Devi & Anr Vs. Hukum Chand  INSC 998 (22 August 1996)
Singh, K. Venkataswami
O R D
appeals have been filed, for setting aside the order dated March 20, 1990, passed by the High Court allowing
the civil revision application which had been filed on behalf of the respondent
- decree holder.
is no dispute that the land in question was transferred in favour of the
appellant No.1 by one Kishan Chand and Jagdish Chand in the year 1980.
Thereafter a suit for pre-emption was filed on behalf of the respondent. That
suit was decreed on 27.8.1983. The appeal filed on behalf of the appellants was
dismissed by the court of appeal on 30.11.1983. Second appeal filed on behalf
of the appellants was also. dismissed by the High Court on 5.4.1984.
the decree holder - respondent took steps for execution of the decree for
pre-emption of the lands in question in the year 1984. An objection was taken
before the executing court that as only share in the land in question had been
transferred the decree passed for pre-emption cannot be executed. That
objection found favour with the executing court. Being aggrieved by the order
passed by the executing court the respondent filed civil revision before the
High Court which was allowed by the impugned order. The High Court after
referring to the earlier judgments of the said court including the Full Bench
proposition laid down in the Full Bench judgment, referred to above, has no
applicability to the facts of the present case. In that case the question was
as to whether the sale was of specific khasra No. out of the joint land.
question of getting the physical possession of the specific khasra nos. out of
the joint holding is governed by the provisions of the Code of Civil Procedure,
which provides as to how the decree for immovable property is to be executed.
Admittedly, the decree is for specific khasra nos.
were sold to the vendee by the vendor. That being so, the decree-holder is
entitled to the physical possession of the specific khasra nos. though it may
be open to the judgment debtors to make adjustments at the time of partition,
if any." Faced with this situation aforesaid, on behalf of the appellants
it was submitted before the High Court that as the relevant provisions of the
Punjab Pre-emption Act, 1913 had been declared to be unconstitutional by the
Constitution Bench of this Court in the case of Atam Prakash v. State of Haryana
& Ors., reported in 1986 (2) SCC 249, the decree passed in the suit for
pre-emption filed on behalf of the respondent shall be deemed to be nullity and
as such decree cannot be executed. The High Court rejected the said objection.
This Court in the case of Atam Prakash v.State of Haryana & Ors has
specifically said in respect of decrees which had become final as follows:
are told that in some cases suits are pending in various Courts and, where
decrees have been passed, appeals are pending in appellate Courts. Such suits
and appeals will now be disposed of in accordance with the declaration granted
by us. We are told that there are few cases where suits have been decreed and
the decrees have become final, no appeals having been filed against those
decrees. The decrees will be binding inter-parties and the declaration granted
by us will be of no avail to the parties thereto." (emphasis supplied) It
is, therefore, apparent that where the suits have been decreed and such decrees
have become final since no appeals have been filed against the same, the said
decrees are binding inter-parties and the declaration made by the Supreme Court
is of no avail to the parties thereto.
present case as mentioned above the suit for pre-emption was decreed on
27.8.1983. That decree was affirmed by the court of appeal on 30.11.1983. The
second appeal filed before the High Court against the judgment and decree of
the trial court and the court of appeal was dismissed on 5.4.1984. It is
admitted position that at no stage the appellants questioned the validity of
the decree question before this Court. We are informed that after 12 years in
the year 1996, a Special Leave Petition has been filed against order dated
5.4.1984 passed in the second appeal by the High Court. However, the fact
remains that when the High Court allowed the civil revision filed on behalf of
the respondent on 20.3.1990 the decrees of the trial court, the court of appeal
and the High Court in second appeal had become final. As such the direction of
this Court in Atam Prakash's case (supra) that such decrees shall be binding
inter-parties notwithstanding the declaration of this Court in the aforesaid
judgment, was fully applicable in the present case. The High Court has rightly
come to the conclusion that notwithstanding the judgment of the Constitution
Bench in the case of Atam Prakash (supra) the decree in the suit for
pre-emption filed on behalf of the respondent was binding between the parties.
behalf of the appellants our attention was drawn to the substituted Section 15
in the Punjab Preemption Act, 1913 which has been notified on 7th May, 1995 and it was urged that after the
said amendment no right of pre-emption can be enforced. Section 15 which has
been substituted is as follows:
Right of pre-emption to vest in tenant:- The right of Pre-emption in respect of
sale of agricultural land and village immovable property shall vest in the
tenant who holds under tenancy of the vendors the land or property sold or a
part thereof." On a plain reading the aforesaid section has been
introduced prospectively and there is no question of the said section affecting
in any manner the judgment and decree passed in the suit for pre-emption as
early as in the year 1983 affirmed by the High Court in the second appeal in
the year 1984.
to us the impugned order passed by the High Court is in terms of the direction
given by this Court in the judgment of the Constitution Bench in Atam Prakash
case (supra) and we find no reason to take a contrary view. These appeals are
accordingly dismissed. No costs.
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