Judgment Case ID: 3988

Judgment:
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. vs 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. vs 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 vs Arun Naik and Ravi Parkash and Anr. vs 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 vs 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 sections 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. vs 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 vs 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 vs 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.

Summary:
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 section 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 section 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. vs Neki & Ors. 	 ; ; 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 section 146 if the provision of that section can be availed of by him. [230 E] Jugal Kishore Saraf vs Raw Cotton Co. Ltd.	 ; ; 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 section 146	 and they are therefore entitled to execute the decrees for possession. [231 C D] Smt. Saila Bala Dassi vs Smt. Nirmala Sundari Dassi & Anr.	 ; ; referred to.