from frustrated vitality, in the same way that some juvenile delinquency springs from the frustrated adventurousness of youth. A few sexual murders, a few political assassins may fall under this heading. Then there are a number of murders that arise out of sheer brutality, insensibility to suffering. Such murders feel no more pity for the victim than a cat feels for the mouse it tortures. They are the opposite of all that we mean by civilization which is essentially, learning to feel for other people. They are found mainly in the gangster class and it might be argued that if any criminals deserve the death sentence, it is these men.

Towards the end of 1931, the Vienna C.I. Department was looking into the past of one Matuschka who was suing the Hungarian Railways as a victim of the Bia-Torbagy disaster, which occurred in September 1931 when twenty two people were killed in a train crash (not to compare with the recent Island Express tragedy in Kerala). Matuschka's part proved to be very suspicious. It was soon ascertained that he was in. the habit of purchasing explosives. In consequence Matuschka was arrested and questioned; he finally confessed to being responsible not only for the Bio-Torbagy disaster, but also for attempt to derail the Vienna-Passau train and the Vienna Express in the same year in which many passengers were injured.

Matuschka was the son of a cobbler and had served in the army. He claimed that his peculiar perversion began when he was a boy, and a hypnotist at a fair suggested train disasters to him. During the 1914 war he served as an officer in charge of a machine gun company. In 1919 he married the daughter of one of his school teachers. He made money through black marketing. In 1927 he was charged with swindling, but found not guilty. After this he speculated in business and lost heavily. It may have been the strain of these losses that turned his mind to the idea of blowing up trains to obtain sadistic pleasure. He prepared his attempts in great detail before attempting to detrail the Vienna-Passau Express.

His first trial began in Austria in June 1932. A mentalexpert called by the prosecution declared that Matushcka was moralistic, a sadist, had a lust for power and for sensations, but was mentally well. During the trial Matushcka seemed to be out to give an impression of insanity, he cried aloud, trembled and prayed. The Court could not reach an agreement and further trials followed during which Matushcka talked of a spirit called 'Leo' ordered him. One of the things that came to light during the trial was that Matushcka was a man who could experience sexual excitement most deeply when he saw a train crashing, and consequently made an occupation of train wrecking. Matushcka was finally sentenced to death by hanging in November, 1934. A powerful factor for the final verdict was a map found in his house with the, sites for further operations marked in red ink and the places included Amsterdam, Marseiles and Paris.

A Critique of 1999 (2) KLT 699John V. George Jacob

(By P.S. Leela Krishnan, Advocate, Quilandy)

While interpreting Negotiable Instruments Act 1881 S.138 Proviso (b) in the above case Hon'ble Justice K.A. Mohammed Shafi is very much off the mark both in giving the correct dictionary meaning of the word 'receipt' and in its proper interpretation.

In short the revision centered round the interpretation given to proviso (b) which reads like this: (b) "the payee or the holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of receipt of information by him from the Bank regarding the return of the Cheque as unpaid."

His Lordship after discussing the dictionary meaning of the word receipt says in para 11 "From the context, at which expression 'receipt of information used' in Proviso (b) to S.138.....it is clear that what the Legislature intended is a receipt of information in writing and not a mere oral information though the words in writing do not find in that proviso at the context." Further His Lordship unnecessarily fears "if notice as stipulated in Proviso (b) to S.138 is issued on wrong information regarding the dishonour of the cheque, it will lead to several disasterous consequences."

According to me the word 'receipt' is given an ungrammatical interpretation contrary to the natural construction of the sentence. The receipt of information means on receiving information. The receipt is used there as the noun form of receive and not as the independent noun receipt meaning of which His Lordship took pains in finding in the Concise Oxford Dictionary, Black's Law Dictionary etc. Receipt here means according to major dictionaries: act of receiving or being received, acknowledge receipt of a letter, an order etc. on receipt of news he left.

Maxwell on the Interpretation of Statutes says. The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning and second is that the phrases and sentences are to be construed according to the rules of grammar. The rule of construction is to intend theLegislature to have meant what they have actually expressed.....it is well accepted thatthe beliefs and assumptions of those who frame Act of Parliament cannot make the law.

So much so the meaning attributed to 'receipt' is out of context and ungrammatical. Receipt of information, there means only receiving information, immaterial whether oral or in black and white.

Here in the above case the payee got information of the dishonour of the Cheque on 20.12.1989 when he went to the Bank. But receives written information of the dishonour only on 6.1.1990 at his convenience. If that is what is meant by the Legislature, parties can take legal measures according to their convenience. Law does not allow such leisurely attitudes on the part of litigants. They must be vigil ant. In these circumstances I do not think 1999 (2) KLT 699 will remain good law for long.

