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 1066 1979 SCR (3) 222
1979 SCC (3) 265
CITATOR INFO :
R 1991 SC 373 (5)
ACT:
Code of Civil Procedure 1908-S. 47, Or. XX r. 14(1)(b),
Or. XXI r. 16 and S. 146-Whether purchaser of land from a
pre-emptor who has secured a decree for pre-emption and
possession, could execute the decree to obtain possession of
the land.
HEADNOTE:
The original vendor of the lands in dispute sold them
to the first vendee. In the meantime three decrees for pre-
emption were passed in favour of the pre-emptor and against
the vendor and his vendees. After satisfying the conditions
imposed in the decrees regarding deposit of certain sums of
money the pre-emptor sold the lands to the appellants.
In the execution petition filed by the appellants the
original vendor as well as the first vendees filed their
objections challenging the right of the appellants to
execute the decrees on the ground that the right of pre-
emption being a personal right of the pre-emptor, the
decrees could not be assigned and that the present
appellants being subsequent vendees from the pre-emptor were
not entitled to execute the decrees granted in his favour.
Rejecting the objections of the first vendees the
executing court held that the appellants were entitled to
execute the decrees.
On appeal the Additional District Judge held that the
pre-emptor having complied with the directions contained in
the decree his title to the lands was perfected and that the
appellants were entitled to recover possession under s. 146,
CPC.
In execution second appeals of the first vendees the
High Court held that the right of pre-emption being a
personal right, the decree for pre-emption would be a
personal decree and was not assignable and even if the pre-
emptor had complied with the provisions of Or. XX r. 14 CPC,
the appellants would not be entitled to execute the decree
for possession because the decree was not assigned and s.
146 would not help the present appellants.
Allowing the appeals,
^
HELD: 1(i) The question whether the right of pre-
emption was a personal right or it created an interest in
property was concluded by the decision of this Court between
the same parties in an earlier round of litigation. The
earlier litigation being inter partes and, therefore,
binding on the respondents, it cannot be reopened or re-
examined at the instance of the respondents. [226 H-227 B]
(ii) The contention that decree in a suit for pre-
emption is a personal decree and creates no interest in land
must fail. [228 B]
(iii) The distinction between a voluntary inter vivos
transfer and an involuntary transfer such as by way of
inheritance is immaterial as for as the present case is
concerned because the question in terms disposed of by
223
this Court in the earlier case is that the pre-emptor having
complied with O. XX, r. 14 had become the owner of the lands
and his legal representatives on his death were rightly
substituted in the proceedings. [227 H-228 A]
Hazari & Ors. v. Neki & Ors., [1968] 2 SCR 833;
referred to.
Section 146 CPC provides that where some proceedings
could be taken or application could be made by a person
under the Code of Civil Procedure any other person claiming
under him is entitled to make and maintain such an
application. The only limitation on the exercise of this
right is in the expression, 'save as otherwise provided by
this Code,' occurring in the section. [229 E]
3. If the assignee of a decree can avail himself of the
provisions contained under Or. XXI R. 16 by establishing
that he is such an assignee he must only avail himself of
that provision. But if he fails to establish his title as a
transferee by assignment in writing or by operation of law
within the meaning of Or. XXI r. 16, there is nothing in
that provision which prohibits him from availing himself of
s. 146 if the provision of that section can be availed of by
him. [230 E]
Jugal Kishore Saraf v. Raw Cotton Co. Ltd., [1955] SCR
1369; referred to.
In the instant case though the sale deed in respect of
land would show that the decree itself was not assigned, the
lands having been sold by the decree-holder after perfecting
his title and purchased by the present appellants, they
would be persons claiming under the original pre-emptor
decree-holder and if he could have made an application for
execution of the decree as decree-holder, the applications
for execution by the present appellants would be
maintainable under s. 146, and they are therefore entitled
to execute the decrees for possession. [231 C-D]
Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi &
Anr., [1958] SCR 1287; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1806-
1808 of 1969.
From the Judgment and Order dated 30-5-1969 of the
Punjab and Haryana High Court in Executive Second Appeals
Nos. 1131-1133 of 1968.
H.K. Puri and V.K. Bahl for the Appellant.
