ORDER
R.K. Batta, J.
1. The petitioner society had granted a loan of an amount of Rs. 25,000/- to respondent No. 1, who is member of the said society. Respondents Nos. 2 to 7 who are also the members of the said society, stood as sureties for the due repayment of the said loan. Respondent No. 1 failed to pay the loan amount and the matter was referred to Registrar’s Nominee. The Nominee, by his judgment dated 18-1-1984 passed an order against respondents Nos. 1 to 7 for the repayment of Rs. 41,792.61 paise as on 18-1-1984, together with interest at the rate of 20% per annum from 1-10-1983, till final payment of the amount, besides costs of Rs. 170/-. The petitioner thereafter had to seek execution and in this process, salaries of respondents Nos. 3, 4 and 7 were sought to be attached. The orders for attachment of salary of the said respondents were passed by respondent No. 8. Respondent No. 4, by letter dated 10-7-1990, addressed to respondent No. 8 submitted that 28 monthly instalments from his salary had already been deducted and in view of section 60 of the Code of Civil Procedure, salary beyond a period of 24 months, could not be attached. The petitioner objected to this letter and contended that the provisions of section 60 of Code of Civil Procedure could not be applied. Similarly, respondent No. 7 also addressed letter dated 13-5-1990, requesting that no deduction should be made after 24 monthly instalments. It appears that in case of respondent No. 3 even in spite of the order of attachment, his salary was not attached. In view of the said letters of
respondents Nos. 4 and 7, no further attachment of the salary was effected. The petitioner claims that loans have been granted to large number of its members and if the salary beyond 24 monthly instalments is not attached, it would cause immense loss to the petitioner.
2. The challenge in this petition is to the vires of Rule 104(6) of the Cooperative Societies Rules, 1962 (hereinafter called as “the said Rules”) applicable to the State of Goa on the ground that the said Rule imposes restrictions on the amount to be recovered and to that extent it is ultra vires the registrar’s power to recover the loans under Sec. 156 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter called as “the said Act”) as applied to the State of Goa. It is further submitted by the petitioner that the rule making authority has sought to restrict powers to execute the Award and the said Rule 104(6) is without authority of law and, as such, null and void. The petitioner, therefore, seeks declaration that Rule 104(6) of the said Rules to the extent that it makes recovery subject to the provision of section 60 of the Code of Civil Procedure, 1908 is ultra vires the section 156 of the Act. Alternatively, the petitioner’s case is that the said rules came into force on 26-1-1963 and section 60 of the Code of Civil Procedure, as it stood then, could be applied and the subsequent amendment to section 60 could hot be pressed into service, so as to restrict the recovery of the salary beyond 24 instalments.
3. Learned Advocate Shri R.G. Ramani, submitted before us that a total sum of Rs. 69,570.31 paise could only be recovered and the balance due from the respondents Nos. 1 to 7, as on 31-12-1998, is to the tune of Rs. 97,477.71 paise. His main contentions are that section 60 of Code of Civil Procedure militates against the powers of the Registrar to effect recovery of loans under section 156 of the said Act beyond 24 months and, as such, Rule 104(6) of the said Rules which restricts the said power of the Registrar under the said Act, is not only null and void, but it is beyond the competence of rule making power. Secondly, it had been urged that even if the challenge of ultra vires raised by the petitioner is not accepted, section 60, C.P.C. has to be read with Rule 104(6) as it stood on the date of coming into force of the said Rules i.e. 26-1-1963, since section 60 stands incorporated in the said Rules and any subsequent amendment to section 60 of Code of Civil Procedure, would not affect the said incorporation. In support of his contentions, the learned Advocate Shri Ramani has placed reliance on Mahindra and Mahindra Ltd. v. Union of India, and Government of T. N. v. S. Balasubramanian, .
4. On the other hand, learned Advocate Shri S.D. Lotlikar, appearing on behalf of respondents Nos. 1, 3, 4, and 7 urged that no agreement which is referred to in section 49 of the said Act had been pleaded and the transaction, in question, is essentially governed by section 98 of the said Act which, itself, speaks of certificate signed by the Registrar or a Liquidator, be deemed to be a decree of the Civil Court and it has to be executed in the same manner as a decree of such Court. According to Shri Lotlikar, there is absolutely no merit in the challenge in relation to the vires raised by the petitioner. According to Shri Lotlikar, it is not a case on incorporation of section 60, C.P.C. in Rule 104(6), but it is only a case of reference in the said Rule as a result of which, section 60, as it stands at the time of execution, has to be looked into
and in view of section 60, as it stood at the time of execution. Salary beyond 24 months cannot be attached in the same case. Shri Lotlikar has placed reliance on Gauri Shankar Gaur v. State of U.P., .
