Full Judgment Text
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PETITIONER:
MAHADEO PRASAD SINGH & ANR.
Vs.
RESPONDENT:
RAM LOCHAN & ORS.
DATE OF JUDGMENT16/09/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION:
1981 AIR 416 1981 SCR (1) 732
1980 SCC (4) 354
ACT:
Code of Civil Procedure-Section 42 as amended by U. P.
Civil Laws. (Reform and Amendment) Act, 1954-For executing a
decree transferee court "shall have the same powers as the
court which passed it"-Decree passed by Court of Small
Causes transferred to Munsif for execution after the
amendment Act came into force-Decree-holder, if could be
said to have had a substantive right to get the decree
transferred to the Munsif’s court for execution.
HEADNOTE:
A decree, according to section 38 of the Code of Civil
Procedure, may be executed either by the Court which passed
it or by the Court to which it is sent for execution.
Section 39(1)(d) provides that the Court which passed a
decree may, on the application of the decree-holder, send it
for execution to another Court of competent jurisdiction, if
the Court, which passed the decree, considers for any other
reason, which it shall record in writing, that the decree
should be executed by such other Court. Section 42 of the
Code, which indicates the powers of the transferee Court for
executing the transferred decree, before its amendment in
1954, provided that the Court executing the decree sent to
it, shall have the same powers in executing such decree "as
if it had been passed by itself." After the amendment the
words "as the Court which has passed it" were substituted
for the words "as if it has been passed by itself". Section
3 of the U.P. Civil Laws (Reform and Amendment) Act saved
certain rights already acquired or accrued.
In February, 1953 the brother of appellant No. 1
obtained a decree from the Court of Small Causes which on
his application under section 39 of the Code, was
transferred to the Court of Munsif in January, 1955 and put
into execution after the U.P. (Amendment) Act XXIV of 1954
had come into force. In the sale the decree-holder himself
purchased the land in July, 1956 and took possession of the
property. He later sold the property to defendant nos. 2 to
5.
The suit of respondent no. 1 for a declaration that the
sale in favour of appellant no. 1 was without jurisdiction
and therefore a nullity was dismissed by the trial Court. On
appeal the Additional Commissioner held that the executing
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court had no jurisdiction to sell the suit land under
section 42 of the C.P.C. as amended by the U. P. Civil Laws
(Amendment) Act, 1954 Dismissing the appeal, the Board of
Revenue held that the auction sale in pursuance of the
decree of the Judge, Small Causes Court was void and did not
invest the decree-holder-purchaser with any title.
733
On the appellant’s writ petition a single Judge of the
High Court quashed the judgment of the Revenue Board as
well as of the Additional Commissioner holding that the
execution sale of the land was proper under section 42 of
the Code, that prior to its amendment by the U. P. Civil
Laws (Amendment) Act, 1954, the executing court had the same
powers in relation to execution as it would have had if the
decree had been passed by itself and the decree having been
passed prior to the amendment of section 42 this section did
not apply and the decree should have been executed in
accordance with the provisions of section 42 prior to its
amendment.
On appeal a Full Bench of the High Court (by majority)
held that since the Small Causes Court had no power to
execute the decree by attachment and sale of immovable
property, the Munsif’s Court to which the decree was
transferred for execution, possessing the same powers as the
Small Causes Court, had no jurisdiction to execute the
decree by attachment and sale of the immovable property.
It was contended before this Court on behalf of the
decree-holder that he had acquired a substantive right to
get the decree of the Court of Small Causes transferred to
the Court of Munsif for execution and thereafter to have it
executed by the transferee court in any of the modes
provided in section 51 C.P.C. and this two-fold substantive
right having accrued to him before the coming into force of
the 1954 Amendment, it was saved by section 3 of this
Amendment Act.
Dismissing the appeal,
^
HELD: 1 (a) Under section 39(1)(d) a decree holder has
no indefeasible substantive right to get his application for
transfer of a decree to another Court ipso facto accepted by
the Court which passed it, particularly in a case which is
not covered by clauses (a), (b) & (c) of that sub-section.
