{"id":271966,"date":"1979-02-25T00:00:00","date_gmt":"1979-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/zila-singh-ors-vs-hazari-ors-on-25-february-1979"},"modified":"2016-09-16T23:31:35","modified_gmt":"2016-09-16T18:01:35","slug":"zila-singh-ors-vs-hazari-ors-on-25-february-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/zila-singh-ors-vs-hazari-ors-on-25-february-1979","title":{"rendered":"Zila Singh & Ors vs Hazari & Ors on 25 February, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Zila Singh & Ors vs Hazari & Ors on 25 February, 1979<\/div>\n
Equivalent citations: 1979 AIR 1066, 1979 SCR (3) 222<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nZILA SINGH & ORS.\n\n\tVs.\n\nRESPONDENT:\nHAZARI & ORS.\n\nDATE OF JUDGMENT25\/02\/1979\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nSHINGAL, P.N.\n\nCITATION:\n 1979 AIR 1066\t\t  1979 SCR  (3) 222\n 1979 SCC  (3) 265\n CITATOR INFO :\n R\t    1991 SC 373\t (5)\n\n\nACT:\n     Code of Civil Procedure 1908-S. 47, Or. XX r. 14(1)(b),\nOr. XXI\t r. 16\tand S.\t146-Whether purchaser of land from a\npre-emptor who\thas secured  a decree  for  pre-emption\t and\npossession, could execute the decree to obtain possession of\nthe land.\n\n\n\nHEADNOTE:\n     The original  vendor of  the lands in dispute sold them\nto the\tfirst vendee. In the meantime three decrees for pre-\nemption were  passed in favour of the pre-emptor and against\nthe vendor  and his vendees. After satisfying the conditions\nimposed in  the decrees regarding deposit of certain sums of\nmoney the pre-emptor sold the lands to the appellants.\n     In the  execution petition\t filed by the appellants the\noriginal vendor\t as well  as the  first vendees\t filed their\nobjections  challenging\t the  right  of\t the  appellants  to\nexecute the  decrees on\t the ground  that the  right of pre-\nemption being  a  personal  right  of  the  pre-emptor,\t the\ndecrees\t could\t not  be   assigned  and  that\tthe  present\nappellants being subsequent vendees from the pre-emptor were\nnot entitled to execute the decrees granted in his favour.\n     Rejecting the  objections\tof  the\t first\tvendees\t the\nexecuting court\t held that  the appellants  were entitled to\nexecute the decrees.\n     On appeal\tthe Additional\tDistrict Judge held that the\npre-emptor having  complied with the directions contained in\nthe decree his title to the lands was perfected and that the\nappellants were entitled to recover possession under s. 146,\nCPC.\n     In execution  second appeals  of the  first vendees the\nHigh Court  held that  the  right  of  pre-emption  being  a\npersonal right,\t the  decree  for  pre-emption\twould  be  a\npersonal decree\t and was not assignable and even if the pre-\nemptor had complied with the provisions of Or. XX r. 14 CPC,\nthe appellants\twould not  be entitled to execute the decree\nfor possession\tbecause the  decree was\t not assigned and s.\n146 would not help the present appellants.\n     Allowing the appeals,\n^\n     HELD: 1(i)\t The question  whether\tthe  right  of\tpre-\nemption was  a personal\t right or  it created an interest in\nproperty was concluded by the decision of this Court between\nthe same  parties in  an earlier  round of  litigation.\t The\nearlier\t litigation   being  inter  partes  and,  therefore,\nbinding on  the respondents,  it cannot\t be reopened  or re-\nexamined at the instance of the respondents. [226 H-227 B]\n     (ii) The  contention that\tdecree in  a suit  for\tpre-\nemption is a personal decree and creates no interest in land\nmust fail. [228 B]\n     (iii) The\tdistinction between  a voluntary inter vivos\ntransfer and  an involuntary  transfer such  as\t by  way  of\ninheritance is\timmaterial as  for as  the present  case  is\nconcerned because the question in terms disposed of by\n223\nthis Court in the earlier case is that the pre-emptor having\ncomplied with O. XX, r. 14 had become the owner of the lands\nand his\t legal representatives\ton his\tdeath  were  rightly\nsubstituted in the proceedings. [227 H-228 A]\n     Hazari &  Ors. v.