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PETITIONER: MAHADEO PRASAD SINGH & ANR.

       Vs.

RESPONDENT: RAM LOCHAN & ORS.

DATE OF JUDGMENT16/09/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH PATHAK, R.S.

CITATION:  1981 AIR  416            1981 SCR  (1) 732  1980 SCC  (4) 354

ACT:      Code of  Civil Procedure-Section 42 as amended by U. P. Civil Laws. (Reform and Amendment) Act, 1954-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 amendment Act  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.

HEADNOTE:      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 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 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 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 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  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. 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

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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 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 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 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

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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 39(1)(d) 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]      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 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  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 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  v. Chaman  Paswan, A.I.R.  1954  S.C.  340 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: 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. 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 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 2.11 acres.  One Ram  Naresh Singh  (deceased),  brother  of appellant 1 herein,

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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 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 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 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  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 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

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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. 6,000  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 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. 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 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 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

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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 U.P.  (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 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 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:           "39(1).The 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                 (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 739           within the  local limits  of the  jurisdiction  of           such other 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

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              (d)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.           (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 U.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 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 U.P.  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   U.P.  Civil  Laws  (Reforms  and Amendment) Act,  saves certain  rights already  acquired  or accrued. It is in these terms:

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         "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      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.           (2)Where 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. 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 substantive  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 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 v. Subbiah Choudhry. Reference has also been made to a Division Bench judgment of the Allahabad High Court in Suraj Bux Singh v. 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

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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". (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. 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, 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),

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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-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 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 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".      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

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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. 746