The effect of substitution of the words "as the court which
passed it" for the words "as if it had been passed by
itself" was that powers of the transferee Court in executing
the transferred decree became co-terminus with the powers of
the Court, which passed it. Therefore, if the power of the
transferor Court to execute its own decree were in any
respect restricted, the same restriction would attach to the
powers of the transferee Court in executing the transferred
decree notwithstanding the position that the powers of the
transferee Court in executing its own decree were not so
restricted. [739E; 740C-D]
(b) The opening words of section 51 (subject to such
conditions and limitations as may be prescribed) put it
beyond doubt that there is no wide or unrestricted
jurisdiction to order execution or to claim execution in
every case in all the modes indicated therein. The High
Court (per majority) was right in construing it to mean that
the powers of the executing court under this section are not
subject to the other conditions and limitations enacted in
the other sections of the Code. Although ordinarily a
decree-holder has an option to choose any particular mode
for execution of his money decree it may not be correct to
say that the Court has absolutely no discretion to place any
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limitation as to the mode in which the decree is to be
executed. [742G, 743A-B]
In the instant case, the decree-holder’s right to make
an application for transfer of his decree under section
39(1)(d) is a mere procedural right. The Court of Small
Causes could, in its discretion for reasons to be recorded,
734
refuse to transfer it to the Court of Munsif. In other words
the decree-holder had no vested or substantive right to get
the decree transferred to the Court of the Munsif for
execution. [743F-G]
(c) The well settled principle in regard to the
retrospective operation of statutes is that as a general
rule, a statute which takes away or impairs substantive
rights acquired under the existing law is construed to have
a prospective operation unless the language of that statute
expressly or by inevitable intendment compels a contrary
construction. But this presumption as to prospective
operation of a statute does not apply to an enactment
affecting procedure or practice such as the Code of Civil
Procedure because no person has a vested right in any course
of procedure. [741 B-C]
2.(a) The High Court was right in holding that the
provisions of section 51 are merely procedural in character.
A decree-holder gets a right to execute the decree only in
accordance with the procedure provided by the law in force
at the time when execution is sought. If a mode of procedure
different from the one which obtained at the date of passing
of the decree has been provided by law, the decree-holder is
bound to proceed in execution according to the altered
procedure. [744A-B]
(b) The Amendment Act XXIV of 1954 had taken away the
power of transferee Court to execute the transferred decree
by attachment and sale of the immovable property by making
it co-terminus with that of the transferor Court (the Small
Cause Court) and in view of the prohibition contained in
Order 21 Rule 82 C.P.C. it had no power to execute its
decree by sale of immovable property. That being the
position, the Court of the Munsif to which the decree had
been transferred for execution had no jurisdiction to order
sale of the immovable property of the judgment-debtor. The
sale ordered by the Munsif in execution of the decree of the
Court of Small Causes transferred to him was, therefore,
wholly without jurisdiction and a nullity. [744 B-D]
Kiran Singh v. Chaman Paswan, A.I.R. 1954 S.C. 340
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1831 of
1973.
Appeal by Special Leave from the Judgment and Order
dated 4-5-1970 of the Allahabad High Court in Spl. Appeal
No. 453/69.
B. P. Maheshwari and Suresh Sethi for the Appellants.
Ex-Parte for the Respondents.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal is directed against a
judgment, dated May 4, 1970, of the High Court of Allahabad.
It arises in these circumstances:
One Matadin, father of Ram Lochan, respondent 6 herein,
was a fixed rate tenant of the plots in dispute measuring
2.11 acres. One Ram Naresh Singh (deceased), brother of
appellant 1 herein,
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735
namely Mahadeo Prasad Singh, obtained a money decree against
Matadin on February 18, 1953 from the Judge, Small Causes
Court, Varanasi suit No. 847 of 1953. Ram Naresh Singh
sought to execute the decree. As a consequence, the decree
was transferred from the Court of the Judge of Small Causes
to the Court of Munsif, Varanasi, for execution. The plots
in dispute were put to auction by the executing court, and
were purchased by the decree-holder on July 20, 1956. The
sale was confirmed on August 29, 1956 and the sale
certificate was issued on September 8, 1956. The
decreeholder-purchaser, Ram Naresh Singh, took delivery of
possession over these plots on March 14, 1957. Thereafter,
he further sold the plots to appellant 2 and respondents 6
to 10.