Auction Purchaser at Peril

(By V.K. Sathyavan Nair, Advocate, Kottayam)

It is submitted that 1999 (1) KLT 278 Ayyappa v. Ananda requires reconsideration.

The proposition laid down by the Court mat the auction purchaser is bound to prove that the disputed property belonged to and was in the exclusive possession of the Judgment debtor is a deviation from the accepted rule hitherto followed in die proceedings deciding matters connected with obstruction to delivery of property.

The Court seems to have not taken note of the scope, object and purpose of amendment of the general scheme of rules 97 to 103 of Order XXI in order to clothe the Execution Court with jurisdiction to determine all questions including questions relating to right, title or interest in the property.

There was a conflict of decision on the point whether a claim for possession by a purchaser in Court auction i n pursuance of execution of a decree is or is not a question relating to the execution of decree. It was set at rest by amending S.47 by C.P.C. (Amendment) Act, 1976. The amendment seeks to make it clear that such a question is a question falling under the section. Consequentially the relevant rules of 0.21 were also amended. Previously the execution court can pass only a summary order in matters of claim and obstruction. As per R.103 of O.XXI as it stood before amendment the Summary order is conclusive subject to the result of a regular suit by the defeated person. So the party against whom an adverse order is passed is driven to file a fresh suit It would cause delay and hardships. In order to avoid unnecessary delay and protracted proceedings the execution court has been given a wider jurisdiction in terms of amended S.47. Now the execution court itself has the jurisdiction to decide questions of title, right and interest of the parties. There can be not doubt, as observed by the Court, that the execution court is required to go into the question of right, title and interest in the property not only of the claimants, but of the judgment debator or auction purchaser also. But that does not mean that the burden of proof is on the auction purchaser.

By any stretch of imagination it cannot be argued that C.P.C. (Amendment) Act 1976 has shifted the burden of proof. The main feature of the amendment is conferring wider jurisdiction on the execution court to decide matters regarding right, title and interest. The amendment does not in any way indicate any change of law regarding burden of proof. The accepted position is that is for the obstructor to prove his entitlement to possession. A relevant passage from Sreenath v. Bajesh JT 1998 (3) SC 244 is extracted below.

"So under O.XXIR.101 all disputes between the decree holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree holder and other person claiming title on their own right to get it adjudicated in thevery execution proceedings.......After investigation under R. 98 the Court puts back a decree holderin possession where the Court finds obstruction was occasioned without just cause, while under R. 99 where obstruction was by a person claims in good faith to be in possession of the property on his own right."

In a suit O.XXIR.103 C.P.C. (before amendment) the Plaintiff must prove not only that he was in possession when he obstructed the defendant (auction purchaser) but he must also establish the right which he claims to the present possession of the property. If he succeeds in doing so, his dispossession during the pendency of the suit does not matter. If his right is proved, then the order of removal of Plaintiff s obstruction must be set aside and the status quo, as at the date of that order, must be restored, that is to say the plaintiff must be put back into possession (See AIR 1939 Bom. 508 and other cases). The obstructor has to begin and lead evidence to prove his right. The observation of our High Court that the auction purchaser cannot take advantage of the weaknesses of the claimant's case alone appears to be not a correct approach in proceedings under R.99.

The Applicant has to prove that he was in possession and was dispossessed in the course of delivery of possession to the decree holder or purchaser. The onus lies upon him to prove his right to possession and it is a serious irregularity to ask the decree holder or auction purchaser to begin (AIR 1931 Mad. 534).

It is submitted that even after amendment in 1976 there is no change of law regarding burden of proof in proceedings relating to obstruction to delivery of property and 1999 (1) KLT 278 places the auction purchasers at their peril.

The Dawn of the New Millennium

(By Siby Mathew, Advocate, Chief Editor, Kerala Law Times)

The 'New Millennium' or the New Year '2000' which everybody was awaiting for is here, 1999 has passed over with Economic Sanctions by developed countries, Parliamentary elections, Kargil, super cyclones and other turmoils. Present day Social Structure is experiencing the impact of dynamic and galvanic forces with the emergence of so called transitory and progressive programmes and plans. Familiar and time honoured ideas, theories and institutions are thrust into their places making India progress faster in the new Millennium. After effects of the economic sanctions, short Kargil Intrusions and super cyclone in Orissa hasn't retarded the progress of India. Redeeming feature is that 'India' stood as one and helped each other due to the spirit of tolerance and forbearance of the people of India. In the wake of socio-economic changes of the modern times, Judges and lawyers who have been respected and recognised as custodians of civilization have now a challenging and essential role to play in guiding the nation in the new Millennium.

