Bhattacharjee, J.:— The appellant/decree-holder obtained a money-decree against the deceased judgment-debtor, now represented by his two sons, the respondents No. 1 and No. 2, and in execution of that decree attached a plot of land belonging to the judgment-debtor.

An objection was preferred to such attachment by the other respondent No. 3 on the ground that he having purchased the land long before the attachment after paying the full consideration money therefor and taking delivery of possession thereof, the said land was no longer liable to such attachment, even though the sale-deed therefor was not registered till then. The executing Court by its order dated 29-10-1975 in the Misc. Case arising out of the objection petition filed by the respondent No. 3 allowed the petition and released the property from attachment and against the said order the present Appeal has been filed which has been registered as Civil Misc Appeal No. 2 of 1976.

2. Under the provisions of O. 21, R. 63, Civil Procedure Code an order allowing or disallowing a claim or objection to any attachment has been made “conclusive subject to the result of any suit that may be instituted by a party against whom such an order has been made. No appeal lies from such an order under the provisions of Section 104 read with Order 43, of the Civil P.C And, therefore, the only way by which the decree-holder/appellant can challenge this order before us is by invoking, if he can, our revisional jurisdiction under S. 115, Civil P.C It is beyond doubt that if an appeal has been preferred, where none lies, the appeal may be treated and decided as a revision if the points involved are good enough to invoke and attract the revisional jurisdiction.

3. The Executing Court, however, by another order of the same date in the main Execution Case, “struck off” the execution petition filed by the decree-holder “without satisfaction” on the ground that even if the attached plot of land was taken into consideration as the land of the judgment-debtor, the judgment-debtor would still then have less than 5 acres of land in a and, therefore, no execution could be allowed to proceed against any portion of such lands because of the provisions contained in Notification No. 3082.L.R., paragraph 3 whereof provides that “no Court will sell or transfer a holding or any part of a holding of a primary holder in execution of a decree, whether revenue or civil, if by such sale or transfer the said holding will become less than five acres in area”. And against this order an appeal has been filed by the decree-holder which has been registered as Civil Execution Appeal No. 1 of 1976 and which is obviously maintainable as an appeal, being against an order determining question “relating to execution of the decree” within meaning of Section 47 read with Section 2(2) of the Civil P.C This judgment will govern and decide both the appeals, though, as already noted, the Misc. Appeal No. 2 will have to be determined and disposed of as if it were a Revisional Application. First, to that appeal-cum-revision and then to the regular appeal.

4. Now, as is well known, all orders of subordinate Civil Courts have been endowed with a blanket statutory immunity from interference in revision, unless the order involve issues relating to jurisdiction either non-exercise or illegal exercise or illegal assumption thereof. Law on this point is really well settled for about a century and whether one refers to the Privy Council case of Raja Amir Hassan Khan v. Sheo Baksh Singh (11 Ind App 237), decided as early as in 1884, or to the later Privy Council case of T.A Balakrishna Udayar v. Vasudeva Aiyar (AIR 1917 PC 71) or to the much later Privy Council case of N.S Venkatagiri Ayyanger v. Hindu Religious Endowments Board, Madras (AIR 1949 PC 156) or one refers to the later decision in Keshardeo Chamria v. Radha Krishen Chamria (AIR 1953 SC 23) or to the later decisions of the Supreme Court in D.L.F Housing and Construction Co. v. Sarup Singh (AIR 1971 SC 2324), one will find the law to be the same. The position in law will appear to be firmly established, as stated in D.L.F Housing and Construction Company's case (AIR 1971 SC 2324 at p. 2327), “that while exercising the jurisdiction under S. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.” A plain reading of the section makes it irresistibly clear that unless the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested in it or has exercised a jurisdiction so vested, but in such exercise has acted illegally or with material irregularity, its orders are immune from the revisional interference by the High Court. As observed by the Privy Council in T.A Balkrishna Udayar's case (AIR 1917 PC 71 at p. 74), quoted with approval by the Supreme Court in Keshardeo Chamria's case (AIR 1953 SC 23 at p. 27) “the section applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it” and “is not directed against conclusions of law or fact in which the question of jurisdiction is not involved”.

