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MAHADEO

PRASAD SINGH & ANR.

v.

RAM LOCHAN & ORS.

'

September 16, 1980

[R. S. SARKARIA & R. S. PATHAK, JJ.]

Code of Civil Procedure-Section 42 as amended by U. P. Civil Laws

(Reform and Amendment) Act, 19:54-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 amend'"

ment A ct 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.

A decree, according to section 38 of the Code of Civil Procedure, may b~

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

decres

sent to it, shall have the same powers in executing such decree "as if it· had

been passed by itself." After lhe 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

rt decree from

the Court of Small Causes which on his application under section

39 of

the

Code, was transferred to the Comt 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. l 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 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 thi~ Judge, Small Causes Court was void and di<f

not invest the decree-holder-purchaser with any title.

. .It...

MAHADEO PRASAD V. RAM LOCHAN

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

sec·

tion 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 transfer·

red decrne 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 posi­

tion 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 limitation as to the mode in which the decree is to be executed.

1742G, 743A-B]

In the instant case, the 4ecree-holder's right, to make an

~pplication 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,

733

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734 SUPREME COURT REPORTS [1981] 1 S.C.R.

A refuse to transfer it to the Court of M unsif. 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]

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(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 imoairs

sub­

stantive rights acquired under the existing law is construed to have a prospec­

tive operation unless the language of that statute expressly or by inevitable

intendment compels a contrary construction. But this presumption

as to

pros­

pective operation of a statute does not apply to an enactment affecting proce-

dure

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 faw 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 pro­

vided by law, the decrne-holder is bound to proceed in execution according

to the altered procedure. [744A··B]

(b) The Amendment Aot XXIV of 1954 had· taken away the

power

of transferee Court to execute the transferred decree by

attach~

ment and sale of the immovabfo 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

bad no jurisdic­

tion to order sale of the immovable propert)i of the judgment-debtor. The

11ale 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]

Kira11 Singh v. Chaman Paswan, A.LR. 1954 S.C. 340 referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1'831 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 tihe High Court of Allahabad. It arises in these .-"(

circumstances :

H One Matadin, father of Ram Lochan, respondent 6 herein, was

a fixed rate tenant of the plots in dispute measuring 2. I I acres.

One Ram N aresh Singh ( cjeceased), brother or appellant 1 herein,

MAHAD£0 PRASAD v. RAM LOCHAN (Sarkaria, J.)

namely Mahadeo Prasad Singh, obtained a money decree against

Matadin on February

18, 1953 from the Judge, Small Cm1ses Court,

\varanasi m 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 decree­

holder-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 responden'ts 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 th~ present appellants,

for a declaration th~t he i~ 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

Singl:!

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 4 7 of the Code of Civ11 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 improve­

ments 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, in.fer alia, that 1t was barred by tb?.

73 !i

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principle of cons~ructive res judicata as also under Section 4 7 of H

the Code of

Civil Procedure;

th~t the Revenue Court had no

jurisdiction to entertain and try the suit; that the appellants 6 to

736 SUPREME COURT REPORTS [1981] 1 S.C.R.

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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 whkh be obtained delivery of possession in

executicn of his decree as auction-purchaser.

Aggrieved, the plaintiff (respondent

1) preferred an appeal to

the Court of the Additional Commissioner,

Varanasi, who by hi5

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 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

tlitle on him; that the judgment-debtor had no knowledge

about the execution procee:dings; that the suit property worth

Rs. 6,000 was for a very mieagre amount and the sale was vitiated

by fraud in publishing and conducting the saie.

·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

t.o the suit land in pursuance of the decree of the Judge, Small

Causes Court, was void and, as such, did not invesV the decree­

holder-purchaser with any title and consequently, the possession

of the appellant

was without

<iny 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.(

1

)

the learned Judge held

(1) A.I.R. 1968 .All. 312.

'

\,

MAHADEO PRASAD v. RAM LOCHAN (Sarkaria, J.)

