ZILA SLNGH & ORS. v. HAZARI & ORS.
Citation: [1979] 3 S.C.R. 222; 1979 INSC 52
Court: Supreme Court of India
Bench: P.N. SHINGAL , D.A. DESAI
Judgment date:
Case summary
1979 INSC 52. Supreme Court of India judgment dated 1979-02-25. ZILA SLNGH & ORS. v. HAZARI & ORS. Read the judgment and case details on LawSphereX.
Judgment text
224 SUPREME COURT REPORTS [1979] 3 S. C. R. ZILA SlNGH & ORS. v. • HAZARI & ORS. February 25, 1979 [P. N. SHINGHAL AND D. A. DESAI, JJ. ] Code of Civil Procedure 1908-S. 47, Or. XX r. ! 4(1)(b), Or. XXI r. I& 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 posse&S1on of the iand. • 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 0-gainst the vendor and his vendees. After satisfying the k" 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 thtt 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 thG:t 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 executine court held thal 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 possel! ion under o. 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 appellaiits. 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 ZILA SINGH v. HAZARI (Desai,]. ) 223 this Court in the earlier case is that the pre-emptor having complied with 0. XX, r. 14 bad become the owner of the lands and bis legal representatives • on bis death were rightly substituted in the proceedings. [227 H-228 Al Hazari & Ors. v. Neki & Ors. , [19681 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 clniming under him is entitled to make and maintain such an application. The only limitation on the exercise of this right is in tho expression, 'save as otherwise provided by this O:>de,' occurring in the •ection. [229 El 3.
If the assignee of a decree can avail himself of the provisions contained under Or. XX! R. 16 by establishing that he is such an assignee he must only avail himself of thnt provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within tho meaning of Or. XXI r. 16, there is nothing in that proviGion which prohibits him from availing himself of s. 146 if the provision of that section can be availed of by him. [230 El lugal Kishor iJrice as directed by the Court, in accordance with the terms of the ~ maintainable at the instance of the transferees 8 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 ~ituation the person so becoming the owner of the decree may well be regarded as 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 y is such a transferee he must only avail himself of that provision. Bnt if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of 0.
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 main-·- -,{ tainable under 0. XXI, Rule 16. But if the appellants do not fall ·> within the four corners of 0. 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 de~ree by assignment then 0.
XXI, Rule • 16 weula 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 ZILA SINGH v. HAZARI (Desai, J. ) 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 wonld be advantageous to refer to Smt. Saila BaU. Dassi v. Smt.
Nirma/a Sundari Dassi and Another(') 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 • _,l advance justice and not in a restricted or technical sense. Viewed _, from this angle the present appellants must succeed because they pur- . ,, chased 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. -· # (I) [1958] S. C. R. 1287.
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