5. It cannot be said that in passing the impugned order and thereby allowing the objection preferred by the objector-respondent No. 3, the Executing Court has exercised a jurisdiction which it has not or has refused to exercise a jurisdiction which it has. The Executing Court in passing the impugned order has, without doubt, exercised a jurisdiction which it has vested in it and, therefore, the revisional jurisdiction of this Court can be invoked vis-a-vis the impugned order only if the Executing Court in passing the said order, has acted “illegally” or “with material irregularity” within the meaning of Clause (c) of Section 115, Civil Procedure Code. Now, the expressions “illegally” and “with material irregularity”, as used in Section 115(c), do not, as observed by the Supreme Court in Keshardeo Chamria's case (AIR 1953 SC 23 at p. 28) and in D.L.F Housing & Construction Company's case (AIR 1971 SC 2324 at p. 2327), cover either errors of fact or of law and “do not refer to the decisions arrived at but merely to the manner in which they have been reached”. The errors contemplated relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decision and not to errors whether of fact or of law after the prescribed formalities have been complied with. I have not been able to discern or discover any such error, or, for the matter of that, any serious error in the impugned order passed by the Executing Court.

6. Under the provisions of O. 21, R. 60, if “the Court is satisfied that for the reasons stated in the claim or objection”, the property in respect of which such claim or objection is preferred “was not in the possession of the judgment-debtor or some person in trust for him or in the occupancy of a tenant or other person paying rent to him”, “the Court shall make an order releasing property from attachment”. That is what the Executing Court has precisely done in this case after finding, in its own way, that the disputed land was sold to the objectors by an unregistered sale-deed by the judgment-debtor on receipt of full consideration long before the suit in which the decree under execution was passed and that the objector was and is in possession thereof since then. The appellant/decree-holder in his Memorandum of Appeal admitted the alleged sale by the unregistered sale-deed and has nowhere challenged or disputed the finding that the objector was in possession thereof in pursuance to such sale.

7. The only point that has been urged by the appellant/decree-holder in his Memorandum of Appeal is that the disputed land was mortgaged by way of “DIK” under the hand-note which was executed by the judgment-debtor in favour of the decree-holder. It is not for this Court, sitting in revision, to ascertain on evidence whether the disputed land was or could be mortgaged in any way for the loan by that unregistered handnote document; but it must, however, be noted that the suit in which the decree under the execution was passed was a simple suit for recovery of money and was in no way a suit on or for the enforcement of any mortgaged security or pledge and the decree which was passed in that suit was a simple money-decree. When in execution of such a money decree, the disputed land alleged to be owned by the judgment-debtor, was attached and the objector objected to such attachment by advancing his claim to the attached property, all that the Executing Court had to see under Rule 59 of Order 21 was that the objector had “some interest in or was possessed of the property attached”. And to “make an order releasing the property … .. … from attachment” under Rule 60, if “the property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him”. That is, as I have already stated, what the Executing Court has precisely done when it allowed the objection of the objector and released the disputed land from attachment on its finding that the same was sold by the judgment-debtor to the objector, though by an unregistered sale-deed, after receiving the full consideration money and putting the objector in possession thereof since then, long before the attachment in question. These findings as to the sale or the agreement or attempt to sell in favour of objector, the consequent delivery of possession, not having been challenged in any way in the Memorandum of Appeal, are now unassailable in revision, whether or not the evidence in support thereof was good, bad or insufficient. That being so, I fail to see how the Executing Court can be said to have committed any error of fact or of law, far less any error involving the jurisdictional question, warranting our intervention in revision.

