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 45369
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 211 acres
One Ram Naresh Singh deceased brother of appellant 1 herein 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 ie 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 345 of the UP Land Reforms Act and that Ram Naresh Singh had been in possession since March 14 1967 ie 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 UP 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 title on him that the judgment debtor had no knowledge about the execution proceedings that the suit property worth Rs 6000 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 UP 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 vs 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 UP by the UP 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 ie 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 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 UP 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 UP 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 391The 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 bif 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 cif 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 dif 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
2The 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 UP 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 UP 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 UP Civil Laws Reforms and Amendment Act saves certain rights already acquired or accrued
It is in these terms 31Any 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
2Where 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
I page 6 and 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 UP Amendment Act XXIV of 1954 and as such it was saved by Section 31 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 vs Subbiah Choudhry
Reference has also been made to a Division Bench judgment of the Allahabad High Court in Suraj Bux Singh vs 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 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
IR 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 216 of the Code to mean prescribed by rules and rules under Section 218 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 CPC 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 CPC We have already noticed that under Section 391 d 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 391
Thus the decree holder s right to make an application for transfer of his decree under section 391 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 744 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 vs 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 745 the High Court and have been rightly distinguished
We need not go into the same
Before we part with the judgment we may however note that the amendment made by the UP Act XXIV of 1954 was deleted by another UP 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
PBR Appeal dismissed


Summary:
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 391d 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 UP 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 UP 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 court had no jurisdiction to sell the suit land under section 42 of the CPC 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 CPC 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 391d 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 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 391d 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 2a 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 CPC 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 vs Chaman Paswan  referred to