\tNeki  &\t Ors<\/a>.,\t[1968]\t2  SCR\t833;\nreferred to.\n     Section 146  CPC provides\tthat where  some proceedings\ncould be  taken or  application could  be made\tby a  person\nunder the  Code of Civil Procedure any other person claiming\nunder  him   is\t entitled  to  make  and  maintain  such  an\napplication. The  only limitation  on the  exercise of\tthis\nright is  in the  expression, 'save as otherwise provided by\nthis Code,' occurring in the section. [229 E]\n     3. If the assignee of a decree can avail himself of the\nprovisions contained  under Or.\t XXI R.\t 16 by\testablishing\nthat he\t is such  an assignee  he must only avail himself of\nthat provision.\t But if he fails to establish his title as a\ntransferee by  assignment in  writing or by operation of law\nwithin the  meaning of\tOr. XXI\t r. 16,\t there is nothing in\nthat provision\twhich prohibits him from availing himself of\ns. 146 if the provision of that section can be availed of by\nhim. [230 E]\n     Jugal Kishore  Saraf v. Raw Cotton Co. Ltd<\/a>., [1955] SCR\n1369; referred to.\n     In the  instant case though the sale deed in respect of\nland would show that the decree itself was not assigned, the\nlands having been sold by the decree-holder after perfecting\nhis title  and purchased  by the  present  appellants,\tthey\nwould be  persons claiming  under  the\toriginal  pre-emptor\ndecree-holder and  if he  could have made an application for\nexecution of  the decree  as decree-holder, the applications\nfor  execution\t by  the   present   appellants\t  would\t  be\nmaintainable under  s. 146,  and they are therefore entitled\nto execute the decrees for possession. [231 C-D]\n     Smt. Saila\t Bala Dassi  v. Smt. Nirmala Sundari Dassi &\nAnr<\/a>., [1958] SCR 1287; referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1806-
\n1808 of 1969.\n<\/p>\n
     From the  Judgment and  Order dated  30-5-1969  of\t the
\nPunjab and  Haryana High  Court in  Executive Second Appeals
\nNos. 1131-1133 of 1968.\n<\/p>\n
     H.K. Puri and V.K. Bahl for the Appellant.\n<\/p>\n
     Janardhan Sharma and Jitendra Sharma for the Respondent
\n     The Judgment of the Court was delivered by
\n     DESAI, J.\tThese appeals  by certificate  under Article
\n133(1) (c)<\/a>  of the Constitution granted by the High Court of
\nPunjab &  Haryana arise from three Execution Petitions filed
\nby  the\t present  appellants  for  executing  three  decrees
\nobtained by one Neki (since deceased) in three
\n224<\/span>
\nsuits bearing Nos. 313, 360 and 369 of 1961 filed by him for
\npre-emption, to\t recover physical  possession of  the  lands
\ninvolved in  the suits.\t The decrees  in favour of Neki were
\nconfirmed finally  by this Court in Civil Appeals Nos. 1148,
\n1656 and  2341 of  1966 decided\t on 25th  January 1968.\t The
\nJudgment of  this Court is reported in Hazari & Ors. v. Neki
\n& Ors<\/a>.(1) The facts which ultimately resulted in decrees for
\npre-emption in\tfavour of  Neki are  fully set\tout at pages
\n834-835 of  the reported  judgment and\trepeating  the\tsame
\nwould merely  add to the length of this judgment. Suffice to
\nstate that  there is no dispute that decrees for pre-emption
\nwere passed  in favour\tof Neki\t against the original vendor
\nDhara Singh  and his  vendees  Hazari  and  others  and\t the
\nsatisfaction of\t the condition in the decrees of pre-emption
\nfor payment  or deposit\t of the\t amounts as  directed by the
\nCourt within  the stipulated  time is  not questioned in the
\npresent proceedings.\n<\/p>\n
     It appears\t that the  trial court decreed the suits for
\npre-emption  in\t  favour  of   Neki  on\t 7th  November\t1962
\nsimultaneously imposing\t the condition\tto  deposit  certain
\namounts in  the three  suits by or before 3rd December 1962.
