MAHADEO PRASAD SINGH & ANR. v. RAM LOCHAN & ORS (2)

Citation: [1981] 1 S.C.R. 732

Court: Supreme Court of India

Bench: R.S. SARKARIA, R.S. PATHAK

Case summary

One Matadin, father of Ram Lochan, respondent 6 herein, was a fixed rate tenant of the plots in dispute measuring 2. Aggrieved, the plaintiff (respondent 1) preferred an appeal to the Court of the Additional Commissioner, Varanasi, who by hi5 judgment dated December 28, 1965,...

Judgment text

7 32 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 a Court of Small Causes passed in his favour transferred to another Court. Cases are conceivable where the decree is of such a petty· amount that the Court of Small Causes thinks that . it can ·easily be executed by it by attachment and sale of the movable property of the judgment-debtor. In the instant case, also the decree was for a small amount of Rs. 300 and odd and. we understand ~ that the application for transfer was made under clause (d) of Section 39(1). Thus, the decree-holder's right to make an application :for transfer of his decree under section 39 (1) (d) is a mere procedural right. The Court of Small Causes could in its discretion, for reasons to be recorded, refuse to 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 entirely in agreement with the High Court that the provisions of Section 51 are merely procedural in character. A decree-holdei gets a right ~o execute the decree only in accordance with the 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 coterminus 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 go into the same. ~ Before we part with the judgment, we may, however, note that the amendment made by the U. P. (Act XXIV) of 1954 was deleted by another U. P. (Amendment) Act XIV of 1970, and the unamended sub-section (1) of Section 42, as it existed before the amendment of 1954, was revived. But, this Amendment Act (XIV of 1970) was not given retrospective operation. It did not affect the previous operation of the Amendment Act XXIV of 1954 or anything suffered or done thereunder. For the foregoing reasons, we uphold the impugned judgment and dismiss this appeal. In view of the law point involved, we . leave the parties to pay and bear their own costs. P. B. R. Appeal dismissed. 6·-fi45 S. C. India/SO