Janardhan Sharma and Jitendra Sharma for the Respondent
The Judgment of the Court was delivered by
DESAI, J. These appeals by certificate under Article
133(1) (c) of the Constitution granted by the High Court of
Punjab & Haryana arise from three Execution Petitions filed
by the present appellants for executing three decrees
obtained by one Neki (since deceased) in three
224
suits bearing Nos. 313, 360 and 369 of 1961 filed by him for
pre-emption, to recover physical possession of the lands
involved in the suits. The decrees in favour of Neki were
confirmed finally by this Court in Civil Appeals Nos. 1148,
1656 and 2341 of 1966 decided on 25th January 1968. The
Judgment of this Court is reported in Hazari & Ors. v. Neki
& Ors.(1) The facts which ultimately resulted in decrees for
pre-emption in favour of Neki are fully set out at pages
834-835 of the reported judgment and repeating the same
would merely add to the length of this judgment. Suffice to
state that there is no dispute that decrees for pre-emption
were passed in favour of Neki against the original vendor
Dhara Singh and his vendees Hazari and others and the
satisfaction of the condition in the decrees of pre-emption
for payment or deposit of the amounts as directed by the
Court within the stipulated time is not questioned in the
present proceedings.
It appears that the trial court decreed the suits for
pre-emption in favour of Neki on 7th November 1962
simultaneously imposing the condition to deposit certain
amounts in the three suits by or before 3rd December 1962.
The various amounts were duly deposited in the three decrees
by Neki, the decree holder, on 3rd December 1962. Soon
thereafter, on 5th December 1962 Neki sold the lands in
respect of which he got the decrees to Zila Singh and
others, the present appellants. The present appellants are
subsequent vendees but they will be referred to as the
appellants in this judgment. The former vendees would be
referred to as ‘first vendees’, the sale in whose favour
gave rise to the cause of action for pre-emption in favour
of Neki against the original vendor Dhara Singh.
After the sale in favour of the present appellants,
they applied to be joined as parties to the appeals
preferred by the first vendees against the decrees for pre-
emption which were then pending in the High Court and the
Court directed by its order dated 13th July, 1963 that the
present appellants be joined as parties to the appeals
subject to just legal exceptions. The appellants then filed
Execution Applications Nos. 295, 296, 297/64 seeking to
execute the decrees to recover actual possession of the
lands purchased by them from Neki. Original Vendor Dhara
Singh and the first vendees filed their objections
challenging the right of the present vendees to execute the
decrees. Principal contention raised was that the sale deed
of lands in favour of the appellants did not envisage
assignment of the decrees and that the right of pre-emption
being a personal right, the decrees could not be assigned
and, therefore, the present appellants who were subsequent
vendees from pre-emptor Neki, were not entitled and had no
locus standi to execute
225
the decrees granted in favour of Neki. The executing court
after examining the relevant provisions contained in section
47 and Order XXI, Rule 16, of the Code of Civil Procedure
rejected the objections raised by the first vendees and held
that the present appellants were entitled to execute the
decrees and directed warrant for possession to be issued.
The first vendees preferred three appeals being Nos. 25/14,
26/14 and 27/14 of 1968 to the District Court at Rohtak. The
learned Additional District Judge who heard these appeals,
by a common order rejected the appeals and confirmed the
order of the trial Court observing that the pre-emptor
having deposited the purchase price as directed by the
Court, in accordance with the terms of the decrees, his
title to the lands was perfected from the date of deposit as
provided in Order XX, Rule 14 (1)(b), C.P.C., the appellants
as purchasers of lands from the pre-emptor in whose favour
the decrees for pre-emption including the one for possession
had become final, were entitled to recover possession under
section 146 C.P.C.
Hazari, Amar Singh and Bhan Singh the first vendees
preferred three Execution Second Appeals Nos. 1131,1132 and
1133/68 to the High Court of Punjab & Haryana. When these
appeals came up before a learned single Judge of the High
Court it was contended that in view of the decision in Ram
Singh & Ors. v. Gainda Ram & Ors, The assignee of a holder
of a decree for pre-emption cannot seek the assistance of
the Court for executing the decree for pre-emption because
the decree is a personal one and, therefore, non-assignable.