•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 dt; 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 whi.ch was referred to a Full

.Bench of the High Court consisting of three learned Judges. The

two Judges, in majority, held that the SmaU Cause Court' had no

power to execute tihe 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 properLy; that the right

to execute a decree by attachment .and sale of immovable

property

is a matter of procedure,

while tJie 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 right of the appellant to execute· the· decree of the Small

1Causes 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

·~ubstantive right had accrued to Ram Naresh Singh on the passing

, -of t:he decree to execute it by attachment and sale of the immovable

property and that right was clearly saved to him

hy virtue of ·Section 3 of the Amendment Act. In accordance with the view

•·Of the majority, the appeal of respondent 1 was allowed and th~

tOrder of the learned Single Judge was set aside.

Hence this appeal by special leave by the appellants.

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738 SUPREME COURT REPORTS [1981} 1 S.C.R.

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appeal is whether the High

Coui:!t 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

1

and was put into execution after

the U.P. (Amendment) Act XXIV of 1954 had come into force.

I

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

Sma!I 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

application of the decree-holder, send it for

another Court of competant jurisdiction -

may, on the

execution to

(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

MAHADEO PRASAD v. RAM LOCHAN (Sarkai:ia, !.) 'i39

within the local limits of .tb.e jurisdiction of such other A

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

( d) if the court

which passed the decree considers

B·

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 P.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 w 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.

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The U.P. Act (No. XXIV of 1954) amended with effect from H

November 30, 1954, Section 42 of the Code. and after that amend-

ment sub-section

(1) of the Section read as under :

·

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SUPREME COURT REPORTS [1981) 1 S.C.R.

''The Court executing the decree sent to it shall have

. the same power in execu1ting 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 t].ie 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 co·

terminus 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 1ransferred 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 E. these terms : '

F

"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 frotn any debt, decree, liability, or any jurisdic­

tion 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

G the Indian Limitation

Act, 1908, or any other enactment

mentioned in column 2

of the schedule, the period of

Hmit11tion

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

fl 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

MAHADEO PRASAD v. RAM LOCHAN (Sarkaria, 1.) 741

which but for the amendment so made would have been A

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

staitutes. 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 restrospective,

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 susbtantive

·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 Aot.

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(

1

).

Rderence has also been made to a

Division Bench judgment of the Allahabad High Court in Suraj Bux

Singh v. "?adri Prasad(

2

).

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 was to proceed by an application

(1) A.LR. 1957 S.C. 540.

{l) A.J.R. 1968 All. 312.

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SUPREME COURT REPORTS [1981] 1 S.C.R.

un.der Section 4 7 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 ~vent, the present suit was barred by

Sect10n 47 of the Code.

It appears to us that none of these contentions stands a cl0se

examination.

It may be

noted that llhe 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 :

C "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 -

I

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sales without

D attachment of any property;

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( 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 bCJ

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 '~numerates 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.

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MAHADEO PRASAD v. RAM LOCHAN (Sarkar/a, J.) 743

We are one with the High Court {majority) that this phrase A

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 B

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 bis 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 againsJ

both the person and the property of the judgment-debtor is subject

to exercise by the Court of a judicial discr.etion vested in it under

Order 21, Rule 21, C.P.C.

We have already noticed, that under Section 39(1) (d), the

decree holder has no indefeasible, substantive right to get a decree

<>f 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 appli­

cation

:for transfer of his decree under section 3 9 ( 1) ( d)

is a mere procedural right. The Court of

Small Causes could in

its discretion, for reasons to

be recorded, refuse to

tra_nsfer 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 1the appellant.

As regards the second limb of the

issu,e, we find ourselves

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entirely in agreement with the High Court that

the provisions of H

Section 51 are merely procedural in character. A decree-holdei

gets a right ~o execute the decree only in accordance with the

744

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SUPREME COURT REPORTS [1981] 1 S.C.R.

procedure provided by law in force at the time when the executioir.

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 proceduw.

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 co-

terminus with that of the transferor Court which, in the instant . t

ca5e, 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.

Thal •

being the position, the Court of the Munsif to whom the decre1J

had also been transferred for execution, had also no jurisdiction to

order sale

of the

immovable property of the 1udgment-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 wa5 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. ChamaM

Paswan(I), ·" .. .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

(1) A. I. R

19S4 S. C. 340.

MAHADEO PRASAD v. RAM LOCHAN (Sarkaria, !.) >745

the High Court and have been rightly distinguished. We need not A

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 un­

amended 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.

6·-fi45 S. C. India/SO

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