\nThe various amounts were duly deposited in the three decrees
\nby Neki,  the decree  holder, on  3rd  December\t 1962.\tSoon
\nthereafter, on\t5th December  1962 Neki\t sold the  lands  in
\nrespect of  which he  got the  decrees\tto  Zila  Singh\t and
\nothers, the  present appellants.  The present appellants are
\nsubsequent vendees  but they  will be  referred\t to  as\t the
\nappellants in  this judgment.  The former  vendees would  be
\nreferred to  as ‘first\tvendees’, the  sale in\twhose favour
\ngave rise  to the  cause of action for pre-emption in favour
\nof Neki against the original vendor Dhara Singh.\n<\/p>\n
     After the\tsale in\t favour of  the present\t appellants,
\nthey  applied  to  be  joined  as  parties  to\tthe  appeals
\npreferred by  the first vendees against the decrees for pre-
\nemption which  were then  pending in  the High Court and the
\nCourt directed\tby its\torder dated 13th July, 1963 that the
\npresent appellants  be joined  as  parties  to\tthe  appeals
\nsubject to  just legal exceptions. The appellants then filed
\nExecution Applications\tNos. 295,  296,\t 297\/64\t seeking  to
\nexecute the  decrees to\t recover actual\t possession  of\t the
\nlands purchased\t by them  from Neki.  Original Vendor  Dhara
\nSingh  and   the  first\t  vendees  filed   their  objections
\nchallenging the\t right of the present vendees to execute the
\ndecrees. Principal  contention raised was that the sale deed
\nof lands  in favour  of\t the  appellants  did  not  envisage
\nassignment of  the decrees and that the right of pre-emption
\nbeing a\t personal right,  the decrees  could not be assigned
\nand, therefore,\t the present  appellants who were subsequent
\nvendees from  pre-emptor Neki,\twere not entitled and had no
\nlocus standi to execute
\n225<\/span>
\nthe decrees  granted in\t favour of Neki. The executing court
\nafter examining the relevant provisions contained in section
\n47 and\tOrder XXI,  Rule 16,  of the Code of Civil Procedure
\nrejected the objections raised by the first vendees and held
\nthat the  present appellants  were entitled  to execute\t the
\ndecrees and  directed warrant  for possession  to be issued.
\nThe first  vendees preferred three appeals being Nos. 25\/14,
\n26\/14 and 27\/14 of 1968 to the District Court at Rohtak. The
\nlearned Additional  District Judge  who heard these appeals,
\nby a  common order  rejected the  appeals and  confirmed the
\norder of  the trial  Court  observing  that  the  pre-emptor
\nhaving deposited  the purchase\tprice  as  directed  by\t the
\nCourt, in  accordance with  the terms  of the  decrees,\t his
\ntitle to the lands was perfected from the date of deposit as
\nprovided in Order XX, Rule 14 (1)(b), C.P.C., the appellants
\nas purchasers  of lands\t from the pre-emptor in whose favour
\nthe decrees for pre-emption including the one for possession
\nhad become  final, were entitled to recover possession under
\nsection 146 C.P.C.\n<\/p>\n
     Hazari, Amar  Singh and  Bhan Singh  the first  vendees
\npreferred three\t Execution Second Appeals Nos. 1131,1132 and
\n1133\/68 to  the High  Court of\tPunjab & Haryana. When these
\nappeals came  up before\t a learned  single Judge of the High
\nCourt it  was contended\t that in view of the decision in Ram
\nSingh &\t Ors. v.  Gainda Ram & Ors, The<\/a> assignee of a holder
\nof a  decree for  pre-emption cannot  seek the assistance of
\nthe Court  for executing  the decree for pre-emption because
\nthe decree is a personal one and, therefore, non-assignable.
\nOn behalf  of the  present appellants  who were\t respondents
\nbefore the  High Court,\t reliance was placed on the decision
\nin Satyanarayana  v. Arun  Naik and Ravi Parkash and Anr. v.
