IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CR No. 69/2002 Reserved on: 3.3.2009 Decided on:22.4.2009 Tilak Raj and others. …Petitioners. Versus Banka Ram and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. For the Respondent : Mr. Ankush Dass Sood, Advocate for respondent No.1 (a). Rajiv Sharma, J. The present revision petition has been directed against the order passed by the learned Senior Sub Judge, Hamirpur dated28.1.2002 in Objection Petition No.1 of 2000/2001 in execution petition No.41/1995. Brief facts necessary for the adjudication of this revision petition are that the predecessor-in-interest of the respondents Sh. Munshi Ram (hereinafter referred to as ‘the decree holder’ for convenience sake) filed a suit in the year 1968 against Sh. Bhagwan Dass, predecessor-in-interest of the petitioners (hereinafter referred to as ‘the judgment debtors’ for 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 convenience sake). The suit was assigned Civil Suit No. 216 of 1968. It was decreed by the learned Sub Judge, Hamirpur on 13.7.1971. The appeal was preferred against the judgment in the Court of learned District Judge. The learned District Judge vide his judgment dated 4.8.1973 in civil appeal No. 65/72 accepted the appeal and set aside the judgment of the trial court. The plaintiff-decree holder filed Regular Second Appeal in this Court and the same was accepted on 11.11.1983. The judgment and decree of the trial court was upheld. The defendants-judgment debtors agitated the matter before the Hon’ble Supreme Court. The appeal was dismissed by the Hon’ble Supreme Court on 30.3.1995. Thereafter the execution petition was filed in the court of learned Senior Sub Judge, Hamirpur bearing No. 1/2000/2001 on 7.2.2000. The defendants- judgment debtors filed objections against the execution petition. The primary stand of the defendants-judgment debtor was that in view of the judgment rendered in subsequent civil suit No. 191 of 1980/ 53/1983 decided on 28.8.1983 the execution petition was not maintainable. The decree holder filed the reply. It was, inter alia, contended that the decree as such was liable to be executed and subsequent events pertaining to the suit land have no bearing. The learned Senior Sub Judge dismissed the objections on 28.1.2002. The present petition is filed against the order dated 28.1.2002. Mr. Bhupender Gupta, Senior Advocate has strenuously argued that in view of the judgment rendered in civil suit No. 191/1980 / 53/1983 dated 28.8.1993, the objections were bound to be accepted. He then contended that in view of the judgment rendered by the Hon’ble Supreme Court in Atam Prakash versus State of Haryana and others, AIR 1986 SC 859, the decree cannot be executed. 3 Mr. Ankush Dass Sood, Advocate has relied upon section 54 of the Transfer of Property Act, and has also drawn the attention of the Court to the Punjab Pre-emption (Himachal Pradesh Repealing) Act, 1987. He finally contended that the judgment and decree passed by the learned Sub Judge dated 13.7.1971 has attained finality after the SLP preferred by the judgment debtor was dismissed by the Apex Court on 30.3.1995. I have heard the learned counsel for the parties and perused the record carefully. The decree was passed on 13.7.1971 (A-6). The judgment debtor preferred an appeal before the learned District Judge, Hamirpur. He accepted the appeal on 4.8.1973. Thereafter the decree holder filed Regular Second Appeal in this Court, the same was allowed on 11.11.1983. The judgment and decree passed by the trial court was affirmed. The SLP preferred by the judgment debtor was dismissed on 30.3.1995. The civil suit was filed by one Sh. Karam Chand against Swaran Singh etc. It was assigned civil suit No. 191/80 / 53/83 and the same was decided vide judgment Ex.O-7 on 26.8.1983. This judgment was rendered during the pendency of the earlier suit i.e. civil suit No. 216/1968. The precise case of the judgment debtor is that the persons, who acquired title in the light of the judgment rendered by the learned Sub Judge on 26.8.1983 were required to be brought on record since their interests would be vitally affected. It was also contend that the judgment debtors were left only with 1 kanal 5 marlas of land and according to them the decree for joint possession could only be executed to that extent only. In the present case the money has already been deposited. The similar question had arisen in Surinder Singh versus Teja Singh, 1998 Volume (I) SLJ 361. A Division bench of this Court has held as under: 4 “13. Learned counsel for the appellants contends that a decree has been passed in C.S No. 237/66 and it has not been challenged by the defendants in the present suit by filing an appeal. It is, therefore, argued that the decree will stand in the way of defendants claiming any right in the property. We are unable to accept this contention. It is to be remembered that the earliest suit was filed in 1956 by Gulab Kaur and continued