8. There is yet another way of looking into the matter. If, as found by the Executing Court and not challenged by the Appellant/decree-holder in this appeal, there was a sale or attempted sale or an agreement to sell by the unregistered sale deed and by payment of consideration and delivery of possession in pursuance thereof to or in favour of the objector long before the attachment, then the objector was in possession of the disputed land in part-performance of the contract to sell within the meaning of Section 53-A, T.P Act, 1882, and therefore, the judgment-debtor as the transferor was “debarred from enforcing against the transferee”, i.e, the objector, “any right in respect of the property” and the decree-holder, being the attaching creditor shall also be so debarred, if a decree-holder, attaching the property of his judgment-debtor can be said to be a “person claiming under him” within meaning of Sec. 53-A, Transfer of Property Act, 1882. In the Third as well as the later Editions Mulla's Transfer of Property Act, a single Judge Madras decision in Gokara Konda Audinarayudu v. Surapureddi Manganma (AIR 1943 Mad 706) has all along been cited as the authority for the proposition that a judgment-creditor who has attached the property of the judgment-debtor, which is in possession of the intended purchaser who had contracted to purchase it from the judgment-debtor, is a “person claiming under” the transferor within the meaning of Section 53-A, Transfer of Property Act. It is really difficult to understand as to why the learned Editors (who include among other legal luminaries like Chief Justices S.R Das and M.C Setalvad) have not referred to the contrary decisions of a Division Bench of the Orissa High Court in Padamalabha v. Appalanarasamma (AIR 1952 Orissa 143) and the single Judge decision of the Bombay High Court in Maruti Gurappa v. Krishna Bala* (AIR 1967 Bom 34) laying down that a judgment-creditor, whether as an attaching-creditor or as an auction-purchaser, can never be said to be a “person claiming under” the judgment-debtor, but is really a person claiming very much against the wishes and interest of the judgment-debtor. What does the expression “any person claiming under him” mean? Construing the said expression as occurring in Section 146, Civil Procedure Code, it has been held by the Supreme Court in Saila Bala Dasi v. Nirmala Sundari Dasi (AIR 1958 SC 394 at p. 397) that the said expression is wide enough to include all persons acquiring interest in the property by any “assignment or creation or devolution of interest” within the meaning of R. 10, O. XXII, Civil Procedure Code. That as a result of an auction-purchase, the interest of the judgment-debtor devolves on the auction-purchaser is beyond any doubt and, as pointed out by the Supreme Court in Ahmedabad Municipal Corporation v. Hazi Abdul Gafur (AIR 1971 SC 1201 at p. 1202) “it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title” of the judgment-debtor. It may be that such a devolution of interest is not voluntary or by act of parties but is by operation of law; but devolution of interest as a result of death or insolvency is also a devolution by operation of law and as such there neither is nor can be any justification for restricting the expression “devolution” etc. in R. 10, O. XXII to devolution of interest by act of parties only and to exclude such devolution by operation of law. Now, if auction-purchaser is a person on whom the right, title and interest of the judgment-debtor devolve within the meaning of R. 10, and if, as held by the Supreme Court in Saila Bala Dasi's case (supra), the expression “any person claiming under” includes all persons acquiring any interest in any property by such devolution within the meaning of Rule 10, then an auction-purchaser has got to be regarded as a “person claiming under” the judgment-debtor. And if an auction-purchaser is to be so regarded as one claiming under the judgment-debtor, then the attaching creditor, who is really a link in the chain and by and through whose attachment the auction-purchaser acquires the attached property, should also be regarded as claiming under the judgment-debtor, and in that view of the matter, the judgment-creditor, that is, the appellant/decree-holder in this case, shall not as already noted, be entitled to claim and “shall be debarred from enforcing against” the claimant “any right in respect of the property” in dispute.

9. The Bombay decision in Maruti's case (AIR 1967 Bom 34) (supra) has no doubt held that “it is difficult to hold” that an auction-purchaser “steps into the shoes of the judgment-debtor”. Chief Justice Sir George Rankin, however, in Raj Kishore Gope v. Bhavtosh Chakraborty (AIR 1929 Ca) 225), held that a judgment-debtor or an “attaching creditor can have no right except his right as one standing in the shoes of his debtor” (emphasis added). If it were necessary for me to express my preference, I would have, with respect, preferred the view held and also the expression used by Sir George Rankin, as quoted hereinabove. But even without expressing any such preference, I would only say that whether a judgment-debtor or an attaching creditor “steps or stands in the shoes” of the judgment-debtor or not, he cannot obviously get a foot-wear or footing in any way larger or better than that of the judgment-debtor, cannot have any right or interest higher than the judgment-debtor and cannot do anything which the judgment-debtor could not do, in respect of the property attached. If the attaching creditor can put to auction and/or purchase therein only the right and interest of the judgment-debtor in respect of the property attached subject to all the defects and disabilities of the judgment-debtor, he cannot obviously enforce by way of attachment any claim in respect of the attached property, if the judgment-debtor has agreed to sell the same or has attempted to sell the same by an unregistered sale-deed and the proposed transferee has paid the full consideration for the transfer and has taken possession thereof before the attachment, as the judgment-debtor himself could not do so in view of the provisions of Section 53-A of the Transfer of Property Act.

