1. This is a defendants' second appeal against whom a decree for their ejectment from House No. B-26/24 situate in Mohalla Nawabganj in the city of Varanasi has been passed by the lower appellate court. The suit had been dismissed by the trial court.

2. The house belonged to Hiralal, the father of appellant Pera. One Dwarika Sahu obtained a decree for recovery of a sum of Rs. 254/- from Hiralal from the Court of Judge, Small Causes. This was on Apr. 14, 1951. An application for execution of the decree was made on Feb. 1, 1954 before the City Munsif, Varanasi which was registered as Execution Case No. 84 of 1954. The house was attached during execution proceedings on March 26, 1954 and put to auction sale on Nov. 19, 1954. The decree holder himself was the auction purchaser but since he did not deposit the purchase money within the prescribed period of limitation, the auction sale was cancelled on Dec. 17, 1954. Mean while, Sec. 42 of the Civil P.C came to be amended with effect from Nov. 30, 1954 by the U.P Civil Laws (Reforms and Amendment) Act, 1954. The house was put to auction again in Execution Case No. 64 of 1954 on March 1, 1955 and was this time purchased by plaintiff-respondent Lal Behari for a sum of Rs. 500/-. The sale was confirmed on April 4, 1955 and a sale certificate prepared in favour of the purchaser, on May 26, 1955. The plaintiff sought to take possession of the house on July 16, 1955 by an application dated July 16, 1955 under O. 21 R. 95 C.P.C The application was dismissed in default of the plaintiff who then made a fresh application (No. 7 of 1955) and possession was delivered, according to the plaintiff, to him by the Kurk Amin on June 3, 1965. The appellants it is said, took back possession forcibly on July 19, 1965 so that according to the plaintiff, he had to file the present suit. The case, on the contrary, of the appellants was that Hira Lal had already died on Nov. 1, 1962 and the appellants, claiming to be in possession of the house in their own rights, had objected to the prayer of the plaintiff for being put into possession of the house. That objection was allowed on May 2, 1969. It is also their case that the plaintiff made another application for being put in possession of the house which was rejected on Dec. 13, 1971 on the ground that the decree could not be executed as its execution had become barred by limitation. An appeal against this order filed by the plaintiff was also dismissed by the District Judge on May 24, 1972. The case of the appellants was that they remained throughout in possession of the property in suit and the story about their having taken forcible possession from the plaintiff on July 19, 1965 was incorrect. The suit, out of which arises the present appeal, was filed on May 31, 1966 inter alia for the relief of recovery of possession on the basis of the auction sale which was confirmed on April 4, 1955 in favour of the plaintiff.

3. The trial court framed several issues and, on the first two of them, namely, whether the plaintiff was the owner of the house in suit and derived any title under the sale certificate obtained by him, the conclusion of the trial court was that the auction sale in favour of the plaintiff was null and void so that he never became owner of the property in suit. The trial court felt that since the decree passed by the Judge, Small causes could not be executed by sale of immoveable property due to the amendment in Sec. 42 C.P.C by the U.P Civil Laws (Reforms and Amendment) Act, 1954 (U.P Act No. 24 of 1954) (hereinafter, the amending Act) the auction made in the year 1955 and confirmed on April 4, 1955 did not pass any title to the plaintiff. The trial court was of opinion that the fact that the property in suit had been attached on Mar. 26, 1954, that is, before the date of the amendment; could not render the auction sale in favour of the plaintiff in the year 1955 valid because a decree-holder could not claim to have acquired any right in the property on account of the attachment. The trial Court purported to follow the decision of a Full Bench of this Court in Ram Lochan v. Mahadeo Prasad Singh (AIR 1970 All 544). On this principal finding, the suit was dismissed.

4. When the dispute reached the Second Additional Civil Judge, Varanasi as Civil Appeal No. 314 of 1972, the points that were posed for determination by him were:—

(1) Whether the plaintiff was the owner of the house in suit?

(2) Whether the sale certificate obtained by the plaintiff was legal and the plaintiff derived title therefrom?

(3) Whether the plaintiff took possession through court on June 3, 1965 and entered into possession on that date?