Matadin, however, died sometime in 1960. Thereafter his
son Ram Lochan respondent 1, herein, instituted a suit on
June 14, 1961 i.e. more than three years after the delivery
of possession to the decree-holder-purchaser, Ram Naresh
Singh, under section 229B read with Section 209 of the U. P.
Zamindari Abolition and Land Reforms Act in the Revenue
court against the present appellants, for a declaration that
he is in possession of the suit land as Bhoomidar. In the
alternative, he claimed the relief of possession on the same
basis. He pleaded that his father, Ram Naresh Singh was the
original Bhoomidar and remained in possession of the suit
land till his death and thereafter, the plaintiff as the
heir of the deceased continue in possession as Bhoomidar. He
further alleged that the sale in favour of Ram Naresh Singh
was without jurisdiction and a nullity; as it had been made
without the knowledge of or notice to his father.
The suit was resisted by the appellant, who is original
defendant 1, and respondents 7 to 10, who are original
defendants 2 to 5, inter alia on the ground that the suit
was barred as res judicata and also under section 47 of the
Code of Civil Procedure, and Article 181 of the Limitation
Act. Defendants 2 to 5 further pleaded that they were bona
fide purchasers for value and, therefore, their rights in
the suit land were protected under Section 41 of the
Transfer of Property Act. They also, alleged that they had
made improvements on the suit land and were entitled to the
benefit of Section 51 of the Transfer of Property Act.
The trial court, by its judgment, dated August 30,
1965. dismissed the suit, holding, inter alia, that It was
barred by the principle of constructive res judicata as also
under Section 47 of the Code of Civil- Procedure; that the
Revenue Court had no jurisdiction to entertain and try the
suit; that the appellants 6 to
736
10 were bona fide purchasers for value and, as such, were
entitled to the benefit of Sections 41 and 51 of the
Transfer of Property Act; that the suit was barred by
Article 181 of the Limitation Act, 1908 as well as by
Section 34(5) of the U.P. Land Reforms Act; and that Ram
Naresh Singh had been in possession since March 14, 1967,
i.e., the date on which he obtained delivery of possession
in execution of his decree as auction-purchaser.
Aggrieved, the plaintiff (respondent 1) preferred an
appeal to the Court of the Additional Commissioner,
Varanasi, who by his judgment dated December 28, 1965,
allowed the appeal and held that the executing court had no
jurisdiction to sell the suit land under Section 42 of the
Code of Civil Procedure, as amended by the U.P. Civil Laws
(Amendment) Act. 1954 and that the suit was not barred as
res judicata or under Section 47 of the Code of Civil
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Procedure. The Additional Commissioner further held that the
possession of Ram Naresh Singh was unlawful as it was on the
basis of the void sale, dated March 4, 1960, which could not
confer any title on him; that the judgment-debtor had no
knowledge about the execution proceedings; that the suit
property worth Rs. 6,000 was for a very meagre amount and
the sale was vitiated by fraud in publishing and conducting
the sale.
Ram Lochan and Ram Naresh Singh carried a second appeal
against the decision to the Board of Revenue. During the
pendency of that second appeal, Ram Naresh Singh died and
Mahadeo Prasad Singh, appellant 1, was substituted in his
place. The Board dismissed the appeal on the ground that the
auction sale with regard to the suit land in pursuance of
the decree of the Judge, Small Causes Court, was void and,
as such, did not invest the decree-holder-purchaser with any
title and consequently, the possession of the appellant was
without any title. The Board further held that the auction
sale did not affect the suit under Section 209 of the U.P.
Zamindari Abolition and the Land Reforms Act.
To impugn the judgment of the Board, Mahadeo Prasad
Singh, appellant herein, as well as respondents 6 to 10
filed a writ petition under Article 226 of the Constitution
in the High Court of Allahabad. A learned Single Judge, who
heard the writ petition, allowed it by his judgment, dated
April 23, 1969, and quashed the judgments of the Board of
Revenue as well as of the Additional Commissioner, who are
respondents 2 and 3 herein. Following an earlier judgment of
a Division Bench of the same Court in Suraj Bux Singh v.