\nChunilal &  Ors..  The\tlearned\t single\t Judge\thad  certain
\nreservations about  the correctness  of the  decision in Ram
\nSingh’s case  and, therefore,  he considered  it prudent  to
\nrefer the  matter to a Division Bench. The matter ultimately
\nhad to be referred to a Full Bench because there was another
\ndecision in  Mehrkhan and  Shah Din  v. Ghulam\tRasul, which
\nalso required  reconsideration. That  is how the matter came
\nbefore a Full Bench.\n<\/p>\n
     The  Full\t Bench\tformulated   the  question  for\t its
\nconsideration as under:-\n<\/p>\n
\t  “Whether the\tpurchaser of  land from a pre-emptor
\n     of\t which\tthe  pre-emptor\t has  become  the  owner  in
\n     pursuance of  a pre-emption decree after complying with
\n     the
\n226<\/span>
\n     provisions of  Order XX,  Rule 14\tCivil Procedure Code
\n     could execute  the decree in order to obtain possession
\n     of the land purchased by him.”<\/p><\/blockquote>\n
     All the  three Judges  of the Full Bench wrote separate
\nopinions. D. K. Mahajan, J. was of the opinion that assuming
\nthat a\tdecree of  pre-emption is  a  personal\tdecree,\t the
\ntransferees of\tthe land from the pre-emptor whose title was
\nperfected by  deposit as envisaged in O. XX, Rule 14 (1) (b)
\nwere entitled  to execute the decree granted by the Court in
\nfavour of  the pre-emptor  and can  seek assistance  of\t the
\nCourt  for  recovering\tactual\tpossession  from  the  first
\nvendees who  had no  right to  continue in possession, apart
\nfrom O.\t XX, Rule  16 under section 146 C.P.C. P. C. Pandit,
\nJ. and\tH. R.  Sodhi, J.,  the other two members of the Full
\nBench were  of the  opinion that  the right  of\t pre-emption
\nbeing a\t personal right,  a decree for pre-emption will be a
\npersonal decree\t and is\t not assignable and even if title to
\nthe land  passed to  the vendees who purchased the land from
\nthe  pre-emptor\t after\tthe  pre-emptor\t complied  with\t the
\nprovisions contained in Order XX, Rule 14 yet they would not
\nbe entitled  to execute\t the decree  for possession  because
\ndecree is  not assigned\t and section  146 would not help the
\npresent\t appellants.   In  accordance\twith  this  majority
\nopinion, the  appeals preferred\t by the\t first vendees\twere
\nallowed and  the applications  for execution  filed  by\t the
\npresent appellants were dismissed.\n<\/p>\n
     The High  Court granted a certificate under Article 133
\n(1) (c)<\/a>\t of the\t Constitution because  in  its\topinion\t the
\nquestion  involved   in\t the  appeals  was  of\tconsiderable
\nimportance and\twas likely  to arise  frequently and that it
\ndeserved to be decided finally by the Supreme Court.\n<\/p>\n
     Mr.  Janardan   Sharma,   learned\t counsel   for\t the
\nrespondents urged that looking to the scheme of ss. 4, 6 and
\n15  of\t the   Punjab\tPre-emption   Act,   1930,   it\t  is
\nincontrovertible that foundation of the right of pre-emption
\nbeing close  personal relationship,  it is  a personal right
\nand can\t be exercised  only by\tthe person  in whom it vests
\nunder the  law and  if in  exercise of\tsuch  right  such  a
\nqualified person  seeks to pre-empt a sale by instituting an
\naction in  a Court  of law,  the resultant decree would be a
\npersonal decree. Urged Mr. Sharma further that if the decree
\nis a  personal one,  obviously it cannot be assigned and the
\nassignee gets no interest in a decree so as to enable him to
\nexecute the  decree. The  question whether the right of pre-
\nemption conferred  by the  provisions of  Punjab Pre-emption
\nAct, 1913,  is a personal right or it creates an interest in
\nthe property is
\n227<\/span>
\nno more\t res integra  and is concluded by a decision of this
\nCourt between  the very\t parties  who  are  parties  to\t the
\npresent appeals,  in an\t earlier round of litigation wherein
\nthe first  vendees, the\t present respondents  had challenged
\nthe right of Neki deceased pre-emptor to obtain a decree for
\npre-emption. Apart from the fact that the point is concluded
\nby a decision of a Bench of three Judges of the Court, it is
\ninter-partes and, therefore, binding on the respondents whom
\nMr. Janardan  Sharma represents\t and at\t the instance of the
\nrespondents it\tcannot be  re-opened or\t re-examined. As the
\nmatter calls for no examination at the hands of the Court it
\nwould suffice  to quote\t what has been held in Hazari & Ors.