5. In order to appreciate the rival contentions, on the question of vires, it is necessary to look into the relevant provisions, which would be applicable to the matter under consideration, in order to decide this submission. Section 49 of the said Act provides for execution of an agreement by a member in favour of the society empowering the employer to deduct from the salary or wages, such amount as may be specified in the agreement and to pay the same to the society. If such an agreement is executed, the employer, on a requisition, in writing, made by society, shall continue to deduct the amount agreed so long as the society does not intimate that the whole of such debit or demand has been paid. In case of failure of the employer to deduct the amount specified in the requisition from the salary or wages of the concerned employee or making default in remitting the amount deducted to the society, the employer shall be personally liable for the payment thereof. In the case under consideration, no such agreement had been pleaded and, as such, section 49 does not come into play.
6. Section 98(a) of the said Act provides that a certificate signed by the Registrar or a Liquidator shall be deemed Co be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court. Section 98(b) provides for another mode of execution according to law and under the Rules for the time being in force for the recovery of arrears of land revenue. Thus, it is significant to note that a certificate signed by the Registrar or a Liquidator is deemed to be a decree of a Civil Court and it can be executed in the same manner as decree of such Court. Secondly, such decree can be executed according to law and under the Rules for the time being in force for the recovery of arrears of land revenue. The third mode of execution is provided under section 156, which is without prejudice to any other mode of recovery provided by or under the Act, empowers the Registrar to recover the amount under the award by attachment and sale of property. Rule 80(2) provides for execution of awards. It lays down that :
“80(2) If the amount due under the award is not forthwith recovered, or the order thereunder is not carried out, it shall be forwarded to the Registrar with an application for execution along with all information required by the Registrar, for the issue of certificate under section 98. The applicant shall state whether he desires to execute the award by a Civil Court or through the appropriate authority as provided under section 98 or through the Registrar as provided under section 156.”
Rule 80(3) provides that :
“80(3) On receipt of such application for execution the Registrar shall forward the same to the proper authority for execution along with a certificate issued by him under section 98 and a proclamation issued under Rule 79 in the manner prescribed “therein.”
There is no challenge to Rule 80. Rule 104(1) provides :
“104(1) Any society or creditor holding a decree (hereinafter referred to as “the applicant”) requiring the provisions of section 156 to be applied, shall apply to the Recovery Officer within whose jurisdiction the debtor resides or the property of the debtor is situated.”
The powers of the registrar under section 156 are subject to such rules as may be made by the State Government and without prejudice to any other mode of recovery under the Act.
7. Rule 104(6) deals with attachment of salary or allowances or wages of a
public officer. It reads :
“104(6) Where the movable property to be attached is the salary or allowances or wages of a public officer or a railway servant or a servant of a local authority or a firm or a company, the Recovery Officer may, on receiving a report from the Sale Officer, order that the amount shall subject to the provisions of section 60 of the Code of Civil Procedure, 1908, be withheld from such salary or allowances or wages either in one payment or by monthly instalments as the Recovery Officer may direct and upon receipt of the order, the officer or other persons whose duty it is to disburse such salary or allowance or wages shall withhold and remit to the Sale Officer, the amount due under the order or the monthly instalment, as the case may be.”
Thus, Rule 104(6) can, neither, be said to be beyond the competence of the Rule making power, nor we find any merit in the challenge to the vires of Rule 104(6) vis-a-vis section 156 of the Act. In addition, it may be pointed out that in terms of section 98, read with Rule 80(2), the Award can even be executed through the Civil Court and in such eventuality, the provisions of section 60, C.P.C. would naturally come into play and attachment of salary beyond 24 months is not permissible thereunder. It is now well settled that once a fiction is created, it should be taken to its logical conclusion. Thus, the provisions of Chapter II, C.P.C. and Order 21, C.P.C. can be resorted to for execution of the decree.