Badri Prasad & Anr. the learned Judge held
737
that the execution sale of the suit land was proper as per
the provisions of Section 42 of the Code of Civil Procedure;
that prior to its amendment in U.P. by the U.P. Civil Laws
(Amendment) Act 1954, the executing court had the same
powers in relation to execution as it would have had if the
decree had been passed by itself; that the decree in the
present suit was passed on February 18, 1953, i.e. prior to
the coming into force of the Amendment Act of 1954 and, as
such, the amended Section 42 did not apply to it; and that
the decree having been passed prior to the date of the
amendment, should be executed in accordance with the
provisions of Section 42 as it stood prior to its amendment;
and that as a result, the suit for declaration as well as
for possession would have to fail. The learned Single Judge
did not go into the question as to whether the suit was
barred by Section 47 of the Code of Civil Procedure.
Against the judgment of the learned Single Judge,
respondent 1, herein, preferred a Special Appeal which was
referred to a Full Bench of the High Court consisting of
three learned Judges. The two Judges, in majority, held that
the Small Cause Court had no power to execute the decree by
attachment and sale of immovable property; that the
transferee court, namely, the court of the Munsif had the
same powers as that of the Small Cause Court and, therefore,
that court also had no jurisdiction to execute the decree by
attachment and sale of the immovable property; that the
right to execute a decree by attachment and sale of
immovable property is a matter of procedure, while the right
to realise the decretal amount by attachment and sale is a
substantive right of the decree-holder, that the date on
which the decree was put into execution, the amendment of
Section 42 had already come into force and the power of the
transferee court had become co-terminus with that of the
transferor court; and that the amendment did not save the
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right of the appellant to execute the decree of the Small
Causes Court by attachment and sale of immovable property.
Sinha, J. however, dissented. He took the view that the
Amendment Act did not apply to the present suit and that a
substantive right had accrued to Ram Naresh Singh on the
passing of the decree to execute it by attachment and sale
of the immovable property and that right was clearly saved
to him by virtue of Section 3 of the Amendment Act. In
accordance with the view of the majority, the appeal of
respondent 1 was allowed and the Order of the learned Single
Judge was set aside.
Hence this appeal by special leave by the appellants.
738
Thus, the principal question that falls to be
considered in this appeal is whether the High Court was
right in holding that the execution sale of the land in
dispute was totally without jurisdiction and null and void.
Some relevant dates may be noted. Ram Naresh obtained
the decree from the Court of Small Causes on February 18,
1953. On the decree-holder’s application under Section 39 of
the Code of Civil Procedure, the decree was transferred to
the Court of the Munsif on January 24, 1955 and was put into
execution after the U.P. (Amendment) Act XXIV of 1954 had
come into force. This sale in favour of the decree-holder
himself took place on July 20, 1956. It was confirmed on
August 29, 1956 and the sale certificate was issued to the
purchaser on September 8, 1956. The auction-purchaser took
delivery of possession as per Dakhalnama on March 24, 1957.
The decree-holder-purchaser further sold the plots in
dispute to defendants 2 to 5.
Next, at this stage, the relevant provisions of the
Code of Civil Procedure and the U.P. Civil Laws (Reforms and
Amendment) Act (Act No. XXIV of 1954) may be noticed.
Section 38 of the Code of Civil Procedure provides that
"a decree may be executed either by the Court which passed
it or by the Court to which it is sent for execution". In
the instant case, as already seen, the decree was passed by
the Small Cause Court which was competent to execute it, but
(in view of Order 21, Rule 82 of the Code) not by attachment
and sale of the immovable property of the judgment-debtor.
That is to say, that Court could execute it by attachment
and sale of the movable property of the judgment-debtor, if
it was, of course, not exempt under Section 60 of the Code
of Civil Procedure or under any other law.
Section 39 of the Code deals with transfer of decree.
