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Ram Anjore Pandey Vs. Sadanand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 2479 of 1961
Judge
Reported inAIR1967All263
ActsCode of Civil Procedure (CPC) , 1908 - Sections 42; Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1954 - Sections 51 - Order 21, Rule 82
AppellantRam Anjore Pandey
RespondentSadanand
Advocates:S.S. Varma, Adv.
DispositionAppeal dismissed
Excerpt:
civil - mode of execution - order 21 rule 82 and section 42 of code of civil procedure, 1908 (as amended by u.p. civil laws (reforms and amendment) act xxiv of 1954 - small cause court passed decree before amendment of section 42 - transfer to the court of district munsif for execution in 1959 that is after amendment - powers of munsif already altered by amendment of section 42 - held, at the time munsif's court received the decree it had no power to attach property in execution. - .....the decree, the decree-holder acquires a right to get immovable property sold by having his decree transferred to a court other than a court of small causes.3. section 51 c. p. c. merely prescribes modes of execution and it does not say that every decree can be executed in the manner prescribed therein. even before the amendment of section 42 c. p. c. a small cause court decree could not be executed by sale of immovable property in those courts. section 51 of the c. p. c. opens with the words 'subject to such condition and limitation as may be prescribed.' the modes prescribed by section 61 c. p. c. are, therefore, always subject to other provisions of the code and section 42 is one of such provisions.4. under the amended section 42 c. p. c. the court executing a decree sent to.....
Judgment:

B. Dayal, J.

1. This is an Ex. Second Appeal by the decree-holder. He obtained a decree from the Court of Small Causes in 1951 and got it transferred to the Munsif's court in the year 1959 and asked for attachment and sale of immovable property. Both the courts below relied upon Section 42. C. P. C. as amended by the U. P. Laws (Reforms and Amendment) Act No. XXIV of 1954 holding that a transferee court, although a court of Munsif, had the same powers which the transferor court had, namely, the Court of Small Causes and consequently could not execute the decree against immovable property. So far as this order interpreted the amended Section 42. C. P. C. there is no dispute.

The contention on behalf of the decree-holder, however, is that he having obtained the decree before the amendment of Section 42 C. P. C. a right vested in him to execute his decree by the modes that were available before the amendment and Section 42, C. P. C., as amended, is not retrospective and has no application to the decrees passed before the amendment. The learned counsel has relied upon Section 3 of the U. P. Laws (Reforms and Amendment) Act No. XXIV of 1954, the relevant part of which is as follows, 'Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of any right already acquired prior to the commencement of this Act.'

The contention of the learned counsel is that the decree-holder having obtained the decree before the amendment of Section 42, C. P. C., he acquired the right to execute his decree by sale of immovable property in a regular court other than the court of a small cause under the unamended Section 42 C. P. C. He also contends that the provisions of Section 51 which provides for the modes of execution by attachment and sale of any property, as also Order 21, Rule 82, C. P. C. namely the right to get immovable property sold in execution of a decree by any court other than a court of Small Causes, have still been taken away and he is entitled to exercise those rights.

2. After carefully considering the contentions of the learned counsel, I am of the opinion that there is no force in these arguments. Section 3 of the U. P. Laws (Reforms and Amendment) Act saves the right already acquired. I am unable to hold that AS soon as a decree-holder obtains a decree, he acquires a right in all the modes of execution prescribed at that time by the C. P C. He merely has a right to execute his decree and as such execution can only proceed according to the procedure prescribed for execution at the time when the execution is taken out and it cannot therefore, be said that at the time of obtaining the decree, the decree-holder acquires a right to get immovable property sold by having his decree transferred to a court other than a court of Small Causes.

3. Section 51 C. P. C. merely prescribes modes of execution and it does not say that every decree can be executed in the manner prescribed therein. Even before the amendment of Section 42 C. P. C. a Small Cause Court decree could not be executed by sale of immovable property in those courts. Section 51 of the C. p. C. opens with the words 'Subject to such condition and limitation as may be prescribed.' The modes prescribed by Section 61 C. P. C. are, therefore, always subject to other provisions of the Code and Section 42 is one of such provisions.

4. Under the amended Section 42 C. P. C. the court executing a decree sent to itl has the same powers to execute such decree as the court which passed it. Therefore, when the Small Cause Court decree is transferred to the court of the Munsif, he also has the same powers for the, purposes of executing the decree which a Small Cause court has. After this amendment, Section 42 of the C. P. C. also has to be read in that light. When this section says. 'Sale of immovable properly in execution of decrees may be ordered by any court other than a Small Cause court' must mean that court of Munsif when executing a decree transferred to it from the court of Small Causes is also a court of Small Causes for purposes of execution. I am, therefore, unable to hold that by virtue of this rule the Munsif's court can exercise jurisdiction for selling immovable property in execution of a decree transferred from a court of Small Causes.

5. In this case, the decree was transferred to the court of the Munsif for execution in 1959 after powers of the Munsif had already been altered by the amendment of Section 42, C. P. C. as mentioned above. Thus at the time when the Munsif's court received the decree it had no power to attach immovable property in execution of the decree.

6. I, therefore, see no force in thisappeal. It is accordingly dismissed. As nobody appears for the respondent, there willbe no order as to costs in this appeal.


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