\nv. Neki\t &  Ors.  Ramaswami,  J<\/a>.  speaking  for\t the  Court,
\nobserved as under:\n<\/p>\n
\t  “In support  of these appeals, learned counsel put
\n     forward the  argument that\t the  right  of\t pre-emption
\n     claimed by Neki deceased plaintiff was a personal right
\n     which died\t with him  upon\t his  death  and  the  legal
\n     representatives of Neki were not entitled to be granted
\n     a decree  for pre-emption.\t The argument  was that\t the
\n     statutory right of pre-emption under the Punjab Act<\/a> was
\n     not a  heritable right  and no  decree for\t pre-emption
\n     should have been passed by the lower court in favour of
\n     the legal representatives as representing the estate of
\n     Neki. We  are unable to accept the argument put forward
\n     by the  appellants. It  is not  correct to say that the
\n     right of pre-emption is a personal right on the part of
\n     the pre-emptor  to get  the re-transfer of the property
\n     from the vendee who has already become the owner of the
\n     same. It  is true that the right of pre-emption becomes
\n     enforceable only  when there  is a\t sale but  the right
\n     exists antecedently  to the sale, the foundation of the
\n     right being  the avoidance\t of the\t inconveniences\t and
\n     disturbances which would arise from the introduction of
\n     a stranger into the land. The correct legal position is
\n     that  the\t statutory  law\t of  pre-emption  imposes  a
\n     limitation\t or  disability\t upon  the  ownership  of  a
\n     property to  the extent  that it  restricts the owner’s
\n     right of  sale and\t compels him to sell the property to
\n     the person\t entitled to  pre-emption under the statute.
\n     In other  words, the  statutory  right  of\t pre-emption
\n     though not\t amounting to  an interest  in the land is a
\n     right which  attaches to  the land\t and  which  can  be
\n     enforced against  a purchaser by the person entitled to
\n     pre-empt.”<\/p><\/blockquote>\n
     Mr. Janardan Sharma, however, sought to distinguish the
\nposition under\ta voluntary  inter  vivos  transfer  and  an
\ninvoluntary
\n228<\/span>
\ntransfer such  as by  way of  inheritance and  urged that in
\nthis  case  Neki  having  sold\tthe  lands  to\tthe  present
\nappellants by  sale inter vivos they cannot enjoy the fruits
\nof the\tdecree. This distinction is immaterial as far as the
\npresent case  is concerned  because the\t question  in  terms
\ndisposed of  by the  Court is that Neki having complied with
\nOrder XX, Rule 14, had become the owner of the lands and his
\nlegal representatives  on his death were rightly substituted
\nin the\tproceedings. The  contention, therefore, that decree
\nin a  suit for\tpre-emption is a personal decree and creates
\nno interest in land, the subject matter of pre-emption, must
\naccordingly fail.\n<\/p>\n
     The next  contention is  that the\tdeed evidencing\t the
\nsale of\t lands Ext.  D-1 dated\t15th February,\t1963  merely
\ntransferred the\t lands but  does not  purport to  assign the
\ndecree, then  in the  absence  of  such\t an  assignment\t the
\npurported assignee  cannot execute the decree in view of the
\nprovision contained  in Order  XXI, Rule  16, and therefore,
\nthe execution  applications at\tthe instance  of the present
\nappellants are\tnot maintainable.  The\tAdditional  District
\nJudge did  not decide  the contention  whether the Execution
\nApplications at\t the instance  of  the\tpresent\t appellants,
\nnamely, subsequent  transferees were  maintainable under  O.
\nXXI, Rule  16, because in his opinion the present appellants
\nwere entitled to execute the decree under section 146 of the
\nCode of Civil Procedure. The majority view of the High Court
\nis that\t the subsequent transferees, the present appellants,
\nwere not  entitled to  execute the decree under O. XXI, Rule
\n16 because  the decree\tfor pre-emption being a personal one
\ncannot\tbe   assigned  and  alternatively  if  it  could  be
\nassigned, as  a matter of fact, it has not been assigned and
\ntherefore the  applications for\t execution at their instance
\nare not\t maintainable. They  were further  of the  view that
\nsection 146<\/a>  would not\tassist the  appellants as provisions
\ncontained in  O. XXI,  Rule 16\tbeing  a  specific  contrary
\nprovisions, section 146<\/a> cannot be invoked.\n<\/p>\n
     Order XXI,\t Rule 16 permits an execution of a decree at
\nthe instance  of an  assignee by  transfer of  a decree, the
\nassignment may\tbe in  writing or by operation of law and if
\nsuch  an   application\tis  made,  the\tcourt  to  which  an
\napplication is\tmade shall  issue a notice to the transferor
\nof the\tdecree and the judgment debtor and the decree cannot
\nbe executed  until the Court heard their objections, if any,
\nto its\texecution.  Section  47\t C.P.C.\t provides  that\t all
\nquestions arising  between the\tparties to the suit in which
\nthe decree was passed, or their representatives, relating to
\nthe execution, discharge or satisfaction of the decree shall
\nbe determined by the court executing the decree and not by a