On behalf of the present appellants who were respondents
before the High Court, reliance was placed on the decision
in Satyanarayana v. Arun Naik and Ravi Parkash and Anr. v.
Chunilal & Ors.. The learned single Judge had certain
reservations about the correctness of the decision in Ram
Singh’s case and, therefore, he considered it prudent to
refer the matter to a Division Bench. The matter ultimately
had to be referred to a Full Bench because there was another
decision in Mehrkhan and Shah Din v. Ghulam Rasul, which
also required reconsideration. That is how the matter came
before a Full Bench.
The Full Bench formulated the question for its
consideration as under:-
“Whether the purchaser of land from a pre-emptor
of which the pre-emptor has become the owner in
pursuance of a pre-emption decree after complying with
the
226
provisions of Order XX, Rule 14 Civil Procedure Code
could execute the decree in order to obtain possession
of the land purchased by him.”
All the three Judges of the Full Bench wrote separate
opinions. D. K. Mahajan, J. was of the opinion that assuming
that a decree of pre-emption is a personal decree, the
transferees of the land from the pre-emptor whose title was
perfected by deposit as envisaged in O. XX, Rule 14 (1) (b)
were entitled to execute the decree granted by the Court in
favour of the pre-emptor and can seek assistance of the
Court for recovering actual possession from the first
vendees who had no right to continue in possession, apart
from O. XX, Rule 16 under section 146 C.P.C. P. C. Pandit,
J. and H. R. Sodhi, J., the other two members of the Full
Bench were of the opinion that the right of pre-emption
being a personal right, a decree for pre-emption will be a
personal decree and is not assignable and even if title to
the land passed to the vendees who purchased the land from
the pre-emptor after the pre-emptor complied with the
provisions contained in Order XX, Rule 14 yet they would not
be entitled to execute the decree for possession because
decree is not assigned and section 146 would not help the
present appellants. In accordance with this majority
opinion, the appeals preferred by the first vendees were
allowed and the applications for execution filed by the
present appellants were dismissed.
The High Court granted a certificate under Article 133
(1) (c) of the Constitution because in its opinion the
question involved in the appeals was of considerable
importance and was likely to arise frequently and that it
deserved to be decided finally by the Supreme Court.
Mr. Janardan Sharma, learned counsel for the
respondents urged that looking to the scheme of ss. 4, 6 and
15 of the Punjab Pre-emption Act, 1930, it is
incontrovertible that foundation of the right of pre-emption
being close personal relationship, it is a personal right
and can be exercised only by the person in whom it vests
under the law and if in exercise of such right such a
qualified person seeks to pre-empt a sale by instituting an
action in a Court of law, the resultant decree would be a
personal decree. Urged Mr. Sharma further that if the decree
is a personal one, obviously it cannot be assigned and the
assignee gets no interest in a decree so as to enable him to
execute the decree. The question whether the right of pre-
emption conferred by the provisions of Punjab Pre-emption
Act, 1913, is a personal right or it creates an interest in
the property is
227
no more res integra and is concluded by a decision of this
Court between the very parties who are parties to the
present appeals, in an earlier round of litigation wherein
the first vendees, the present respondents had challenged
the right of Neki deceased pre-emptor to obtain a decree for
pre-emption. Apart from the fact that the point is concluded
by a decision of a Bench of three Judges of the Court, it is
inter-partes and, therefore, binding on the respondents whom
Mr. Janardan Sharma represents and at the instance of the
respondents it cannot be re-opened or re-examined. As the
matter calls for no examination at the hands of the Court it
would suffice to quote what has been held in Hazari & Ors.
v. Neki & Ors. Ramaswami, J. speaking for the Court,
observed as under:
“In support of these appeals, learned counsel put
forward the argument that the right of pre-emption
claimed by Neki deceased plaintiff was a personal right
which died with him upon his death and the legal
representatives of Neki were not entitled to be granted
a decree for pre-emption. The argument was that the
statutory right of pre-emption under the Punjab Act was
not a heritable right and no decree for pre-emption
should have been passed by the lower court in favour of
the legal representatives as representing the estate of
Neki. We are unable to accept the argument put forward
by the appellants. It is not correct to say that the
right of pre-emption is a personal right on the part of
the pre-emptor to get the re-transfer of the property
from the vendee who has already become the owner of the
same. It is true that the right of pre-emption becomes
enforceable only when there is a sale but the right
exists antecedently to the sale, the foundation of the
right being the avoidance of the inconveniences and
disturbances which would arise from the introduction of
a stranger into the land. The correct legal position is
that the statutory law of pre-emption imposes a
limitation or disability upon the ownership of a
property to the extent that it restricts the owner’s
right of sale and compels him to sell the property to
the person entitled to pre-emption under the statute.
