BHOOP ALLEGED Vs. MATADIN BHARDWAJ

JUDGEMENT

(1.) In Suit No. 108 of 1967 the learned Sub-Judge, 1st Class, Mahendergarh, granted a pre-emption decree in respect of a parcel of agricultural land in favour of one Shanti Devi and against the appellant herein. Under the decree she was required to deposit four-fifth of the sale price by November 18, 1968. The respondent Matadin claimed that he had acquired the rights of Shanti Devi in the decree under a deed of assignment dated October 13, 1980. On the strength of the said assignment deed he put the decree to execution by getting himself substituted as decree-holder on October 15, 1980. He claimed actual possession of the land from the appellant. The appellant contested the execution proceedings on the ground that a pre-emption decree was not transferable and hence no right passed to the respondent under the deed of assignment. It was further contended that under the decree Shanti Devi was required to deposit four-fifth of the consideration money by November 18, 1968 and since she had failed to make the deposit, the suit stood dismissed and Shanti Devi had no subsisting right in the decree which she could pass under the deed of assignment. On the pleadings the executing Court framed two issues, the first bearing on the legality of the assignment and the second on the consequence of non-deposit of the amount in Court. The learned subordinate Judge, First Class., Mahendragarh held that since the amount was not deposited on or before November 18, 1968, the suit stood automatically dismissed and, therefore, Shanti Devi had no interest which she could transfer under the impugned deed of assignment. Consequently he dismissed the execution application by his order dated January 18, 1983.

(2.) Feeling aggrieved by the said order the present respondent filed a Revision Application No. 1217 of 1983 in the High Court of Punjab and Haryana. The learned single Judge who heard the revision application recorded a finding that the decree-holder had taken timely steps to deposit the amount before November 18, 1968. He noticed that the Presiding Officer, i.e., the Subordinate Judge, First Class, Mahendragarh, had relinquished charge on transfer on October 30, 1968 and since no one had taken charge in his place she had preferred an application on November 13, 1968 accompanied by a Treasury Challan 'for depositing the amount but her application was not entertained. Thereupon she placed the said application before the Senior Subordinate Judge, Narnaul, on November 16, 1968, but unfortunately the same was rejected for want of jurisdiction. The decree-holder then moved the learned District Judge, Gurgaon, on November 18, 1968. The learned District Judge passed an order authorising the Senior Subordinate Judge, Mahendragarh, to accept the amount. Accordingly the amount was deposited on November 19, 1968. The learned single Judge in the High Court rightly held that a party cannot be made to suffer for no fault of her own. He, therefore, held that there was no delay on the part of the decree-holder to deposit the amount and hence the amount must be taken to have been deposited within the time allowed by the decree and so the decree-holder was competent to assign it and the assignee was entitled to execute the same. He, therefore, allowed the revision application and directed the execution to proceed. It is against the said order that the present appeal by special leave is filed.

(3.) The High Court, however, did not address itself to the crucial question regarding the transferability of the decree. In the objections filed to the execution proceedings the judgment-debtor had raised the contention that the execution proceedings were not maintainable as the decree-holder was not competent to transfer the decree. Dr. Ghose, counsel for the appellant, contended that since a pre-emption decree confers a personal right only, the decree-holder has no right to transfer her interest under the decree before it is effectuated by obtaining possession. In other words according to Dr. Ghose a preemptor cannot transfer her right of preemption before the decree is effectuated and in any case an assignee of a pre-emption ,decree cannot put the decree to execution and seek possession thereunder. This right, contends Dr. Ghose, is reserved to the pre-emptor although she may convey the property after the decree is effectuated.