Its material part reads thus:
"39(1).The Court which passed a decree may, on the
application of the decree-holder, send it for execution
to another Court of competent jurisdiction-
(a) if the person against whom the decree is
passed actually and voluntarily resides or carries
on business, or personally works for gain, within
the local limits of the jurisdiction of such other
Court, or
(b)if such person has not property within
the local limits of the jurisdiction of the Court
which passed the decree sufficient to satisfy such
decree and has property
739
within the local limits of the jurisdiction of
such other Court, or
(c)if the decree directs the sale or delivery
of immovable property situate outside the local
limits of the jurisdiction of the Court which
passed it, or
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(d)if the court which passed the decree
considers for any other reason, which it shall
record in writing, that the decree should be
executed by such other Court.
(2)The Court which passed a decree may of its own
motion send it for execution to any subordinate Court
of competent jurisdiction.
(3) .............................."
In the instant case, the decree was transferred under
clause (d) of sub-section (1) of Section 39. Unlike the
other clauses (a) to (c) of the sub-section, it seems that
under clause (d), the Court has a rational discretion to
transfer or not to transfer the decree passed by it. This is
apparent from the word "may" used in the opening part of
sub-section (1), and the requirement of recording reasons
for the transfer under clause (d). It follows therefore,
that under Section 39 (1) a decree-holder has no
indefeasible right to get his application for transfer of
decree to another Court ipso facto accepted by the Court
which passed it, particularly in a case which is not covered
by clauses (a), (b) and (c) of that sub-section.
Section 42 of the Code indicates the powers of the
transferee court for executing a transferred decree. The
material part of this section, prior to its amendment by the
U.P. Act (No. XXIV) of 1954, reads as under:
"The Court executing a decree sent to it shall
have the same powers in executing such decree as if it
had been passed by itself. All persons disobeying or
obstructing the execution of the decree shall be
punishable by such Court in the same manner as if it
had passed the decree. And its order in executing such
decree shall be subject to the same rules in respect of
appeal as if the decree had been passed by itself.".
(emphasis added)
The provisions in sub-sections (2), (3) and (4) of the
Section are not relevant for our purpose.
The U.P. Act (No. XXIV of 1954) amended with effect
from November 30, 1954, Section 42 of the Code, and after
that amendment sub-section (1) of the Section read as under:
740
"The Court executing the decree sent to it shall
have the same power in executing such decree as if it
had been passed by itself. All persons disobeying or
obstructing the execution of decree shall be punished
by such Court in the same manner as if it had passed
the decree and its order in executing such decree shall
be subject to the same rules in respect of appeal as if
the decree had been passed by itself."
(emphasis added)
Thus, for the words "as if it had been passed by itself"
occurring in the first sentence of sub-section (1) of
Section 42, the Amending Act 24 of 1954 substituted the
words "as the Court which passed it". The effect of such
substitution was that the powers of the transferee Court in
executing the transferred decree became coterminous with the
powers of the Court which had passed it. The result was that
if the power of the transferor Court to execute its own
decree were in any respect restricted, the same restriction
would attach to the powers of the transferee Court in
executing the transferred decree, notwithstanding the
position that the powers of the transferee Court in
executing its own decree were not so restricted.
Section 3 of the U.P. Civil Laws (Reforms and
Amendment) Act, saves certain rights already acquired or
accrued. It is in these terms:
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"3(1)Any amendment made by this Act shall not
affect the validity, invalidity, effect or consequence
of anything already done or suffered, or any right,
title, obligation or liability already acquired,
accrued or incurred or any release or discharge of or
from any debt, decree, liability, or any jurisdiction
already exercised, and any proceeding instituted or
commenced in any Court prior to the commencement of
this Act shall, notwithstanding any amendment herein
made, continue to be heard and decided by such Court.
(2)Where by reason of any amendment herein made in
the Indian Limitation Act, 1908, or any other enactment
mentioned in column 2 of the schedule, the period of
limitation prescribed for any suit or appeal has been
modified or a different period of limitation will
hereafter govern any such suit or appeal, then,
notwithstanding any amendment so made or the fact that
the suit or appeal would now lie in a different Court,
the period of limitation applicable to a suit or
appeal, as aforesaid, in which time has begun to run
before the commencement of this Act, shall continue to
be the period
741
which but for the amendment so made would have been
available.