10. The expressions “sword” and the “shield” have been very often used in respect of the rights of a proposed transferee claiming part-performance of the contract to transfer and it has too often been said that he can use his rights only as “shield” and not as “sword”. And from this an impression has grown that such a person can figure in curial arena only as a defendant or an opposite party to defend or protect his rights, but not as a plaintiff or a petitioner to enforce his rights. The impression, in my view, is erroneous and I am in full and respectful agreement with the view of Subba Rao, C.J (as his Lordship then was) in the Division Bench decision of the Andhra Pradesh High Court in Yenugu Achayya v. Ernaki Venkata Subba Rao (AIR 1957 Andh Pra 854) and followed by his Lordship, sitting singly, in Akram Mea v. Municipal Corporation (AIR 1957 Andh Pra 859) as hereunder:—

“Under the terms of the section, the transferor is debarred from enforcing against the transferee any rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property, whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property.

Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred thereunder should not be made to depend on the manoeuvring for positions in a Court of Law, otherwise a powerful transferor can always defeat the statutory provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as a plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword, but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield”.

11. I am afraid that these imageries of “sword” and “shield” gave rise to a good deal of misunderstanding; “sword” is not always a weapon of offence or attack but may also be used as a weapon of defence or protection. It is also not correct to say that in a Civil Suit it is the plaintiff who is the aggressor and has attacked or is trying to attack the defendant and has, therefore, used a “sword” and it is the defendant who only seeks to protect himself against such aggression and attack and therefore, has used “shield” only. More often than not, a plaintiff comes to the Court for the protection of his rights and not for enforcement, unless, as I sometime feel, every protection of right involves, in some way or other, an enforcement of that right. If a transferee under Section 53-A of the Transfer of Property Act cannot rely on his rights under that section as a plaintiff, then, as pointed out by Subba Rao, C.J, all that a transferor is required to do in order to get rid of such a transferee is to dispossess him forcefully and forcibly as in such a case the transferee would not be able to enter the portals of the Court as a plaintiff to seek protection of his rights. But this cannot be law unless we have again gone back to the darkest day when “might” alone would be only “right”. At any rate, such interpretation must be avoided unless it is absolutely unavoidable and, as it will appear from the words used in S. 53-A, and as has also been pointed by Subba Rao, C.J, in the Andhra Pradesh decisions, it is not unavoidable as there is nothing in Sec. 53-A to compel such interpretation as the only possible one. Be that as it may, in the case before us the objector has put forward his objection to the attachment, surely not as a “sword” to cut at fee root of the execution case, but only as a “shield” to protect whatever rights he had from tile onslaught of the attachment and as such he is very much entitled to rely on and invoke Section 53-A of the Transfer of Property Act in any view of the matter. And in that view of the matter, I do not find any error creeping in, far from any jurisdictional error vitiating, the impugned order, which may in any way call for our interference in revision. The Civil Miscellaneous Appeal No. 2 of 1976, treated as Revision as aforesaid, must, therefore, be dismissed.

12. This brings me to the Civil Execution Appeal No. 1 of 1976, which has been filed against the other order passed by the Executing Court on the same day striking off the execution application. After the objection petition filed by the objector was allowed and the property attached in execution was released from attachment, the execution case was obviously to fail and the appellant/decree-holder was to initiate further execution proceeding against the other properties of the judgment-debtor, if any, or his person, as he might have thought fit. As I have already held hereinbefore that the objection was rightly allowed and the property attached in execution was rightly released from the attachment, I will, therefore, have to hold further that the execution case was also rightly struck off by the Executing Court.

13. But the Executing Court, however, has advanced an additional reason for striking off the execution case and the reason is that as according to the decree-holder himself, the judgment-debtor had a total holding of less than five acres including the disputed land attached by the decree-holder and claimed by the objector to have been sold to him by the judgment-debtor, the disputed land “could not be attached or sold in view of Notification No. 3083.L.R. dated 24th March, 1954, which is still in force in this State.” The Notification No. 3083.L.R. contains a set of rules made under the Notification No. 3082.L.R. and there can be no doubt that the Executing Court really intended to refer to this Notification No. 3082.L.R. Section 3 whereof, as already noted at the outset, provides that “no Court will sell or transfer a holding or any part of a holding of a primary holder in execution of a decree, whether revenue or civil, if by such sale or transfer the said holding will become less than five acres in area.” The findings of the Executing Court that the judgment-debtor had less than five acres in all including the attached land and that, as such, it could not ordinarily be sold in execution under the provisions of the said Notification, have not been disputed by the decree-holder/appellant in his memorandum of appeal. But what he has urged is that the aforesaid provisions of the Notification prohibiting execution-sales are relaxable and ought to have been relaxed in this case by the Executing Court in support of this contention reliance has been placed solely on a decision of the then Chief Justice of this High Court in Mandal Manorath Bahun v. Dhanbir Limbu, being Civil Miscellaneous Appeal No. 1 of 1963 decided on 4th April, 1963.

