NAIB SINGH Vs. BIKRAM SINGH

JUDGEMENT

(1.) In this application under Section 151, Civil Procedure Code, Naib Singh prays that he be not dispossessed from the property in dispute against which a decree for pre-emption has been passed in the respondent's favour on payment of Rs. 95,000/-, by the subordinate Judge, 1st Class, Samrala on 18th April, 1968, during the pendency of the appeal against that decree, which is pending in this Court. In support of this prayer it is urged that the petitioner's crop is standing in the property and if he is dispossessed he will suffer irreparable loss. Mr. P.C. Jain, appearing for the respondent, has opposed this application and has pointed out that there is no justification for depriving him from taking possession of the property for which he has paid such a huge amount. Mr. B.S. Jawanda, appearing for the petitioner, has argued that it is the general practice of this Court as was that of the Lahore High Court to stay dispossession where the appeal involved immovable property and that this rule would be applicable all the more to appeals arising out of pre-emption suits, as right of pre-emption is a piratical right and the person who comes forward to exercise the same cannot be placed on the same footing as a person who has been dispossessed of the property vesting in him. Reliance in this connection is placed upon Gokal Chand V.Sanwal Das and others,1920 AIR(Lah) 326 and Fateh Khan V.Daim and others.,1927 AIR(Lah) 169. In the former case there is no discussion of the principles which should govern the staying of dispossession in an appeal against pre-emption decree. It is true that in that case the pre-emptor decree-holder was restrained from taking possession of the property during the pendency of the appeal, but the operative part of the judgment on that point does not decide any matter of principle and merely proceeds on the concession made by the pre-emptor's counsel. This is apparent from the relevant portion of the judgment which is in these words :-

(2.) Both these cases upon which reliance is placed on behalf of the petitioner were considered, alongwith the argument that there is a general practice of this Court to stay dispossession from immovable property pending the appeal, by Dua, J. (as he then was) in Ajit Singh V.Shrimati Pritam Kaur and others, 1958 60 PunLR 692. The learned Judge after referring to various other authorities including some decisions of this Court and the provisions of Order 41, rule 5, Civil Procedure Code, summed up the legal position in these words :-

(3.) Speaking with respect, this in my opinion, is the correct principle on which applications for staying execution of decrees for dispossession have to be considered. This rule has in fact been followed by me in Roshan Lal V.R. B. Mohan Singh (in R.F.A. 296 of 1964) where, on discussion of the relevant provisions and the various authorities of this Court, I agreed with Dua, J. that there was no such rule of practice in this Court for staying dispossession during the pendency of an appeal against a decree for possession and after hearing Mr. Jawanda in this case I see no reason to depart from this view.