RAM ANJORE PANDEY Vs. SADANAND

JUDGEMENT

(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.

(2.) 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."

(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.