P L D 1969 Lahore 461 (PLP)

ANWARUL HAQ, J.‑

This judgment will dispose of Letters Patent Appeals bearing Nos. 32 and 154 of 1968, which are between the same parties and raise the same question of law, namely, whether a residential house belonging to a judgment- debtor and in his occupation is exempt from attachment or sale under section 60 of the Code of Civil Procedure.

2. The respondent S. R. Rehmatullah obtained two decrees against the appellant Muhammad Sharif one for Rs. 91,868.25 and the other for Rs. 7,061.67, from the Court of the Senior Civil Judge, Sialkot, and in execution of these decrees the residential house of the appellant was attached at the instance of the decree‑holder. The appellant objected that in view of the provision contained in clause (ccc) of subsection (1) of section 60 of the Civil Procedure Code the house was immune from attach ment, but the objection was dismissed by the learned Senior Civil Judge by his order dated the 2nd of May 1967, holding that the clause in question stood repealed by section 14 of the West Pakistan Relief of Indebtedness Ordinance, 1960 (XV of 1960) which has repealed among others, section 35 of the Punjab Relief of Indebtedness Act (VII of 1934) by which the clause had been incorporated in the Civil Procedure Code. The learned Judge expressed the view that the clause was not saved by section 5 of the West Pakistan General Clauses Act of 1956.

3. Aggrieved by the order of the learned Senior Civil Judge, the appellant went up in appeal, but the same was dismissed by the learned District Judge by his order dated the 23rd of December 1967. The appellant thereupon filed two Execution Second Appeals, namely, L. P. As. Nos. 34 and 35 of 1968, which came up for hearing before our learned brother Mushtaq Hussain, J. and were dismissed by him by a single order dated the 29th of January 1968.

4. The learned Judge in Chambers has held that clause (ccc) was introduced in subsection (1) of section 60 of the Civil Procedure Code by section 35 of the Punjab Relief of Indebted mess Act (VII of 1934) as amended by section 16 of Act XII of 1940, and that it stood repealed owing to the repeal of sections 30 to 36 of the Punjab Relief of Indebtedness Act, 1934 by section 14 of Ordinance XV of 1960, for the reason that a different intention was manifest from section 7 of the Ordinance read with the definition of the term "debtor" as contained in section 2(c)(iii) thereof. This conclusion was reached by the learned Judge after considering the, effect of section 5 of the West Pakistan General Clauses Act of 1956 in the light of various principles of interpretation as propounded by the authorities. The learned Judge, therefore, hold that the present appellant as a non‑agriculturist debtor with assets exceeding Rs. 5,000 was not protected in the matter of the attachment and sale of his main residential house.

5. The main contention raised by Sheikh Muhammad Shafi, the learned counsel appearing for the appellant, is that in spite of the repeal of section 35 of Act VII of 1934, by which clause (ccc) was introduced in subsection (1) of section 60 of the Civil Procedure Code, this provision of law has remained intact in view of the general principle of interpretation, as enunciated by judicial authorities and as embodied in section 5 of the West Pakistan General Clauses Act, 1956, namely, that the repeal of an amending statute does not affect the continuance of the amend ment made by that enactment and incorporated in another statute, unless a different intention appears from the repealing enactment. It is submitted by the learned counsel that the learned Judge in Chambers has erred in thinking that such a different intention was apparent from Ordinance XV of 1960, as the Ordinance was clearly intended to afford protection to debtors, and not to take away the protection which they were already enjoying under the existing legislation. The learned counsel has taken point to emphasise that such an intention could not be reconciled with the new trends in a welfare State like Pakistan. Finally, the learned counsel has submitted that, in any case, the Court has the power, as held in Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty (P L D 1961 S C 119) "to modify the language of an Act to give effect to the manifest and undoubted intention of the Legislature". In support of this, last proposition the learned counsel has also referred to observations appearing on page 221 of Maxwell on Interpretation of Statutes, Eleventh Edition . . . . which have in fact been relied upon by their Lordships of the Supreme Court. The suggestion is, that if we also find that Ordinance XV of 1960 does indeed tend to support the conclusion reached by the learned Single Judge, then we should modify the language of this legislation so as to hold that the immunity enjoyed by debtors at large under the said clause has remained unaffected.

6. After hearing the learned counsel on both sides, we have come to the conclusion that the view taken by the learned Judge in Chambers is correct and must be upheld. As already stated, clause (ccc), on which the appellant relies, was incorporated in subsection (1) of section 60 of the Code of Civil Procedure by section 35 of Act VII of 1934 as amended by section 16 of Act XII of 1940. This clause lays down that "one main residential house: and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment‑debtor, other than an agriculturist, and occupied by him" shall not be liable to attachment or sale in execution of a decree. Although the clause is so worded that it appears to give protection to all: non‑agriculturist judgment‑debtors, yet it seems to us that there is merit in the submission made by Mr. Munawar Akhtar, appearing for the respondent‑decree‑holder, that in order to, appreciate its true import the object underlying the Act of 1934 should not be lost sight of. That Act was promulgated to amend the law governing the relations between debtors and: creditors and in subsection (2) of section 7 of that Act the term, "debtor" was defined to mean "a person who owes a debt and (i), who earns his livelihood mainly by agriculture, and is either a landowner, or tenant of agricultural land, or a servant of a: landowner, or of a tenant of agricultural land, or (if) who earns his livelihood as a village menial paid in cash or kind for work connected with agriculture, or (iii) whose total assets do not exceed Rs. 5,000". This last clause was added by Act XII of 1940. Now, although section 35 by which the provisions of section 60 of the Civil Procedure Code were amended appears in Part VIII of Act VII of 1934 and the definitions of the terms "debt" and "debtor" are contained in Part IV dealing with Deb Conciliation Boards, yet it would be legitimate to read the same meaning into the term "debtor" as employed in section 35 of the Act, as there is no separate definition or interpretation clause in Part VIII of that Act. If, therefore, the limited meaning, assigned to the term "debtor" is read into clause (ccc), then it would appear that the protection granted by this clause was made available to non‑agriculturist debtors whose assets did not exceed Rs. 5,

