Case: Mahadeo Prasad Singh &amp; Anr Vs. Ram Lochan &amp; Ors

terms while the conditions and limitations under which alone the respective mode s 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 125.24. 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), 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-holders right to make an application for transfer of his decree under section 39(1) (d) is a m ere 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.25. As regards the second limb of the issue, we find ourselves entirely in agreement with the High Court that the provisions o f 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 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.26. 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.27. 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.28. 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".29. Most of the rulings which have been cited in support of their alternative contention by the appellants , were also cited before the High Court and have been rightly distinguished. We need not go into the same.30. 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.31.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]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 th e 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 thatdealing 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 right s 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 theCode 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 MullasCode of Civil Procedure, 13th Edn. Vol. I, page 6, and 1958 S.C.R.Section "merely enumerates the different modes of execution in general terms while the conditions and limitations under which alone the respective mode s 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 Sectionare 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), 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-holders right to make an application for transfer of his decree under section 39(1) (d) is a m ere 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 theregards the second limb of the issue, we find ourselves entirely in agreement with the High Court that the provisions o f 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 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 alteredAmendment 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 theCode of Civil Procedure, does notis 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 settingof the rulings which have been cited in support of their alternative contention by the appellants , were also cited before the High Court and have been rightly distinguished. We need not go into thewe 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.