In other words, the statutory right of pre-emption
though not amounting to an interest in the land is a
right which attaches to the land and which can be
enforced against a purchaser by the person entitled to
pre-empt.”
Mr. Janardan Sharma, however, sought to distinguish the
position under a voluntary inter vivos transfer and an
involuntary
228
transfer such as by way of inheritance and urged that in
this case Neki having sold the lands to the present
appellants by sale inter vivos they cannot enjoy the fruits
of the decree. This distinction is immaterial as far as the
present case is concerned because the question in terms
disposed of by the Court is that Neki having complied with
Order XX, Rule 14, had become the owner of the lands and his
legal representatives on his death were rightly substituted
in the proceedings. The contention, therefore, that decree
in a suit for pre-emption is a personal decree and creates
no interest in land, the subject matter of pre-emption, must
accordingly fail.
The next contention is that the deed evidencing the
sale of lands Ext. D-1 dated 15th February, 1963 merely
transferred the lands but does not purport to assign the
decree, then in the absence of such an assignment the
purported assignee cannot execute the decree in view of the
provision contained in Order XXI, Rule 16, and therefore,
the execution applications at the instance of the present
appellants are not maintainable. The Additional District
Judge did not decide the contention whether the Execution
Applications at the instance of the present appellants,
namely, subsequent transferees were maintainable under O.
XXI, Rule 16, because in his opinion the present appellants
were entitled to execute the decree under section 146 of the
Code of Civil Procedure. The majority view of the High Court
is that the subsequent transferees, the present appellants,
were not entitled to execute the decree under O. XXI, Rule
16 because the decree for pre-emption being a personal one
cannot be assigned and alternatively if it could be
assigned, as a matter of fact, it has not been assigned and
therefore the applications for execution at their instance
are not maintainable. They were further of the view that
section 146 would not assist the appellants as provisions
contained in O. XXI, Rule 16 being a specific contrary
provisions, section 146 cannot be invoked.
Order XXI, Rule 16 permits an execution of a decree at
the instance of an assignee by transfer of a decree, the
assignment may be in writing or by operation of law and if
such an application is made, the court to which an
application is made shall issue a notice to the transferor
of the decree and the judgment debtor and the decree cannot
be executed until the Court heard their objections, if any,
to its execution. Section 47 C.P.C. provides that all
questions arising between the parties to the suit in which
the decree was passed, or their representatives, relating to
the execution, discharge or satisfaction of the decree shall
be determined by the court executing the decree and not by a
separate suit. Explanation appended to
229
section 47 provides that for the purposes of that section
amongst others a purchaser at a sale in execution of the
decree is deemed to be a party to the suit. It would have
been interesting to examine the question whether the
purchaser of land from a pre-emptor in whose favour a decree
for pre-emption has been passed and who subsequent to the
decree complied with the requirement of Order XX, Rule 14
and thereby perfected his title would be, on the analogy of
a purchaser at a sale in execution of a decree, a party to
the suit or at any rate the representative of the decree-
holder or a successor in interest of the decree-holder, but
as we are of the opinion that the applications for execution
filed by the present appellants are maintainable under
section 146 C.P.C. the larger question need not be decided
in these appeals.
Section 146 reads as under:
“Save as otherwise provided by this Code or by any
law for the time being in force, where any proceeding
may be taken or application made by or against any
person, then the proceeding may be taken or the
application may be made by or against any person
claiming under him.”
Shorn of unessentials the section provides that where
some proceeding could be taken or application could be made
by a person under the Code of Civil Procedure any other
person claiming under him is entitled to make and maintain
such an application. The limitation on the exercise of this
right is to be found in the expression, ‘save as otherwise
provided by this Code’. It would mean that if the Code
permits a proceeding to be taken or an application to be
made by a party, then in the absence of a provision to the
contrary, section 146 would enable any one claiming under
such person as well to make the same application. The object
behind the section appears to be to facilitate the exercise
of right by a person claiming under the person whose right
to maintain an application is beyond dispute.