Dawn of Independence was a tryst with destiny with our freedom fighters. Birth of the Constitution was a dream coming true for whom freedom was fought, as repression by British rulers led our people to cherish a desire to have a polity, where this would not happen, and Art.21 having stated: "No person shall be deprived of his life or personal liberty except according to procedure established by law", people of free India felt assured that days of repression were over - their lives and liberties would no longer be play-things of the rulers, and their co-citizens who would rule them henceforth would, in all strictness and situations, be able to take their lives and deprive them of the liberties only in accordance with the procedure permitted by law.

As free India moved forward, it was realised by the conscience-keepers of the nation that Art.21 has many promises to keep, and they sat down to work as custodians of the fundamental rights of the people to see how best the sharpest point of the trident built of Arts.20, 21 and 22, or the apex point of the golden triangle formed by Arts.14, 19 and 21, could be used to save the lives and liberties of persons residing in India from executive excess and how best they can enjoy dignified lives.

We are living today in a very difficult world. It is also not a safe world. We have to rely upon our own unity and strength. But as we look around us we find disunity growing, an increasing sense of disloyalty to our own cause. We hardly seem to realise that we have a destiny ahead of us which is greater than our great past. As a result power is changing hands so rapidly that there is no stability in political life. We are moving erratically, swayed to this side and mat. The Ship of State to be able to make a swift and steady journey to its destination needs to be kept on an even keel and its crew must know how to steer a true course. We seem to ignore the Constitution which must be our compass and instead of fixing our course by that compass we wish to fix the compass to the course.

In the great task of administering justice, the Bar and the Bench are complimentary and interdependent and share the common mission of securing justice to every citizen in the country and of creating a just society midst us. The Advocate pleads for right and against injustice. The Judge fulfills himself in the quest for truth and justice. Together the divine duet of doing justice is played.

In India, today Judges have not merely to adjudicate on rights and wrongs, but have to be sentinals on the qui vive. They face newer challenges, shoulder a vast range of responsibilities in upholding the constitution and the laws. For, Justice is an ampler, truine concept and the Rule of Law a more positive and dynamic idea with socio­economic content and political overtones not implied in them by orthodox jurists. Even Judges are not only deciding cases, as was said of Shelley, pose as beautiful angels, beating in the void their luminious wings in vain. The social goals enshrined in the Preamble to our Constitution, the Fundamental Rights chapter and the Directive Principles of State Policy broadly and vaguely project our current legal philosophy. The judicial organ being part of the State shares the national objective and perspective of political and economic democracy and spells out from the Articles of the Constitution and the Corpus juris of India, the legal framework of a secular society with egalitarian urges, thus departing from the old order and conservative common law concepts. The Judges and the Courts are in a sense, themselves on trial. The forensic institutions and the legal system itself need a new orientation, a modern grammar and vocabulary and simpler techniques of social engineering, if they are not to be accused of exotic expensive, obsolescent and tardy features, Judges should be sensitive to the demanding nature of the judicial process, which strikes at social evils, legislative transgressions and quasi judicial injustices. The magnitude of the danger to the Rule of Law is great in these days of self-righteous violence and mass violation of law where rioting is confused with revolution and organized disregard of law is considered the route to a higher form of democracy. An eye-for-an-eye as a means of Justice leaves Justice and everyone else blind in the end. This is inhuman. If law runs counter to life, you had better change the law, not challenge it. If the constitution hampers progress, you must amend it, not defy it nor deny it. That is the principle of democratic legality.

The lawyer is certainly the champion of his client,- and what client needs not a champion? But he is more than that. He is also a servitor in the Temple of Justice. There is nothing, no science or art, more concerned with human affairs than the law, and that is why an Advocate when devoting his life to the law should as enjoined by Lord Birkett, enlarge the sweep of his vision beyond the purely legal world, so that nothing that is human, or indeed, nothing that affects humanity should be to him common or unclean or unknown. He should also remember the words of Lord Kilmuir that the law to which he consecrates his life is not a venerable antique to betaken down, dusted, admired and put back on the shelf but an old and still vigorous tree firmly rooted in history, putting out new shoots, taking new grafts and from time to time dropping dead wood.

Justice cannot exist without the Law, and the law will not subsist without the Lawyer. And if the world is to continue to have men who, in the words of Justice Homer can live greatly in the law, drink the bitter cup of heroism and wear their hearts out after the unattainable, we must preserve the means of charging men with the spirit of our profession.

Law marches on and on with solemnity and dignity unaffected by controversies and conflicts and Kerala Law Times now enters the 51st year of Publication. We are fully aware that despite our limitations and short comings it was the generous support, valuable co-operation and cordial encouragement extended to us by the entire legal profession that enabled us to grow from progress to progress, from strength to strength and from size to size and we record our heartfelt sincere feelings of gratitude to one and all and request them to continue to extend the same support in future. Our good wishes for a blessed new Millennium. May it bring happiness, prosperity and good health to all and may India go from strength to strength through all of our dedicated efforts.