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TMI Blog1980 (9) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 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 respondents 6 to 10. 3. 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. 4. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 8. 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 and Anr. AIR1968All153 the learned Judge held that the execution sale of the suit land was proper as per the provisions of Section 42 of the CPC; that prior to its amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Hence this appeal by special leave by the appellants. 12. 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. 13. 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 CPC, 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. 14. Next, at this stage, the relevant provisions of the CPC and the U.P. Civil Laws (Reforms and Amendment) Act (Act No. XXIV of 1954) may be noticed. 15. Section 38 of the CPC provides that a decree may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that sub-section. 18. 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. 19. 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 : 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CPC. 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 CPC, 13th Edn. Vol. I, page 6, and 1958 S.C.R. 919). 22. 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 CPC, including the mode by attachment and sale of the immovable property of the judgment-debtor. 23. As before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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. 33. 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 CPC, does not survive. 34. 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. 35. As pointed out by this Court in Kiran Singh v. Chaman Paswan [1955]1SCR117 , ...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 . 36. Most of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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