Section 146 came in for consideration in Jugal kishore
Saraf v. Raw Cotton Co. Ltd. In that case the facts were
that the plaintiffs in a pending suit for recovery of debt
transferred to another person all book and other debts due
to them including the debt involved in the suit. The
transferees did not apply to be joined as parties in the
pending suit and the suit continued in the name of the
original plaintiffs and ended in a decree. Subsequently the
230
transferees as decree-holders applied for execution of the
decree against the judgment-debtor and upon a notice being
issued, a contention was raised that the application was not
maintainable under Order XXI, Rule 16. One submission was
that even if the application for execution was not
maintainable under O. XXI, Rule 16, it would certainly be
maintainable at the instance of the transferees of the
original debt under section 146. Accepting this contention
Das, J. observed that a person may conceivably become
entitled to the benefits of a decree without being a
transferee of the decree by assignment in writing or by
operation of law. In that situation the person so becoming
the owner of the decree may well be regarded as a person
claiming under the decree-holder. It was further held in
that case that the transferees of the debt derived their
title to the debt by transfer from the transferors and when
the decree was passed in relation to decree they must also
be regarded as persons claiming under the transferors and
accordingly they would be entitled to make an application
for execution under section 146 of the Code of Civil
Procedure. Bhagwati, J. in a separate and concurring
judgment on this point observed that the only meaning that
can be assigned to the expression ‘save as otherwise
provided by this Code’ in sec. 146 is that if a transferee
of the decree can avail himself of the provision contained
under Order XXI, Rule 16 by establishing that he is such a
transferee he must only avail himself of that provision. But
if he fails to establish his title as a transferee by
assignment in writing or by operation of law within the
meaning of O. XXI, Rule 16 there is nothing in that
provision which prohibits him from availing himself of
section 146 if the provision of that section can be availed
of by him. It would thus appear that if the sale-deed in
respect of land on its proper construction would show that
the decree itself was assigned obviously the application for
execution would be maintainable under O. XXI, Rule 16. But
if the appellants do not fall within the four corners of O.
XXI, Rule 16 and they appear not to fall within the four
corners of it, because though the land, the subject matter
of the decree is sold to appellants, the decree itself is
not assigned, they would nonetheless be able to maintain
application for execution under section 146 as persons
claiming under the decree-holder. The respondents cannot
have both the ways. If the deed evidenced transfer of decree
by assignment then O. XXI, Rule 16 would be attracted but
if, as it appears, there is no transfer of decree by
assignment, the lands having been sold by the decree-holder
after perfecting his title and purchased by the present
appellants they would be persons claiming under the original
pre-emptor decree holder Neki and if Neki could have made an
application for
231
execution of the decree as decree-holder, the present
appellants, as purchasers of land from Neki would certainly
be claiming under Neki and, therefore, their application for
execution would certainly be maintainable under section 146.
In this connection it would be advantageous to refer to Smt.
Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and
Another(1) wherein it has been in terms held that section
146 was introduced for the first time in Civil Procedure
Code 1908 with the object of facilitating the exercise of
rights by persons in whom they came to be vested by
devolution or assignment and being a beneficent provision
should be construed liberally so as to advance justice and
not in a restricted or technical sense. Viewed from this
angle the present appellants must succeed because they
purchased land from pre-emptor Neki and the validity of sale
being now beyond dispute, they are persons claiming under
Neki whose right to execute the decree was never disputed
and, therefore, appellants claiming under the vendor Neki
would be able to maintain an application for execution under
section 146 of the Code of Civil Procedure. Appellants are
thus entitled to execute the decree for possession.
Accordingly these three appeals are allowed and the
decision of the High Court dated 30th May, 1969 in Execution
Appeals Nos. 1131, 1132 and 1133 of 1968 is set aside and
the decision of the Additional District Judge dated 15th
July, 1968 is restored, but in the circumstances of the case
there would be no order as to costs.
N.V.K Appeals allowed.
232