SHARDA PRASAD Vs. RAM ASRAY

JUDGEMENT

(1.) THIS is a decree-holder's, appeal against the concurrent judgments of the courts below refusing execution of the decree against immovable property when the decree was passed by the Small Cause Court of Bombay Presidency and the same was transferred to the District Judge, Jaunpur for execution. The Dis­trict Judge, in turn, had transferred it to the Civil Judge for execu­tion. The Civil Judge, Jaunpur on the basis of the case of Ramnatti v. Sarju 1966 A.W.R. 139=1966 A.L.J. 420, ordered that the decree under execution could not be executed against immovable property of the judgment-debtor. It appeal (civil appeal No. 321 to 1966), the District Judge, Jaunpur upheld that order by his judgment dated December 10, 1966. Feel­ing aggrieved by the same, this appeal has been filed.

(2.) NOTICE was issued to the respondent but he has not appeared nor he is represented by counsel. I have, therefore, heard learned counsel for the appellant and perused the record. Sri G.P. Bhargava, learned counsel for the appellant has drawn by attention to the amendment made to Section 42, C.P.C. by U.P. Act No. XIV of 1970. The effect of this was that Section 42, as it stood originally, was res­tored. By the amendment of 1954 by U.P. Civil Laws (Amendment) Act, 1954, the section had been amended and it read as follows:

(3.) IT thus reproduces the language of the original Section 42, C.P.C. it is now certainly possible for the Civil Judge to execute the decree against immovable property. It is significant that under Section 31 of the Presidency Small Cause Court Act, the decree could have been transferred for execution against immovable property to a regular Court and it was, therefore, rightly transferred to the District Judge, who in turn transferred the same for execution to the Civil Judge.