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Karam Chand Vs. Gur Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 847 of 1958
Judge
Reported inAIR1960All512
ActsCode of Civil Procedure (CPC) , 1908 - Sections 7 and 42; Uttar Pradesh Code of Civil Procedure (CPC)
AppellantKaram Chand
RespondentGur Dayal
Advocates:Hari Swarup, Adv.
DispositionAppeal dismissed
Excerpt:
civil - amendment - sections 7 and 42 of code of civil procedure, 1908 as amended by u.p. act 24 of 1954 - amended section 42 restricts execution of decree passed by small cause court against immovable property. - - it raises an interesting question of law relating to the effect of the recent amendment of section 42 c. previously, the court to which the decree was transferred for execution enjoyed the same powers as if the decree had been passed by itself;.....of a judgment-debtor.4. prior to the amendment of section 42, the practice was to transfer a decree passed by a small cause court to another court if the decree-holder wanted to proceed against any immovable property of the judgment-debtor. section 42 before the amendment ran thus:'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.'5. thus the munsiff's court, to whom a decree passed by the court of small causes was.....
Judgment:

S.S. Dhavan, J.

1. This is a decree-holder's second appeal against an order of the learned Civil Judge, Agra, upholding the judgment-debtor's objection to the execution of his decree. It raises an interesting question of law relating to the effect of the recent amendment of Section 42 C. P. C. The facts of the case are these:

2. The decree-holder Karam Chand obtained a decree for Rs. 58.0/- with costs against GUR Dayal from the Judge Small Cause Court, Agra. He wanted to execute it by attachment of some immovable property of the judgment-debtor. As the Small Cause Court is debarred by Order 21 Rule 82 and Order 50 Rule 1 C. P. C., from proceeding against immovable property in execution of decrees, the appellant Karam Chand obtained a transfer of his decree to the Court o the Munsiff, Agra, and secured from that Court an order of attachment against some immovable property belonging to the judgment-debtor. The latter, however, objected that, in view of the amendment of Section 42 C. P. C. by the State Legislature, the Munsiff Agra had no jurisdiction to proceed against immovable property. The objection was upheld by the execution Court and also in appeal by the learned Civil Judge. The decree-holder has now come to this Court in second appeal.

3. The powers of an execution Court are defined in Section 51 of the C. P. C. On the application of the decree-holder, the Court can order execution of the decree (1) by delivery of any property specifically decreed, or (2) by attachment and sale or by sale without attachment of any property, or (3) by arrest and detention of the judgment-debtor in prison, or (4) by appointing a receiver; or (5) in such other manner as the nature of the relief granted to the decree-holder may require. Order 21 Rule 82 of the Code says that the sale of immovable property in execution of the decree may bs ordered by any Court other than a Court of Small Causes. Order 50 Rule 1, inter alia, enjoins in effect that the rules relating to the execution of the decrees against immovable properties shall not extend to the Courts of Small Causes. The combined effect is to debar Courts of Small Causes from levying execution against the immovable properly of a judgment-debtor.

4. Prior to the amendment of Section 42, the practice was to transfer a decree passed by a Small Cause Court to another Court if the decree-holder wanted to proceed against any immovable property of the judgment-debtor. Section 42 before the amendment ran thus:

'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.'

5. Thus the Munsiff's Court, to whom a decree passed by the Court of Small Causes was transferred, could order execution by attachment of immovable property by treating the decree as if it had been passed by itself. In 1954, however, the State Legislature passed an Act amending Section 42. The new section runs thus :

'42. The Court executing a decree sent to it shall have the same power in executing such decree as the Court which passed it. All persons disobeying or obstructing the execution of decree shall be punishable by such Court in the same manner as if ft had passed the decree, and its order in executing Each decree shall be subject to the same rules in respect of appeal as if the decree had been parsed by itself.'

6. The effect of the change is clear. Previously, the Court to which the decree was transferred for execution enjoyed the same powers as if the decree had been passed by itself; but after the amendment, it has the same power as the Court which actually passed the decree.

7. The amendment of Section 42 was a part of the U. P. Civil Laws (Reforms and Amendment) Act, 1954 which was passed with the object of giving effect to the recommendations of a committee ap-pointed by the U. P. Government to enquire into the administration of justice in this State with particular reference to the causes of delay in the disposal of the cases, multiplicity of proceedings and to suggest measures to curtail unnecessary litigation and to secure speedy justice at less expense. One of the recommendations related to the powers of Courts to which decrees are transferred for execution. The transferee Court, by virtue of the fiction created by Section 42, had the same power in executing the decree 'as if it had been passed by itself.'

But there were many questions which were beyond its powers to decide. This resulted in considerable waste of time and multiplicity of proceedings as the parties were compelled to shuttle between the executing Court and the Court which passed the decree whenever such questions arose for decision. It was, therefore, thought desirable that! the executing Court should be given the same powers as the Court which passed the decree. Section 42 was subsequently amended as above and the words 'the same powers as if it had been passed by itself' were changed into 'the same power as the Court which passed the decree.' The result is that an executing Court has the same powers in execution as the Court which passed the decree--no more, no less.

8. But as regards the decrees passed by Courts of Small Causes, the amendment had the effect of curtailing instead of enlarging the powers of the Courts to which they are transferred for execution. Previously such, a decree could be executed against the immovable property of the judgment-debtor pro-vided it was sent to another Court whose own powers of execution were unfettered by the restrictions imposed on Courts of Small Causes, and which could proceed as if it had passed the decree itself. But after the amendment of Section 42 it has no more power than the Court which passed the decree that is, the Small Causes Court.

9. It appears to me therefore, that as the result of the amendment of Section 42, a decree of a Small Cause Court cannot be executed against immovable property at all--not by that Court because of the express prohibition in the C. P. C., and not by any other Court because of the restrictions imposed by the amended Section 42.

10. The case for the appellant was argued with great tenacity by Mr. Hari Swamp who suggested that the Court should fill up the lacuna which was the result of over-sight. I agree with the general principle enunciated by learned counsel that the Court should give effect to the real intention of the legislature as far as possible, but this will apply only when the Statute is ambiguous or is capable of the different meanings. But if the meaning is so plain as to leave no room for doubt, the Court has no power to alter it. In this case the words are plain, and it is possible that the legislature may have decided, while enlarging the powers of the Courts to which decrees are transferred in execution to restrict them in the case of decrees of Small Causes Courts.

The words, 'the same powers as the Court which passed the decree', have not been made subject to any exception in favour of decrees of such Courts. It is not for this Court to speculate on the intention of the legislature when the language of the statute is plain. In such a situation the Court can only draw the attention of the legislature to the lacuna, if any, which may have crept into a statute by mistake or over-sight. But if it proceeds to fill up the lacuna itself by altering the plain meaning of the statute, the Court will be entering the forbidden territory of legislation. Under the law as it stands today the appellant's application for execution was rightly dismissed. This appeal fails and is dismissed.


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