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Allahbad High Court
R.N.SHARMA,G.D.SAHGAL
Suraj Bux Singh - Appellant
Versus
Badri Prasad - Respondent
Decided On : 03/23/1966
EXECUTION OF DECREE - AMENDMENT OF SECTION 42 OF THE CODE OF CIVIL PROCEDURE - VESTED RIGHT OF DECREE-HOLDERS - SAVING OF RIGHT BY SECTION 3 OF THE U.P. CIVIL LAWS (REFORMS AND AMENDMENT) ACT, 1954 - INTERPRETATION OF SECTION 42 AS AMENDED - POWERS OF TRANSFEREE COURT - RIGHT TO REALISE DECREE MONEY FROM IMMOVABLE PROPERTY OF JUDGEMENT-DEBTOR AS SUBSTANTIVE RIGHT - DISTINCTION BETWEEN SUBSTANTIVE RIGHT AND PROCEDURAL MATTER - RIGHT OF APPEAL AS ANALOGOUS TO RIGHT TO REALISE DECREE MONEY FROM IMMOVABLE PROPERTY - OBJECT OF AMENDMENT OF SECTION 42 - INTENTION OF LEGISLATURE - EFFECT OF AMENDMENT ON VESTED RIGHTS - CONCLUSION.
Fact of the Case:
Three cases involving the execution of decrees passed by Small Cause Courts and transferred to regular civil courts for execution. The issue arose due to an amendment in Section 42 of the Code of Civil Procedure by the U.P. Civil Laws (Reforms and Amendment) Act, 1954, which affected the powers of transferee courts in executing such decrees.
Finding of the Court:
The court held that the amendment to Section 42 did not affect the vested rights of decree-holders who had obtained their decrees before the amendment came into force. The right to execute a decree by attachment and sale of immovable property was considered a substantive right, and the amendment did not specifically take away this right. The court also held that the object of the amendment was to enlarge the powers of transferee courts, not to restrict them.
Issues: 1. Whether the amendment to Section 42 of the Code of Civil Procedure retrospectively affected the vested rights of decree-holders who had obtained their decrees before the amendment came into force. 2. Whether the right to execute a decree by attachment and sale of immovable property was a substantive right or a mere procedural matter. 3. Whether the object of the amendment was to enlarge or restrict the powers of transferee courts.
Ratio Decidendi: 1. The court interpreted Section 42 of the Code of Civil Procedure, as amended, to mean that the transferee court had the same powers in executing a decree as the court which passed it. This interpretation was based on the language of the amended section and the object of the amendment, which was to enlarge the powers of transferee courts. 2. The court held that the right to execute a decree by attachment and sale of immovable property was a substantive right, not a mere procedural matter. This was because the right to realize the decree money from the immovable property of a judgment-debtor was a substantive right, and the manner of proceeding against such property was only a procedural matter. 3. The court held that the object of the amendment to Section 42 was to enlarge the powers of transferee courts, not to restrict them. This was because the amendment gave transferee courts the power to decide certain classes of objections relating to execution, discharge, or satisfaction of the decree, which they did not have before.
Final Decision: The court dismissed the revision petition and allowed the two appeals. It held that the decree-holders had a vested right to execute their decrees by attachment and sale of immovable property through a court of regular jurisdiction, and this right was not taken away by the amendment to Section 42. The court directed the lower courts to restore the execution cases and proceed to execute the decrees according to law.
2. The facts from which Civil Revision No. 86 of 1961 arises are these. A money decree was passed by the Judge, Small Cause Court, Lucknow, in favour of the opposite party, Badri Prasad against the applicant, Suraj Bux Singh on 29-4-1958. On 1-11-1958 an application was made for transfer of the decree to the Munsif's court under Section 59 of the Code of Civil Procedure. The transfer was ordered on 29-11-1958 but a transfer certificate was actually sent to the Munsif's court on 9-12-1958. On 29-2-1960 the decree-holder made an application to the Munsif for execution of the decree by attachment and sale of immoveable property. The judgement-debtor filed an objection under Section 47, Code of Civil Procedure, on the ground inter alia that the execution was barred by limitation.
The learned Munsif did not consider the question of limitation and passed a short order allowing the objection and directing that the execution case be consigned to records on the ground that the decree was of a Small Cause Court and execution could not proceed against immoveable property in view of Section 42 of the Code of Civil Procedure by which he probably meant Section 42 as amended in its application to Uttar Pradesh by the U.P. Civil Laws (Reforms and Amendment) Act, 1954. This plea was not taken in the objections under Section 47 but the Munsif himself considered this point and held that execution could not proceed against immoveable property.
Aggrieved by this order the decree-holder went in appeal. The lower appellate court held that because the decree was passed in the year 1952 i.e., before the amendment of Section 42 of the Code of Civil Procedure. A right had vested in the decree-holder to obtain transfer of his decree to a Munsif's court and to execute it by attachment and sale of immoveable property and this right was saved by Section 3 of the aforesaid Act. The appeal was therefore allowed and the Munsif was directed to restore the execution case and the miscellaneous case relating to the objection under Section 47, and after considering the ground of limitation raised by the judgement-debtor, to proceed with the matter according to law. As against this order the Judgement-debtor has come in revision.
3. In the case giving rise to First Execution of Decree Appeal No. 1 of 1961 a money decree was passed by a Judge, Small Cause Court on 29-10-1963. The decree was transferred to a Civil Judge and the decree-holder applied for execution by attachment and sale of immoveable property. The learned Civil Judge held that the execution was not maintainable and struck it off. The decree-holder has come in appeal against this order.
4. In the third case also which gives rise to Second Execution of Decree Appeal No. 5 of 1964 a money decree was passed by a Judge, Small Cause Court, on 27-8-1953. The decree was transferred to a Munsif and one-fourth share of the judgement-debtor in a house was attached and sold on 14-9-1960. The decree-holder himself purchased the property and the sale was confirmed on 10-11-1960. Possession was delivered to the decree-holder through court on 21-9-1961. After this, on 27-10-1961 the judgement-debtor made an application for restoration of possession on the ground that the sale was a nullity inasmuch as immoveable property could not be attached in execution of a decree of the Small Cause Court. The munsif upheld the objection of the judgement-debtor and set aside the sale holding it as void and inoperative. The decree-holder was directed to redeliver possession of the property to the judgement-debtor. The decree-holder went in appeal but it was dismissed and the judgement of the Munsif was confirmed. Aggrieved by this order of the lower appellate court the decree-holder has come in second appeal.
5. The only question of law in
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