(4) Whether the possession of the plaintiff was cancelled on May 2, 1969 by the court and, if so, its effect?

(5) Whether the plaintiff was dispossessed from the house on July 9, 1965? and,

(6) Whether the suit was within time?

5. The first two points were answered in favour of the plaintiff by the learned Judge by holding that the Procedure prescribed for execution of the decree at the time when the decree is put in execution was available to the plaintiff and, inasmuch as the decree-holder had put his decree in execution on Feb. 1, 1954 and attachment of the property had been made on March 26, 1954, that is, before the amendment of section 42 C.P.C, the unamended procedure was to apply in the instant case in view of Sec. 3(1) of the amending Act which contained the savings clauses. Since the plaintiff had purchased the house in a court auction which took place in execution Case No. 64 of 1954 and a sale certificate had been issued in his favour after the confirmation of the sale, title over the house came to vest in the plaintiff. The learned Judge held that any decision on point Nos. 3 to 5 was not very material for being the owner of the house in suit, the plaintiff could seek possession over it by bringing a suit. Since the suit had been brought by the plaintiff on May 31, 1966, within 12 years of the confirmation of the sale in his favour, it was within limitation. The sixth point was answered thus. The Additional Civil Judge, consequently decreed the suit for the ejectment of the present appellants from the house, Hence, the second appeal.

6. Sri R.R Yadav for the appellants contended, firstly, that the decree of the Court of Judge, Small Causes could not be executed by the City Munsif, Varanasi by sale of immoveable property without proof of any order of transfer having been made of that decree for execution to this court; secondly, that the decree in the instant case having been executed subsequent to the amendment of S. 42 C.P.C by the amending Act, by the auction of the house, the said auction proceedings were null and void and conferred no title upon the plaintiff in respect of the house for S. 3 of the amending Act, namely, the saving provision did not apply to the present case and, thirdly, that the suit for possession was barred by limitation. The submissions have been countered by Sri R.N Singh who appeared for the plaintiff-respondent.

7. Part II of the Civil P.C comprising of Ss. 36 to 74 deals with the execution of the decrees. A decree, under S. 38, may be executed by the court passing it or by the court to which it is sent for execution. Under S. 39, in so far as it is material, the court which passes a decree may send it for execution to another court of competent jurisdiction on the application of the decree-holder in circumstances mentioned in Clauses (a) to (d) of sub-section (1) which read thus:

“39(1). The Court which passed a decree may, on the application of the decree-holder send it for execution to another Court,

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.”

8. The jurisdiction of the transferee Court to execute the decree depends upon the transfer validly made to it of the decree for execution. Unlike cls. (a) to (c) of sub-sec. (1) of Sec. 39, the Court, under cl. (d) has a discretion to transfer or not to transfer a decree passed by it. Where it chooses to transfer a decree for execution to another Court for a reason other than those contemplated by the preceding three clauses it has to record those reasons in writing. The Court which passes the decree can refuse to transfer it for execution to another Court where the case is not covered by cls. (a) to (c) of Sec. 39(1). The element of discretion vested in the Court in such cases inevitably involves a positive order of transfer in writing by the court sending the decree for execution to another Court of competent jurisdiction. Existence of such order by the Court passing the decree cannot be presumed and before the decree-holder can successfully be permitted to seek execution of his decree by the transferee Court, in a case not covered by cls. (a) to (c) of S. 39(1), he has to allege and establish that the Court passing it had, in fact, directed its transfer for execution to the transferee Court. As held by the Supreme Court in Mahadeo Prasad Singh v. Ram Lochan (1980 All LJ 1019) : ((1980) 4 SCC 354 : AIR 1981 SC 416), the decree-holder has no indefeasible, substantive right to get a decree of a Court of Small Causes passed in his favour transferred to another Court under S. 39(1)(d) C.P.C To quote the words of the Supreme Court

(Para 16)