000. It is true that the clause in question was inserted in a section of the Civil Procedure Code and, therefore, it can be argued that for its proper interpretation the definition of the term "judgment‑debtor" as appearing in that Code should be invoked, but this argument overlooks the fact that the clause in question is a piece of Provincial Legislation introduced through an Act having the limited object of granting protection to agriculturist debtors of all categories and non-agriculturist debtors of only a certain category. For this reason the wide meaning of the term "judgment‑debtors" as given in clause (10) of section 2 of the Civil Procedure Code, namely, "any person against whom a decree has been passed or an order capable of execution has been made, cannot be imported into it. On this view of the matter. it appears to us that from its very inception clause (ccc) added to subsection (1) of section 60 of the Civil Procedure Code was not intended to give protection to a non agriculturist debtor whose assets exceeded Rs. 5,

000. From this it follows that even if the clause has remained intact after the repeal of section 35 of Act VII of 1934 by Ordinance XV of 1960, the residential house of the appellant would not be immune from attachment or sale in execution of the two decrees obtained against him by the respondent, as it is not alleged that the appellant's assets do not exceed Rs. 5,000.

7. Assuming, however, that clause (ccc) was indeed intended to be of wider application so as to give protection to non‑agriculturist debtors of all descriptions falling within the defini tion of the term "judgment‑debtor" as contained in the Civil Procedure Code, and was not confined to non‑agriculturist debtors with assets not exceeding Rs. 5,000, then the effect of the repeal of section 35 of Act VII of 1934 has to be examined in the light of the principle embodied in section 5 of the West Pakistan General Clauses Act, 1956. As already stated, this section lays down that "where any West Pakistan Act repeals any enactment by which the text of any enactment was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal". The question, therefore, is whether a different intention does or does not appear from the repealing enactment, namely, Ordinance XV of 1960. The two provisions of this Ordinance which are directly relevant in the present context are section 2 (c) (iii) defining the term "debtor" and section 7 containing a substantive provision granting protection to debtors against attachment and sale of their houses and other buildings. The definition of the term "debtor" in section 2 (c) (iii) is the same as was previously incorporated in section 7(2) of Act VII of 1934 as amended by Act XII of 1940, and accordingly it need not be repeated here. The other provision, namely, section 7, is in the following terms:‑ "Notwithstanding anything contained in the Code of Civil Procedure, 1908, the houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a debtor, shall not be liable to attachment or sale in execution of any decree, if such houses "and other buildings are not proved by the decree‑holder to have been let out on rent or lent to persons other than the debtor's father, mother, wife, son, daughter, daughter‑in‑law, brother, sister or other dependents or left vacant for a period of a year or more Provided that the protection afforded by this section shall not extend to any property specifically charged with the debt sought to be recovered."

8. It would be seen that section 7 embodies a comprehensive provision extending protection both to agriculturist and non agriculturist debtors as defined in section 2 (c) (iii) of the Ordinance. In fact it also incorporates the conditions which were added by Act XII of 1940 to clause (c) of subsection (1) of section 60 of the Civil Procedure Code in relation to agriculturist debtors alone. The intention of the Legislature, therefore, appears to be to make a comprehensive provision in this behalf at one place, namely, in a law specifically dealing with the subject of protection to debtors. It is true that by definition the term "debtor" has a restricted meaning in so far as non agriculturist are concerned but this does not appear to us to run counter to the welfare trends in Pakistan as suggested by Sheikh Muhammad Shafi, the learned counsel for the appellant. It is clear that the Legislature was intending to grant protection to all agriculturist debtors for obvious reasons, and to non‑agriculturist debtors of only limited means, namely, having assets not exceeding Rs. 6,

000. By thus expressing itself in clear terms the Legislature does appear to have indicated by necessary intendment a different intention within the meaning of section 5 of the West Pakistan General Clauses Act, 1956. The position which, therefore, emerges is that although normally with the repeal of section 35 of Act VII of 1934 clause (ccc) would not be affected, yet it stands repealed on account of the different intention manifest from section 7 of Ordinance XV of 1960 read with section 2 (c) (iii) thereof.

9. In view of the clear intention of the Legislature being manifest from the language of the relevant statute, as question arises of our being competent to modify that language so as to bring the meaning in conformity with the true legislative intent. Such a necessity would arise only when the intention of the Legislature was clear but the language of the statute was not so clear, or there was an obvious omission in the statute which would militate against the manifest intention underlying that statute. No such situation arises here.

10. For the aforesaid reasons, we consider that the residential house of the appellant is not immune from attachment to sale in the execution of the two decrees which are outstanding against him, as there is no assertion that his total assets do not exceed Rs. 6.000. Both the appeals, therefore, fail and are hereby dismissed with costs. A. E. Appeal dismissed.