ZILA SLNGH & ORS. versus HAZARI & ORS.

Citation: [1979] 3 S.C.R. 222 · Decided: 25-02-1979 · Supreme Court of India · Bench: P.N. SHINGAL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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B 
c 
D 
F 
G 
H 
222 
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 
A 
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< Saraf v. Raw Cotton Co. Ltd., [195'] SCR 1369; 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 appel-/ 
!ants, they would be person11 claiming under the original pre-emptor 
decree-1 
holder and if he could have made an application for execution of the decree 
as decree-ho

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