14. As I have already pointed out, if the objection of the objector was rightly allowed, as I have already held it to be so hereinbefore, then this Execution case was rightly dismissed or struck off and it was not at all necessary for the Executing Court to consider this aspect and, therefore, it is not necessary for us also to consider the legality or the propriety of the finding of the Executing Court on this point. But at the initial stage of this appeal, when it was being heard by my Lord the Chief Justice sitting singly, my Lord entertained doubts as to the correctness of the decision of the former Chief Justice in Manorath's case and referred these two cases to this Division Bench, so that the decision in Manorath's case might be reviewed and reconsidered, if necessary. And in that view of the matter and also in view of the importance of this question raised by the decree-holder/appellant and the previous decisions of this Court as aforesaid, I have thought it advisable to deal with this aspect also.

15. The Notification No. 3082.L.R. may be reproduced hereunder:—

“LAND REVENUE DEPARTMENT

Notification No. 3082.L.R.

1. Subject: To provide for the maintenance of economic holdings.

2. Definitions: The definitions of Land Revenue Department. Notification No. 1208.L.R. dated 20th May, 1950, will apply.

3. Sale of land in execution— No Court will sell or transfer a holding or any part of a holding of a primary holder in execution of a decree, whether revenue or civil, if by such sale or transfer the said holding will become less than five acres in area:

Provided that sale of land to meet Government dues will be excluded from the purview of this Notification.

4. Exceptions to Section— The provisions of Section 3 may be relaxed by the Chief Executive Officer or other officer specified for the purpose.

5. Restrictions on purchase— No person who already has a holding or holding of or exceeding 20 acres in area may purchase land sold in execution of revenue or civil decree; provided that this provision may be relaxed by the executing Court if no purchaser comes forward within two months of the publication of the sale: Provided that if a prospective purchaser already has 20 acres of land or more, he may be allowed to purchase land in execution proceedings in the name of his dependent wife, brother, son or daughter or other collateral living jointly with him up to a maximum of 10 acres only in the name of such dependent.

6. Revenue Order I of 1917— No Court will effect a sale in execution, whether revenue or civil; against the provisions of Revenue Order No. 1 of 1917.

No person who is not a Sikkim subject may purchase agricultural land in a Court sale under this Notification.”

16. Section 3 of the Notification No. 3083.L.R. providing for the grounds on which the provisions of Section 3 of the Notification No. 3082.L.R., prohibiting sale of land in execution, may be relaxed, read as hereunder:—

“Notification No. 3083.L.R.

3. (a) Section 3 may be relaxed on one or more of the following grounds only:—

(i) if the primary holder in question is without an heir;

(ii) if the said primary holder's main occupation or means of support is not agriculture and provided that such means are adequate for the maintenance of himself and his dependents.

(iii) if the piece of land proposed to be sold or transferred is at such a distance from his house and other lands that it cannot be managed economically; provided that in this case and none other the said holder is left with a minimum of three acres.

(b) The executing Court may accept such proof or cause such inquiry to be made as it considers necessary in the circumstances of the case before relaxing the provisions of the Notification under Section 3.”

17. There can be obviously no doubt that these two Notifications deal with and prohibit sales or transfers in execution of decree and not to voluntary sales or transfers by act of parties. No authority can be necessary for this too obvious a proposition unmistakably and irresistibly emanating from the provisions of the Notifications quoted hereinabove as held by us in Ghimirey Lepcha v. Karma Wangyal (1978 Sikkim LJ 16). At one stage both my Lord the Chief Justice and myself had been wondering as to why the Legislative authority of Sikkim, which dearly demonstrated its anxiety to maintain “economic holding” and to prevent holdings of the primary holders having less than five acres of land from being reduced further and becoming uneconomic as a unit of cultivation, thought it fit to put embargo on sales or transfers of such holdings only when such sales or transfers would take place in execution of decrees, but did not think it necessary to intervene and interdict when such sales or transfers would be made by voluntary acts of parties. I have not been able to find any provision in any Sikkim Law, including the Revenue Order I of 1917 and the Notification No. 1208.L.R., dated 20th May, 1950, referred to in the Notification under consideration being No. 3082.L.R., prohibiting any such voluntary sales or transfers by holders of lands holding less than five acres in area. May be that the Legislative authority thought that these small primary holders required protection when their small holdings were going to be sold against their will by the coercive process of sales in execution, but need not be protected if they decided to bring their ruination by their own acts by making voluntary transfers. If there was any such law, then it would have been necessary for us to consider as to whether the alleged sale in favour of the objector by the judgment-debtor which was the foundation of the objection allowed by the executing court and upheld by me, was legal and could be a valid foundation for such objection. But, as, already noted, there being no such law, the question could not and did not arise for our consideration.