Before dealing with the contentions canvassed, we may
remind ourselves of some well-known principles of
interpretation in regard to the retrospective operation of
statutes. As a general rule, a statute which takes away or
impairs substantive rights acquired under the existing law
is construed to have a prospective operation unless the
language of that statute expressly or by inevitable
intendment compels a contrary construction. But this
presumption as to prospective operation of a statute does
not apply to an enactment affecting procedure or practice
such as the Code of Civil Procedure. The reason is that no
person has a vested right in any course of procedure. "The
general principle indeed seems to be that alterations in the
procedure are always retrospective, unless there be some
good reason against it". (See Mulla’s Code of Civil
Procedure, 13th Edn. Vol. I, page 6, and 1958 S.C.R. 919).
In the light of the above principles, the question
posed for our decision, resolves itself into the two-fold
issue : whether the decree-holder had acquired a substantive
right (a) to get the decree passed by the Court of Small
Causes, transferred to the Court of the Munsif and (b)
thereafter to have is executed by the transferee Court in
any of the modes provided in Section 51 of the Code of Civil
Procedure, including the mode by attachment and sale of the
immovable property of the judgment-debtor.
As before the High Court, here also, it is contended on
behalf of the decree-holder that he had acquired this two-
fold substantive right before the coming into force of the
U.P. (Amendment Act XXIV) of 1954, and, as such, it was
saved by Section 3(1) of this Amendment Act.
It is maintained that the two-fold right aforesaid is a
substantive right and not merely a matter of procedure.
Support for this argument has been sought from a decision of
this Court in Garikapati v. Subbiah Choudhry. Reference has
also been made to a Division Bench judgment of the Allahabad
High Court in Suraj Bux Singh v. Badri Prasad.
In the alternative, it is submitted that assuming the
sale was without jurisdiction, then also, that question
would relate to the execution, discharge or satisfaction of
the decree and, as such, the remedy of the judgment-debtor
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was to proceed by an application
742
under Section 47 of the Code of Civil Procedure and not by a
suit as has been done by the plaintiff in the instant case.
In short, the argument is that in any event, the present
suit was barred by Section 47 of the Code.
It appears to us that none of these contentions stands
a close examination.
It may be noted that the fasciculus of Sections 51 to
54 of the Code of Civil Procedure appear under the heading
"PROCEDURE IN EXECUTION". Section 51 is captioned-"Powers of
Court to enforce execution". It reads thus :
"Subject to such conditions and limitations as may
be prescribed, the Court may, on the application of the
decree-holder, order execution of the decree-
(a) by delivery of any property specifically
decreed;
(b) by attachment and sale or by sales
without attachment of any property;
(c) .........................................
(d) by appointing a receiver; or
(e) in such other manner as the nature of the
relief granted may require :
Provided that, where the decree is for the
payment of money, execution by detention in prison
shall not be ordered unless, after giving the
judgment-debtor an opportunity of showing cause
why he should not be committed to prison, the
Court, for reasons recorded in writing, is
satisfied................."
This Section "merely enumerates the different modes of
execution in general terms while the conditions and
limitations under which alone the respective modes can be
availed of are prescribed further on by different
provisions". (See.... I.R. Commentaries Vol. I, 9th Edn. p.
863). The opening words of the Section "Subject to such
conditions and limitations as may be prescribed" put it
beyond doubt that there is no wide or unrestricted
jurisdiction to order execution or to claim execution in
every case in all the modes indicated therein. ’Prescribed’
has been defined in Section 2(16) of the Code to mean
"prescribed by rules", and "rules", under Section 2(18)
means "rules and forms" contained in the First Schedule of
the Code or framed by the respective superior Courts in
different States under Section 122 or Section 125.