\nseparate suit. Explanation appended to
\n229<\/span>
\nsection 47<\/a>  provides that  for the  purposes of that section
\namongst others\ta purchaser  at a  sale in  execution of the
\ndecree is  deemed to  be a  party to the suit. It would have
\nbeen  interesting   to\texamine\t the  question\twhether\t the
\npurchaser of land from a pre-emptor in whose favour a decree
\nfor pre-emption\t has been  passed and  who subsequent to the
\ndecree complied\t with the  requirement of  Order XX, Rule 14
\nand thereby  perfected his title would be, on the analogy of
\na purchaser  at a  sale in execution of a decree, a party to
\nthe suit  or at\t any rate  the representative of the decree-
\nholder or  a successor in interest of the decree-holder, but
\nas we are of the opinion that the applications for execution
\nfiled by  the  present\tappellants  are\t maintainable  under
\nsection 146  C.P.C. the\t larger question need not be decided
\nin these appeals.\n<\/p>\n
     Section 146<\/a> reads as under:\n<\/p>\n
\t  “Save as otherwise provided by this Code or by any
\n     law for  the time\tbeing in force, where any proceeding
\n     may be  taken or  application made\t by or\tagainst\t any
\n     person,  then  the\t proceeding  may  be  taken  or\t the
\n     application may  be  made\tby  or\tagainst\t any  person
\n     claiming under him.”\n<\/p>\n
     Shorn of  unessentials the\t section provides that where
\nsome proceeding\t could be taken or application could be made
\nby a  person under  the Code  of Civil\tProcedure any  other
\nperson claiming\t under him  is entitled to make and maintain
\nsuch an\t application. The limitation on the exercise of this
\nright is  to be\t found in the expression, ‘save as otherwise
\nprovided by  this Code’.  It would  mean that  if  the\tCode
\npermits a  proceeding to  be taken  or an  application to be
\nmade by\t a party,  then in the absence of a provision to the
\ncontrary, section  146<\/a> would  enable any  one claiming under
\nsuch person as well to make the same application. The object
\nbehind the  section appears to be to facilitate the exercise
\nof right  by a\tperson claiming under the person whose right
\nto maintain an application is beyond dispute.\n<\/p>\n
     Section 146<\/a>  came in for consideration in Jugal kishore
\nSaraf v.  Raw Cotton  Co. Ltd.\tIn<\/a> that\t case the facts were
\nthat the  plaintiffs in\t a pending suit for recovery of debt
\ntransferred to\tanother person\tall book and other debts due
\nto them\t including  the\t debt  involved\t in  the  suit.\t The
\ntransferees did\t not apply  to be  joined as  parties in the
\npending suit  and the  suit continued  in the  name  of\t the
\noriginal plaintiffs and ended in a decree. Subsequently the
\n230<\/span>
\ntransferees as\tdecree-holders applied\tfor execution of the
\ndecree against\tthe judgment-debtor  and upon a notice being
\nissued, a contention was raised that the application was not
\nmaintainable under  Order XXI,\tRule 16.  One submission was
\nthat  even   if\t the   application  for\t execution  was\t not
\nmaintainable under  O. XXI,  Rule 16,  it would certainly be
\nmaintainable at\t the instance  of  the\ttransferees  of\t the
\noriginal debt  under section  146<\/a>. Accepting this contention
\nDas, J.\t observed  that\t a  person  may\t conceivably  become
\nentitled to  the  benefits  of\ta  decree  without  being  a
\ntransferee of  the decree  by assignment  in writing  or  by
\noperation of  law. In  that situation the person so becoming
\nthe owner  of the  decree may  well be\tregarded as a person
\nclaiming under\tthe decree-holder.  It was  further held  in
\nthat case  that the  transferees of  the debt  derived their
\ntitle to  the debt by transfer from the transferors and when
\nthe decree  was passed\tin relation to decree they must also
\nbe regarded  as persons\t claiming under\t the transferors and
\naccordingly they  would be  entitled to\t make an application
\nfor execution  under  section  146  of\tthe  Code  of  Civil
\nProcedure.  Bhagwati,\tJ.  in\ta  separate  and  concurring
\njudgment on  this point\t observed that the only meaning that
\ncan  be\t assigned  to  the  expression\t‘save  as  otherwise
\nprovided by  this Code’\t in sec. 146 is that if a transferee
\nof the\tdecree can  avail himself of the provision contained
\nunder Order  XXI, Rule\t16 by establishing that he is such a
\ntransferee he must only avail himself of that provision. But
\nif he  fails to\t establish his\ttitle  as  a  transferee  by
\nassignment in  writing or  by operation\t of law\t within\t the
\nmeaning of  O.\tXXI,  Rule  16\tthere  is  nothing  in\tthat
\nprovision which\t prohibits  him\t from  availing\t himself  of
\nsection 146<\/a>  if the provision of that section can be availed
\nof by  him. It\twould thus  appear that\t if the sale-deed in
\nrespect of  land on  its proper construction would show that
\nthe decree itself was assigned obviously the application for
\nexecution would\t be maintainable  under O. XXI, Rule 16. But
\nif the\tappellants do not fall within the four corners of O.
