application being made against the legal representative of the Judgment-debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him.

x x x x (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process In execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of Justice.

The idea underlying the rule is expressed in B. 2 viz., that the decree should be executed "without unreasonable dolay and without defeating the ends of justice. If the issue of a notice to the judgment-debtor causes unreasonable delay or defeats the ends of justice, the court is given an over-riding power to disponso with the issue of notice even in the case of applications filed, more than two years from the date of the decree.

The court also need not issue a notice if the exeoution application is filed within two years from the date of the decree. But, in the case of applications made more than two years from the date of the decree and in the case of execution proceedings taken against the legal representatives of the judgment-debtors, a duty is cast upon the court to issue a notice to the judgment-debtor to show cause why the decree should not be executed against him.

In Jogendra Ghandra Boy v. Shy am Das I. L. E. 36 cal. 543 (M), a Division Bench of the Calcutta High Court expressed the view that the object of Section 216 of the old CPC corresponding to Order 21, Rule 22 is as follows:

The object of this procedure as also of the procedure embodied in the corresponding Section 216 of the, Code of 1859 was to give notice, so as to prevent ! undue surprise to a judgment-debtor when more than one year had elapsed between the elite of the decree and the application for execution or when the decree was sought to be enforced against the legal represiative of the party against whom the decree 1 was originally made.

It appears to us, having regard to the schomo embodied, in Order 21, of which this rule is only an integral part, that notice is not insisted in the case of decree holders, who are diligent in oxecuting their decrees for the judgment-debtors could Hot possibly have any objection to the execution j of the decrees against them. But in the case of legal representatives, they may not have any ''knowledge that a decree has been obtained I against the deceased judgment-debtor or the legal representatives may have paramount rights of their own not derived from the judgment-debtor.

''In the case of old decrees, judgment-debtors, who may have been lulled into inactivity by the loi- Surely mode of execution of the decree or who ." may have paid the dobt and therefore are taken unawares if no opportunity is given to thorn to show cause, are given an opportunity to do so. It cannot, therefore, be said that the main object of this provision is to give an opportunity to the judgment-debtor to show cause why the decree should not be executed against him. On the orchard Hand, as we have already stated, the aforesaid dual purpose runs through this rule as it does through the entire Order 21. In this view, it cannot be said that there are no distinct characteristics and properties between the two categories of debtors and that the said distinctions have no relation with the dual object intended to |J Iha achieved by the Legislature.

But I would like to sustain my judgment on a more rational basis. I cannot find in Order 22, any discrimination between the different classes of creditors or debtors. The provisions of Order 21, Rule 22, apply to decree-holders and judgment-debtors alike though apparently a different treatment is meted out during the progress of the same execution. To illustrate : A obtains a decree against B on 1st March 1955. He can execute the decree without giving notice under that rule to B before 1st March 1957. If he does not take steps to execute the decree before that date, he cannot execute the decree thereafter without giving statutory notice. If he takes steps before the expiry of two years and obtains an order of execution within two years, he need not give any notice to B but thereafter he cannot execute the decree without giving notice. This illustrates that judgment-debtors are not classified at all. But the same rule applies to all the judgment-debtors, the variation in the mode of execution only deponding on the different stages in execution. In this view, no question of discrimination or classification arises and, therefore, the rule does not contravene Article 14 of the Constitution of India.

Even so, it is contended that the rule in so far as it offends principles of natural justice should be struck down and, in support of this contention, relianco is placed upon the relevant passages in Hood Phillips'' "Constitutional Law" and "Administrative Agencies and the Courts" by Cooper. In the view we have expressed, no question of offending principles of natural justice arisos in this case. We, therefore, do not propose to consider that aspect.

In the result, the appeal fails and is dismissed with costs, which I fix at Rs. 20o/-

Bhimasankaram, J.

I am of the same opinion. Before giving my reasons, I should like to state that I have the satisfaction that no point that could be urged in support of the contention raised on behalf of the Appellants is being overlooked, as Mr. Lakshmiah''s argument has been as comprehensive as it has been perspicuous.