“………under S. 39(1)(d), the decree-holder has no indefeasible substantive right to get a decree of a Court of Small Clauses passed in his favour transferred to another Court, Cases are conceivable where the decree is of such a petty amount that the Court of Small Causes thinks that it can easily be executed by it by attachment and sale of the movable property of the judgment-debtor. In the instant case, also the decree was for a small amount of Rs. 380/- and odd, and we understand that the application for transfer was made under Cl. (d) of S. 39(1). Thus, the decree-holder's right to make an application for transfer of his decree under Sec. 39(1)(d) is a mere procedural right. The Court of Small Causes could in its discretion, for reasons to be recorded, refuse to transfer it to the Court of the Munsif. In other words the decree-holder had no vested or substantive right to get the decree transferred to the Court of the Munsif for execution ……”

9. In the present case the decree which had been obtained by Dwarika Sahu from the Court of Small Causes was for recovery of a sum of Rs. 254/-. The counsel for the plaintiff-respondent was not able to point out that the Small Cause Court sent to the decree for execution to the Court of the Munsif for reasons contemplated by cl. (a) or (b) of Sec. 39. The decree admittedly did not direct the sale or delivery of immoveable property. It is obvious that the transfer of the decree was not on account of the conditions envisaged by cls. (a) to (c) of sub-sec. (1) of Sec. 39 C.P.C

10. No presumption under Sec. 114(e) of the Indian Evidence Act can be drawn about the order of transfer having been made by the Court which passed the decree to the transferee Court in cases covered by cl. (d) of Section 39(1) C.P.C A presumption which is permitted by illustration (e) to Section 114 is only in regard to procedure and not that an order, like the one under cl. (d), has been made by the Court in its discretion. The illustration (e) does not authorise a presumption, without any evidence, that a particular jurisdiction act has been performed. All that it authorises is the presumption that a particular judicial act, which has been performed, has been performed regularly. (See Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal AIR 1956 All 689; State of Madhya Bharat v. Behramji Dungaji & Co. AIR 1958 Madh Pra 71 and Venkataramana Udupa v. Kannan Chettiar AIR 1963 Ker 9).

11. If the jurisdiction of the transferee court to execute a decree passed by another court, depends upon an order of transfer made in its discretion, under cl. (d) of Sec. 39(1) C.P.C by the latter court, it is obvious that the decree-holder or a person claiming rights in pursuance of the decree must assert and establish that such an order of transfer was made by the Court which passed the decree. The primal burden in this respect is upon the decree-holder or such a person. More so, when the presumption that an order of transfer was actually made by Court which passed the decree, cannot be drawn by aid of illustration (e) of Section 114 of the Evidence Act. It is for them to establish that the executing court had the jurisdiction to execute the decree. As observed by the Supreme Court in K.S Nanji & Co. v. Jatashankar Dossa (AIR 1961 SC 1474, (at p. 1478) “………… under the Evidence Act, there is an essential distinction between the phrase “burden of proof” as a matter of law and pleading and as a matter of adducing evidence. Under S. 101 of the Evidence Act, the burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial, …………”

12. The plaintiff-respondent, who is claiming to be the owner of the house on the basis of the auction held in exeoution of the decree by the Munsif, made no averment that the decree was transferred by the Judge Small Causes for execution to the Munsif. In fact there is no averment in the plaint about making of any order of transfer at all. Naturally, therefore, the defendants were not called upon to take any objection about the absence or invalidity of any order of transfer by the Court passing the decree for its execution to the Court of the Munsif.

13. Once it is held that it is not established that the Executing Court had acquired jurisdiction to execute the decree by the sale of the house in dispute, it is clear that the defendant-appellant could not be dispossessed therefrom as a consequence of any sale made by the Executing Court. The sale made by it was non est in the eye of law and its invalidity could be setup by them even in these proceedings where the defendants were sought to be dispossessed on the basis of the title said to have been acquired by the purchaser thereunder (See Mahadeo Prasad v. Ram Lochan 1980 All LJ 1019) : ((1980) 4 SCC 354 : AIR 1981 SC 416).

14. The lower appellate court was not justified in passing a decree for the ejectment of the applicants from the house in dispute in the circumstances of the case. Its decree can, therefore, not be upheld. In view of this conclusion, it is unnecessary to examine the other submissions made on behalf of the appellants.

15. The appeal succeeds and is allowed. The decree of the lower appellate court is set aside and the plaintiff's suit is dismissed.

16. The parties are however, directed to bear their own costs.

17. Appeal allowed.