743
We are one with the High Court (majority) that this
phrase cannot be construed to mean that the powers of the
executing Court under this Section are not subject to the
other conditions and limitations enacted in the other
sections of the Code. For instance, the mode, (b), by
attachment and sale of the property of the judgment-debtor,
may not be available in respect of property which falls
within the exemption of section 60 of the Code. Although
ordinarily the decree-holder has an option to choose any
particular mode for execution of his money-decree, it will
not be correct to say that the Court has absolutely no
discretion to place any limitation as to the mode in which
the decree is to be executed. The option of the judgment-
debtor, for instance, to apply under Order 21. Rule 30,
C.P.C. for execution of a decree simultaneously against both
the person and the property of the judgment-debtor is
subject to exercise by the Court of a judicial discretion
vested in it under Order 21, Rule 21, C.P.C.
We have already noticed, that under Section 39(1) (d),
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the decree holder has no indefeasible, substantive right to
get a decree of a Court of Small Causes passed in his favour
transferred to another Court. Cases are conceivable where
the decree is of such a petty amount that the Court of Small
Causes thinks that it can easily be executed by it by
attachment and sale of the movable property of the judgment-
debtor. In the instant case, also the decree was for a small
amount of Rs. 300 and odd and we understand that the
application for transfer was made under clause (d) of
Section 39(1). Thus, the decree-holder’s right to make an
application for transfer of his decree under section 39(1)
(d) is a mere procedural right. The Court of Small Causes
could in its discretion, for reasons to be recorded, refuse
to transfer it to the Court of the Munsif. In other words,
the decree-holder had no vested or substantive right to get
the decree transferred to the Court of the Munsif for
execution. The first limb of the issue is therefore answered
against the appellant.
As regards the second limb of the issue, we find
ourselves entirely in agreement with the High Court that the
provisions of Section 51 are merely procedural in character.
A decree-holder gets a right to execute the decree only in
accordance with the
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procedure provided by law in force at the time when the
execution is sought. If a mode of procedure different from
the one which obtained at the date of the passing of the
decree, has been provided by law, the decree-holder is bound
to proceed in execution according to the altered procedure.
The Amendment Act XXIV of 1954 had taken away the power
of the transferee court to execute the transferred decree by
attachment and sale of the immovable property by making it
coterminous with that of the transferor Court which, in the
instant case, was the Small Cause Court and in view of the
prohibition contained in Order 21, Rule 82, Code of Civil
Procedure, had no power to execute its decree by sale of
immovable property. That being the position, the Court of
the Munsif to whom the decree had also been transferred for
execution, had also no jurisdiction to order sale of the
immovable property of the judgment-debtor. Thus considered,
the sale of the immovable property ordered by the Munsif in
execution of the decree of the Court of Small Causes
transferred to him, was wholly without jurisdiction and a
nullity.
Once we come to the conclusion that the sale in
question was totally null and void, the alternative
contention of the appellants with regard to the suit being
barred by Section 47 of the Code of Civil Procedure, does
not survive.
This is not a case of an irregular or voidable sale
which continues to subsist so long as it is not set aside,
but of a sale which was entirely without jurisdiction. It
was non est in the eye of law. Such a nullity does not from
its very nature, need setting aside.
As pointed out by this Court in Kiran Singh v. Chaman
Paswan, "...it is a fundamental principle, well established
that a decree passed by a Court without jurisdiction, is a
nullity; and that its invalidity could be set up whenever it
is sought to be enforced or relied upon, even at the stage
of execution, and even in collateral proceedings".
Most of the rulings which have been cited in support of
their alternative contention by the appellants, were also
cited before
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the High Court and have been rightly distinguished. We need
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not go into the same.
Before we part with the judgment, we may, however, note
that the amendment made by the U.P. (Act XXIV) of 1954 was
deleted by another U.P. (Amendment) Act XIV of 1970, and the
unamended sub-section (1) of Section 42, as it existed
before the amendment of 1954, was revived. But, this
Amendment Act (XIV of 1970) was not given retrospective
operation. It did not affect the previous operation of the
Amendment Act XXIV of 1954 or anything suffered or done
thereunder.
For the foregoing reasons, we uphold the impugned
judgment and dismiss this appeal. In view of the law point
involved, we leave the parties to pay and bear their own
costs.
P.B.R. Appeal dismissed.
746