\nXXI, Rule  16 and  they appear\tnot to\tfall within the four
\ncorners of  it, because\t though the land, the subject matter
\nof the\tdecree is  sold to  appellants, the decree itself is
\nnot assigned,  they would  nonetheless be  able to  maintain
\napplication for\t execution  under  section  146<\/a>\t as  persons
\nclaiming under\tthe decree-holder.  The\t respondents  cannot
\nhave both the ways. If the deed evidenced transfer of decree
\nby assignment  then O.\tXXI, Rule  16 would be attracted but
\nif, as\tit appears,  there  is\tno  transfer  of  decree  by
\nassignment, the\t lands having been sold by the decree-holder
\nafter perfecting  his title  and purchased  by\tthe  present
\nappellants they would be persons claiming under the original
\npre-emptor decree holder Neki and if Neki could have made an
\napplication for
\n231<\/span>
\nexecution  of  the  decree  as\tdecree-holder,\tthe  present
\nappellants, as\tpurchasers of land from Neki would certainly
\nbe claiming under Neki and, therefore, their application for
\nexecution would certainly be maintainable under section 146<\/a>.
\nIn this connection it would be advantageous to refer to Smt.
\nSaila  Bala   Dassi  v.\t  Smt.\tNirmala\t Sundari  Dassi\t and
\nAnother<\/a>(1) wherein  it has  been in  terms held that section
\n146<\/a> was\t introduced for\t the first  time in  Civil Procedure
\nCode 1908  with the  object of\tfacilitating the exercise of
\nrights by  persons  in\twhom  they  came  to  be  vested  by
\ndevolution or  assignment and  being a\tbeneficent provision
\nshould be  construed liberally\tso as to advance justice and
\nnot in\ta restricted  or technical  sense. Viewed  from this
\nangle the  present  appellants\tmust  succeed  because\tthey
\npurchased land from pre-emptor Neki and the validity of sale
\nbeing now  beyond dispute,  they are  persons claiming under
\nNeki whose  right to  execute the  decree was never disputed
\nand, therefore,\t appellants claiming  under the\t vendor Neki
\nwould be able to maintain an application for execution under
\nsection 146  of the  Code of Civil Procedure. Appellants are
\nthus entitled to execute the decree for possession.\n<\/p>\n
     Accordingly these\tthree appeals  are allowed  and\t the
\ndecision of the High Court dated 30th May, 1969 in Execution
\nAppeals Nos.  1131, 1132  and 1133  of 1968 is set aside and
\nthe decision  of the  Additional District  Judge dated\t15th
\nJuly, 1968 is restored, but in the circumstances of the case
\nthere would be no order as to costs.\n<\/p>\n
N.V.K\t\t\t\t\t    Appeals allowed.\n232<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Zila Singh & Ors vs Hazari & Ors on 25 February, 1979 Equivalent citations: 1979 AIR 1066, 1979 SCR (3) 222 Author: D Desai Bench: Desai, D.A. PETITIONER: ZILA SINGH & ORS. Vs. RESPONDENT: HAZARI & ORS. DATE OF JUDGMENT25\/02\/1979 BENCH: DESAI, D.A. BENCH: DESAI, D.A. SHINGAL, P.N. CITATION: 1979 AIR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-271966","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nZila Singh & Ors vs Hazari & Ors on 25 February, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/zila-singh-ors-vs-hazari-ors-on-25-february-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Zila Singh & Ors vs Hazari & Ors on 25 February, 1979 - 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