8. Coming to the second challenge which relates to the submission that section 60, C.P.C. has been incorporated in Rule 104(6) of the said Rules, ‘it would be necessary to refer to the rulings upon which reliance has been placed by the Advocates for the parties. Learned Advocate for the petitioner has placed reliance on the judgment of the Apex Court in Mahindra and Mahindra Ltd. v. Union of India, (supra). In this case, the Apex Court had to consider the scope and ambit of an appeal under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 which provided, inter alia, that any person aggrieved by an order made by the Commission under section 13, may prefer an appeal to the Apex Court on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908. Section 55 was enacted on 27-12-1969 being the date of coming into force of the Act. Section 100, C.P.C. as it stood then specified three grounds on which a second appeal could be brought to the High Court and one of these grounds was that the decision appealed against was contrary to law. Therefore, under section 100, C.P.C. as it stood then, there should be question of law, in order to attract the jurisdiction of High Court in second appeal and if reference in section 55 was to the grounds set out in the then existing section 100, there could be no doubt that an appeal would lie to the Apex Court under section 55 on a question of law. However, subsequent to the enactment of section 55, section 100 was substituted by a new section by section 37 of the Code of Civil Procedure with effect from 1-2-1977 and now
section 100 provides that second appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law. The three grounds on which a second appeal could lie under the former section 100 were abrogated and in their place only one ground was substituted which was a highly stringent ground, namely that there should be a substantial question of law. When the appeal was preferred before the Apex Court, new section 100 was in force and the argument advanced by the respondents therein was that the maintainability of the appeal was, therefore, required to be judged by reference to the ground specified in the new section 100 and the appeal could be entertained only if there was a substantial question of law. The respondents relying upon section 8 of the General Clauses Act, 1897, contended that the reference in section 55 in respect of section 100 had to be construed as reference to the new section 100 and as such, the appeal could be maintained only on the ground specified in section 100, that is to say, on a substantial question of law. The Apex Court negated the contention holding that :
“…..It ignores the distinction between a mere reference to or citation of one
statute in another and an incorporation which in effect means bodily lifting a provision of one enactment and making it a part of another. Where there is mere reference to or citation of one enactment in another without incorporation, section 8(1) applies and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provisions repealed is required to be construed as reference to the provision as re-enacted. Such was the case in the Collector of Customs, Madras v. Nathella Sampathu Chetty, and The New Central Jute Mills Co. Ltd. v. The Assistant Collector of Central Excise, Allahabad, . But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it. Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporations provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provisions incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. Lord Esher, M.R,, while dealing with legislation by incorporation in (In re. Wood’s Estate), 1886(31) Ch. D. 607 pointed out at page 615 :
“If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or pointed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.”….
It is, therefore, clear that if there is mere reference to a provision of one statute in another without incorporation, then, unless a different intention clearly appears, section 8(1) would apply and the reference would be construed as a reference to the provisions as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute. The question is to which category the present case belongs.
9. We have no doubt that section 55 is an instance of legislation by incorporation and not legislation by reference. Section 55 provides for an appeal to this Court on “one or more of the grounds specified in section 100″. It is obvious that the legislature did not want to confer an unlimited right of appeal, but wanted to restrict it and turning to section 100, it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in section 55. The right of appeal was clearly intended to be limited to the grounds set out in then existing section 100. These were the grounds which were before the legislature and to which the legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the legislature intended to restrict the right of appeal. The legislature could never have intended to limit the right of appeal to any ground or grounds which might from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reasons why the legislature should have thought it necessary that these changes should also be reflected in section 55 which deals with the right of appeal in a totally different context. We fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under section 55 so that section 55 should be inseparably linked or yoked to section 100 and whatever changes take place in section 100 must be automatically read into section 55. It must be remembered that the Act is a self contained Code dealing with the monopolies and restrictive trade practices and it is not possible to believe that the legislature could have made the right of appeal under such a Code dependant on the vicissitudes through which a section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in section 100. Apart from the absence of any rational justification for doing so, such an indissoluble linking of section 55 with section 100 could conceivably lead to a rather absurd and startling result. Take for example a situation where section 100 might be repealed altogether by the legislature—a situation which cannot be regarded as wholly unthinkable. If the construction contended for on behalf of the respondents were accepted, section 55 would in such a case be reduced to futility and the right of appeal would be wholly gone because then there would be no grounds on which an appeal could lie. Could such a consequence ever have been contemplated by the legislature ? The legislature clearly intended that there should be a right of appeal though on limited grounds, and it would be absurd to place on the language of section 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. We must, therefore, hold that on a proper interpretation the grounds, specified in the then existing section 100 were incorporated in section 55 and the substitution of the new section 100 did not affect
or restrict that the grounds as incorporated and since the present appeal admittedly raised questions of law, it is clearly maintainable under section 55.”
9A. In Gauri Shankar Gaur v. State of U.P., (supra) has reiterated the same principles and has laid down that :
“In case of legislation by incorporation , the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later Act. It is not by reference. Locally when provisions in the former Act were repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal. It would be subject to the exceptions enumerated hereinbefore. The statute being distinct and different each is to be judged with reference to its own source that emerges from its scheme, language employed and purpose it seeks to achieve. If a later Act merely makes a reference to the earlier Act or existing law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved by section 8(1) of the General Clauses Act or void under Article 254 of the Constitution.”
In this case, it was held .
