Holding

The decree‑holder had no substantive right to transfer the decree, and the 1954 amendment of Section 42 CPC rendered the Munsif Court’s power to sell immovable property void, making the execution sale a nullity.

Summary

The appellant obtained a money decree from the Small Causes Court in 1953 and, under Section 39(1)(d) CPC, had it transferred to the Munsif Court for execution. The Munsif Court sold the immovable property in execution of the decree, and the purchaser later sold it to the respondents. The respondents challenged the sale, arguing that the Small Causes Court lacked power to execute by sale of immovable property and that, after the 1954 amendment of Section 42 CPC, the transferee court’s powers were limited to those of the transferor court. The Supreme Court held that the decree‑holder had no substantive right to compel transfer of the decree, that the 1954 amendment made the transferee court’s powers co‑terminus with the Small Causes Court (which could not sell immovable property), and therefore the execution sale was void. The appeal was dismissed.

Issues considered

Whether a decree‑holder has a substantive right to obtain transfer of a decree to another court under Section 39(1)(d) CPC.
Whether the 1954 amendment of Section 42 CPC applies retrospectively to a decree passed before its commencement.
Whether the Munsif Court had jurisdiction to execute the decree by attachment and sale of immovable property.
Whether the suit filed by the respondent is barred by Section 47 CPC or by the principle of res judicata.

Legislation cited

Code of Civil Procedures. 38, s. 39, s. 42, s. 47, s. 51, s. 60, s. Order 21 Rule 30, s. Order 21 Rule 82
Limitation Act, 1908s. Article 181
Transfer of Property Acts. 41, s. 51
U.P. Civil Laws (Amendment) Act, 1970
U.P. Civil Laws (Reform and Amendment) Act, 1954
U.P. Zamindari Abolition and Land Reforms Acts. 209, s. 229B

Subjects

decree transferexecution of decreeSection 42 CPCretrospective amendmentjurisdictionvoid saleprocedural rightsubstantive rightSection 39 CPCSection 51 CPCSection 47 CPCres judicata

Judgment

7 32

A

MAHADEO PRASAD SINGH & ANR.

v.
B
RAM LOCHAN & ORS.
' September 16, 1980

[R. S. SARKARIA & R. S. PATHAK, JJ.]
c
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.
D
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
E 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
F 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
G 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,
H 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.
MAHADEO PRASAD V. RAM LOCHAN 733

On the appellant's writ petition a single Judge of the High Court quashed A
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
..It...
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· B
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.
c
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 D
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 E
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 F
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 G
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
H
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 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]
(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
B 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
c 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
D 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
E 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
F 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.
G
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.) 73 !i

namely Mahadeo Prasad Singh, obtained a money decree against A
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 B
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.
c
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, D
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
E
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. F
inter alia on the ground that the suit was barred as res judicata and
also under section 47 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
G
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?.
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.

A 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
B 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
c 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
D 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
E
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-
F 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
G 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
H 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.) 731

•that the execution; sale of the suit land was proper as per the A
;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 B
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 c
.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 D
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 G
·~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~
H
tOrder of the learned Single Judge was set aside.
Hence this appeal by special leave by the appellants.
738 SUPREME COURT REPORTS [1981} 1 S.C.R.

A. Thus, the principal question that falls to b~ considered in . th is
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
B 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
1
Munsif on January 24, 1955 and was put into execution after
the U.P. (Amendment) Act XXIV of 1954 I had come into force.
This sale in favour of the decree-holder himself took place on
c 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
D
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,
E 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
F 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
G another Court of competant 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
H (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) ........................ "
c
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
E,
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 :
F
"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 G
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 H
November 30, 1954, Section 42 of the Code. and after that amend-
ment sub-section (1) of the Section read as under : ·
740 SUPREME COURT REPORTS [1981) 1 S.C.R.

A ''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
B 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
c 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
D 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 : '
"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-
F 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
c
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- D
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. · E

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. F
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 G
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
H
(1) A.LR. 1957 S.C. 540.
{l) A.J.R. 1968 All. 312.
142 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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
B 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;
( c) ........................... .
( d) by appointing a receiver; or
( e) in such other manner as the nature of the relief
granted may require :
E
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
F 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
G 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
H 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.

I
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 c
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. D

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
E
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
F
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
G
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
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 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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.
B 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
ca5e, was the Small Cause Court and in view of the prohibition
. t
c 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
D '
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
E
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
F 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
G 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
H 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-
B
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.
c
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.

D

P.B.R. Appeal dismissed.

6·-fi45 S. C. India/SO