18. Section 4 of the Notification No. 3082.L.R., as quoted hereinabove, clearly provides that the provisions of Section 3 thereof, prohibiting sales in execution of decree “may be relaxed by the Chief Executive Officer or other officer specified for the purposes”. There can be no doubt that conferment of such absolute and unfettered power without providing any guidelines as to how such power is to be exercised would have been bad for excessive or unauthorised delegation of Legislative power. One of the most unpleasant functions to be performed by the Courts is to strike down a law made by a legally competent Legislative authority on the ground of illegality, but we have been relieved of this unpleasant task in this case for two reasons. Firstly, Clause (k) of Article 371(F) of the Constitution has not only continued all the earlier Sikkim laws in force, but, read with the non obstante Clause contained in the opening words of the Article, has clothed them with full proof immunity from all Constitutional attacks “notwithstanding anything in this Constitution”, and, therefore, this Notification No. 3082.L.R. is invulnerable to all the other provisions of the Constitution, however peremptory the provisions and however violent the violation may be. Secondly, Rule 3 of the later Notification No. 3083.L.R. providing for the grounds for exemptions, though made under the powers conferred by the earlier Notification No. 3082.L.R., has also been made by the very same Legislative authority and not by any subordinate or delegated authority and, as such, the question of any excessive or unauthorised delegation cannot obviously arise.

19. Be that as it may, Rule 3 of the Notification No. 3083.L.R. quoted hereinabove, by using the word “only” has made it irresistibly clear that Section 3 of the Notification No. 3082.L.R. can be relaxed only on any of those and on no other grounds. In Manorath's case (C.M.A No. 1 of 1963, D/- 4-4-1963) (Sikkim) however, the then learned Chief Justice ordered relaxation, not on any of the grounds mentioned in Rule 3, but solely on the ground that as the judgment-debtor in that case was attempting to transfer his lands by voluntary sales, without caring to satisfy the decretal dues of the decree-holder, which in the view of the learned Chief Justice was “a clear device to defeat the just claim of the D.H”, it was according to the Chief Justice, “a fit case in which the provisions of Section 3 should be relaxed by the executing Court since the Notification is intended to protect the interest of the judgment-debtor in retaining the land and not helping him to practising fraud by selling it”. I wish I could uphold this judicial creativity of the then learned Chief Justice, but I am sorry that I have got to regret my inability. A learned Jurist has observed (Baxi in his introduction to Justice Mathew's “Democracy, Equality and Freedom”) that “in this last quarter of the Twentieth Century, very few people would venture to contest or deny the elementary proposition that Appellate Judges not merely declare the law or apply it, but that they also make or create law.” But, however a votary of judicial law-making I would like to be, I do not think that a Judge can create a new power for the Court where the Legislative authority has expressly and categorically proclaimed that the provision made by it are the sole repository of all powers, by using the expression “only”, as in Rule 3 here, or similar other expressions. I have, therefore, no doubt and this I say with due respect, that Manorath's case was wrongly decided.

20. I would, however, like to point out further that in this case before us, there is nothing on record from which we can conclude that the sale or the alleged sale by the judgment-debtor to and in favour of the objector, made even before the filing of the suit resulting in the decree under execution, was made to defeat such claim under the decree and, therefore, the decision in Manorath's case, even if it was correctly decided, would not have applied to this case. I would, therefore, hold that the appellant is wrong in urging that the executing Court was wrong in not relaxing the provisions of Section 3 of the Notification No. 3082.L.R. in accordance with the decision in Manorath's case.

21. For all these reasons, I am of the opinion that the execution case was rightly struck off and therefore this appeal should be and shall stand dismissed. But I would make no order as to costs.

Man Mohan Singh Gujral, C.J:— I agree.

Appeal dismissed.