MAHADEO PRASAD SINGH & ANR. versus RAM LOCHAN & ORS.

Citation: [1981] 1 S.C.R. 732 · Decided: 16-09-1980 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

Judgment (excerpt)

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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 
not invest the decree-holder-purchaser with any title. 
. .It... 
MAHADEO PRASAD V. RAM LOCHAN 
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 sec· 
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. 
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 t

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