by Jaswant Kaur. When that suit was pending, it was not open to the defendant therein, namely, Surjit Inder Singh to alienate the property to defeat the rights of the plaintiffs therein which may be declared by that decree. Hence, section 52 of the Transfer of Property Act will help the plaintiff in that case to get the benefits of the decree which is ultimately passed in that suit. If during the pendency of that proceedings the purchasers pendent elite get their rights declared by filing another suit that will not affect the decree passed in C.S. No. 67/60. Hence, we reject the contention of learned counsel for the appellants.” Similarly, the Full Bench of Orissa High Court in Sri Jagannath Mahaprabhu versus Pravat Chandra Chatterjee and others, AIR 1992 Orissa 47 have held that the effect of section 52 of the Transfer of Property Act, 1882 is that the lis pendens transferee is bound by the decree whether on context, ex parte or on compromise. Para 7 of the judgment reads thus: “7. The effect of section 52, therefore, is that a lis pendens transferee is bound by the decree whether on contest, ex parte or on compromise. The plaintiff is under no obligation to implead a lis pendens transferee. We do not agree with the view expressed by the Full Bench of the Kerala High Court in Lakshmanan v. Kamal (AIR 1959 Kerala 67) (supra) that “the effect of section 52 is to render void as against the decree-holder 5 transfer or other dealing with the suit property pendent elite and he is entitled to ignore it” because section 52 has been enacted with a view to safeguarding the interest of the plaintiff so that his decree is not defeated at the instance of a third party in whose favour there has been a lis pendens transfer. Our view is fortified by a decision of the Supreme Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593. It has been observed (at p. 602 of AIR): “……That sale was no doubt pendente lite, but the effect of Section 52 is not to wipe it out altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee……” The contention that the words “the property cannot be transferred” in section 52 rendered a transfer which fell within the mischief of section 52 non est was repelled with the following observation (at p. 602 of AIR): “This contention gives no effect to the words “so as to affect the rights of any other party thereto under any decree or order which may be made therein”, which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendent elite have been held to be valid and operative as between the parties thereto.” In view of the law discussed hereinabove, it is clear that the lis pendens transferee is bound by the decree. The decree cannot be rendered otiose merely after the passing of the judgment in a subsequent suit. Similarly, the decree holder is not bound by the revenue record prepared on the basis of second judgment rendered on 28.8.1983 (Ex.O- 7). The Legislative Assembly of Himachal Pradesh has repealed the Punjab Pre-emption Act, 1919 by way of Punjab Pre-emption (Himachal 6 Pradesh Repealing) Act, 1987. It has come into force with effect from 8.5.1987. A bare perusal of section 2 of the of Punjab Pre-emption (Himachal Pradesh Repealing) Act, 1987 reveals that on and from the date of commencement of this Act on 8.5.1997, no court shall pass a decree for pre-emption. In the present case the decree has been passed before this date on 13.7.1971. However, it will be appropriate to refer to section 3 of the Punjab Pre-emption (Himachal Pradesh Repealing) Act, 1987 as well which reads thus: “3. Bar to pass decree in suit for pre-emption.- On and from the date of commencement of the Punjab Pre- emption (Himachal Pradesh immediately before 1st November, 1966 and in the territories added to Himachal Pradesh under section 5 of the Punjab Re-organization Act, 1966 (13 of 1966), is hereby repealed: Provided that such repeal shall not affect- (a) any decree which has been passed under the Act so repealed and has become final; (b) any claim for the refund of the deposit made or a security furnished under the Act so repealed; or (c) any expenditure incurred in the discharge of costs under the Act so repealed.” It is manifestly clear from the language employed in proviso to section 3 of the Repealed Act that the repeal shall not affect any decree which has been passed under the Act so repealed and has become final. In the present case the decree was passed on 13.7.1971 and has been upheld up to the Hon’ble Apex Court. Moreover, the judgment rendered by the learned Sub Judge stood merged in the judgment of the Hon’ble Supreme Court after the dismissal of the SLP preferred by the judgment debtors. In view of this the judgment in Atam Prakash versus State of 7 Haryana and others, AIR 1986 SC 859 cited by Mr. Bhupender Gupta will not be applicable. Accordingly, there is no merit in the revision petition and the same is dismissed. There will, however, be no order as to costs. 22.4. 2009 (Rajiv Sharma ), J. *awasthi*