Case: Zila Singh and Ors Vs. Hazari and Ors

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 proceedingsIt 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 sol d 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 SinghAfter 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 env isage 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 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 theCode 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 place d 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 Singhs 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 BenchThe 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 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 1 6 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 pos session 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.

Reasoning:
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 failThe 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 theCode 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, i t 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 invokedIt 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 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 theCode of Civil Procedure.