“Section 55 of the Act read with the schedule made an express incorporation of the provisions of section 4(1) and section 6 as modified and incorporated in the schedule. The schedule effected necessary structural amendments to sections 4, 6, 17 and 23 incorporating therein the procedure and principles with necessary modifications. Sections 28(2) and 32(1) prescribed procedure for publication of the Act without prescribing any limitation. It is a complete code in itself. The Act is not wholly unworkable or ineffectual. May be incompatible with provisos to section 6(1) of L.A. Act. The U.P. legislature did not visualise that later amendment to Central Act 1/1894 i.e. L.A. Act would be automatically extended. Thus, section 55 and the schedule can be said to have adapted only by incorporated of sections 4(1) and 6(1) and the subsequent amendments to section 6 did not become part of the Act and they have no effect on the operation of the provisions of Act.
It cannot be said that section 55 and the schedule must be so read as to apply section 6 as amended from time to time and shall be applicable to the proceedings taken under sections 28 and 32 of the Act.”
10. The Apex Court in Govt. of T. N. v. S. Balasubramanian, 1996 Lab.I.C. 458 (supra) had also examined the question of adoption by reference and by incorporation and pointed out distinction, as under :
“In law a distinction is drawn between a mere reference or citation of a statute into another and incorporation of a particular provision of a statute. While in the former case a modification, repeal or re-enactment of the statute that is referred will also have effect for the statute in which it is referred, but where a subsequent enactment incorporate the provisions of a previous enactment, then the borrowed provisions become an integral and independent part of the subsequent enactment and are totally unaffected by any repeal or amendment in the previous enactment.”
In this case, the controversy was whether Rule 6 of the Special Rules had referred to the provisions contained in Rule 22 of the General Rules by way of mere reference or by incorporation. The Apex Court held that Rule 6 of the
said Rules only refers to the provisions contained in Rule 22 of the general rules and it could be construed as incorporating by reference Rule 22 of the general rules into the said Special Rule, which means that a subsequent amendment in Rule 22 of the general rules would be applicable in the matter of appointment and it was not necessary to make an amendment to Rule 6 of the Special Rules to incorporate the amendment that was introduced in Rule 22 of the General Rules in 1967.
11. In view of the law laid down by the Apex Court, it is, therefore, necessary to determine whether reference to section 60 in Rule 104(6) of the said Rules is by way of incorporation or mere reference. We have already pointed out that in view of section 98 of the said Act, read with Rule 80(2) of the Rules, the previsions of Code of Civil Procedure contained in Part II and order 21, C.P.C. would be attracted. Accordingly, salary in terms of existing section 60 would be subject to attachment. The question of incorporation or reference has, therefore, to be examined in this context. Section 98 and Rule 80(2) provide for attachment of salary in terms of existing section 60, C.P.C. when the said mode of execution is resorted to. Rule 104(6), which deals with other mode of execution provided therein cannot be read differently in the context and has, necessarily, to be taken as a case of mere reference of section 60 therein. Harmonious construction of the provisions would also rule out the theory of incorporation. In this view of the matter, the reference made to section 60, in Rule 104(6) of the said Rules can, by no stretch of imagination, be said to be by incorporation. It is a case of mere reference and, as such, any amendment to section 60 will have to be read in the reference.
12. In addition, we would like to point out that section 60, as it stood at the time of coming into force of the said Rules, had a similar provision, which provided that attachment beyond 24 instalments was not permissible in one and the same decree and after 24 months, the salary shall be exempted from the attachment in execution of that decree. The relevant portion of section 60, as it stood then when the said Rules came into force, is as under:
“(i) salary to the extent of the first hundred rupees and one-half the remainder in execution of any decree other than a decree for maintenance :
Provided that where such salary is the salary of a servant of the Government or a servant of a railway company or local authority, and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree.”
The relevant portion of section 60, as it now stands, is as under :
“(i) salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance :
Provided that where any part of such portion of the salary as it is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty–four months such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made
in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty four months, be finally exempt from attachment in execution of that decree;”
A comparison of the two would show that in so far as attachment beyond 24 months is concerned, there is no change, though, the extent of the salary which can be attached under the provisions now in force is more, which is, in fact, beneficial to the decree-holder. Therefore, in so far as attachment beyond 24 months is concerned, there is no difference in the provision as it existed at the time when the rules came into force and the provision now applicable in that behalf. We, therefore, find no merit whatsoever in the submission of learned Advocate for the petitioner in this respect.
13. Except for attachment of the salary of respondents Nos. 4 and 7, the petitioner did not have recourse to any other mode of execution. Even the attachment of the salary, of respondent No. 3 was not executed. There does not appear to be any serious efforts on the part of the petitioner to recover the dues by other modes, that is to say, attachment of movable, or immovable property of the respondents and the petition appears to have been filed to meet the audit objection.
14. For the aforesaid reasons, we do not find any merit in this petition and, the petition is, hereby, dismissed with costs. Rule is accordingly discharged.
15. Petition dismissed.