Now, it seems to me that every executable decree is effective from the moment it is passed and the judgment-debtor is bound to obey it from that moment. As it is passed in the presence-real or constructive-of the judgment-debtor, it seems difficult to hold that there is any rule of natural justice that requires that ho should be given further notice when, because of his dofault of compliance, it is sought to bo put in execution against him. To take two of the most common kinds of decrees; if it is a decree for possession of Immovable property, the judgment-debtor is directed there under to put the decree-holder in possession and, if he does not do so, the decree, holder may, in reason, obtain such possession at any time while to decree is effective and remains unexecuted if

on the other hand, it is a decree for money and the judgment-debtor does not obey the decree by paying the amount, it may be executed by the process of attachment of moveable or Immovable property, or by the process of arrest or by both, and, in either case, the judgment-debtor will have actual notice. If that is the true position, all that can be urged for the Appellants is that, under Order 21, Rule, 22, CPC judgment-debtors under decrees more than two years old are conferred a privilege of notice which offends against the tonus of Article id of the Constitution. But even if we agree with Mr. Lakshmiah and adjust the requirement of notice as unconstitutional, it will not help his clients because all decorous can, then, be oxocutod without notice -whether they are more or less than two years old. It is to be noticed in this connection that "all the American cases cited for the Appellants are cases where positive disabilities were imposed tip on a class of individuals or corporations and where the Courts, quite rightly in my opinion, struck them down as being discriminatory impositions. In such cases, the equality rule is easily applied. My Lord the Chief Justice has discussed those cases in detail in his judgment and I do not propose to-cover the same ground. It is true that there can be discriminatory favouritism too, but, though the Courts can destroy a particular favour-of privilege conferred, they cannot direct a uniform distribution of like-favour or privileges. Thus, even if we accept the Appellants'' contention that there has been a discrimination by way of preferential treatment of a particular class, we cannot hold that the Appellants are untitled to notice along with the allegedly favoured class.

There is Anr. way of looking at the matter. While from the point of view of a judgment-debtor notice may be considered as a privilege, it would be in the nature of a disability from the point of view of a decree-holder. A decree-holder of a decree moor than two years old may very well complain that ho is discriminated against by the requirement as to service of notice. Thus, if Mr. Lakshmiah''s contention is sound, we shall have told in a case where a decree-holder complains, that all decree-holders should be free from the disability of having to issue notice while, when the complaint is made by a judgment debtor, we shall have to hold that all judgment-debtors are entitled to notice. In my opinion, the provisions of order 21, CPC can only be properly appreciated if one realises that they are designed to facilitate execution of decrees with the aid of Court, without undue inconvenience to the decree-holder on the one hand and without undue hardship or surprise to the judgment-debtor on the other. Now, if a decree has been allowed to stand unexecuted for some length of time-as to the measure of which there can be reasonable difference of opinion-then the provision as to notice ensures that the judgment-debtor is not taken by surprise. The time that has elapsed may cause him to think not unjustifiably if It is a decree for possession of land or a house, that he may continue in possession until he is given reasonable notice that h& will be dispossessed. Again, if a decree for money has not been executed against him for a year oir two, it may be that, on giving reasonable notice,, ho will be in a position to pay it up. Whilo a person who has waited for two years may not be-ablo to complain that ho has been unreasonably delayed by the rule as to notice, a person against whom a decree has remained unexecuted for a. similar period may reasonably complain if one-fine morning he is suddenly called upon to surrender the property or to pay the money. The requirement in question as to notice, while-enforcing diligence on the part of the decree, holder, is aimed at preventing the process of execution being used as a means of harassment or oppression by springing a surprise upon the-judgment-debtor at a moment of possible inconvenience. There are several instances in which the law, not without reason, attaches very great-importance to the time-factor. Every rule of limitation distinguishes between litigants who are diligent and who are not diligent, and, in so-distinguishing, makes a difference between persons against whom legal remedies are pursued with diligence and those against whom they are not so pursued. But, is that discrimination? Again, the English law and following in its foot-steps the Indian law penalises laches in some matters and thus unduly favours, if Mr. Laksh. miah''s argument is right, those people who can urge it as a defence to an action. I am clear that in all such cases there is no violation of the equality Article. In my view, therefore, there is in Order 21, Rule 22 (l)(a), Code of Civil Procedure, a classification on the basis, of a tangible and rational objective and that there is an intimate noxua-between the basis of such classification and the objective.

For these reasons, I agree with my Lord the Chief Justice that the W. A. should be dismissed. I also agree with the order as to costs.