HAZARI Vs. ZILA SINGH

JUDGEMENT

(1.) THIS order will dispose of three Execution Second Appeals Nos. 1131, 1132 and 1133 of 1968, arising out of execution proceedings, in which Important questions of law have arisen. All these appeals will get settled by the answer that is given to these questions of law. They were initially placed before me in Single Bench; and by my order dated the 30th of September, 1968, I referred them to a Full Bench in view of the fact that the questions of law, that required determination, were of considerable importance. Moreover, it was contended that the Single Bench decision of this Court in Ram Singh v. Gainda Ram, AIR 1953 Punj 163, and the decision of the Lahore High Court, which the learned Single Judge followed, namely. Mehr Khan and Shah Din v. Ghulam Rasul, ILR 2 Lah 282 = (AIR 1922 lah 300), were expressed in too wide a language; and, in any case, did not lay down the correct rule of law.

(2.) BEFORE proceeding to state the facts, I may state the principal question of law afresh which requires determination:--"whether the purchaser of land from a pre-emptor of which the pre-emptor has become the owner in pursuance of a pre-emption decree after complying with the provisions of Order 20, Rule 14, Civil Procedure code, could execute the decree in order to obtain possession of the land purchased by him?" the other questions of law are subsidiary to this question and will be dealt with at their proper place.

(3.) THE facts, which have given rise to these appeals, may now be stated: Dhara singh, respondent, effected three sales of agricultural land. The first sale was of 27 Kanals 4 Marias and was effected on the 20th September, 1960. The second sale was of 36 Kanals and 19 Marlas and was effected on the 23rd of November, 1960; and the third sale was of 33 Kanals 18 Marias and was effected on the 26th march, 1961. The vendees were Hazari, Amar Singh and Bhan Singh -- the present appellants. Neki, father's brother of Dhara Singh, vendor, filed three suits for preemption; they being suits Nos. 313, 369 and 368 of 1961 regarding the first, the second and the third sale respectively. On the 31st of October, 1962, the suit regarding the first sale was decreed on payment of Rs. 3,500/-to be deposited on or before the 15th of January, 1963. On the 7th of November, 1962, the remaining two suits were also decreed on payment of Rs. 5,000/- and Rs. 8,000/respectively to be deposited on or before the 15th of January, 1963. The pre-emptor deposited the amounts in terms of Order 20, Rule 14 of the Code of Civil procedure, on the 23rd of December, 1962, that is, before the 15th of January, 1963, the last date fixed for deposit. Three appeals were preferred by the vendees against the pre-emption decrees. The learned Senior Subordinate Judge dismissed the appeals in Suits Nos. 313 and 3g9 of 1961; but modified the decree in Suit no. 368 of 1961. The pre-emptor was asked to deposit an additional sum of Rs. 2,000/- on or before the 1st of March, 1963. This amount too was deposited by neki within the time prescribed. On the 5th of December, 1962, Neki transferred the lands, which were the subject-matter of the decrees, to Zile Singh and his covendees. Against the decision of the lower appellate Court, four Second Appeals were preferred; three by the first vendees and one by Neki. The appeals preferred by the first vendees were Regular Second Appeals Nos. 280 to 282 of 1963 and that by Neki was Regular Second Appeal No. 830 of 1963. His appeal was in Suit no. 368 of 1961. On the 7th of April, 1963, Neki died and Dhara Singh, Ram kishan and Balbir Singh were brought on the record as his legal representatives by the vendees by an application under Order 22, Rules 3 and 4 of the Code of Civil procedure. They are the father and his two sons. Dhara Singh was impleaded as the legal representative being the nearest collateral of the deceased. One of his sons was impleaded as there was a will by Neki in his favour. The second son was also impleaded along with his father and his brother. It may also be mentioned that the vendees from Neki, who may. for the sake of convenience, be described as the second vendees, became parties only at the stage of the second appeals. They made an application under Order 22, Rule 10 of the Code of Civil Procedure on 29th of May, 1963. In this application, it was stated that "neki had sold the suit land along with some other land to the undermentioned 10 persons, according to the shares noted in the registered deed No. 2783 dated the 15th of February, 1963. " Thereafter, the names of Zile Singh and his co-vendees are stated. In paragraph 3, it was prayed that-" * * The following persons may please be brought on record as respondents being successors-in-interest of the said Neki. * * " this application was allowed by Gurdev Singh J. on the 13th of July, 1963. The learned Judge passed the following order:-"allowed subject to all just exceptions, on the condition that a separate application for the appointment of guardian ad litem of the minors, who are sought to be impleaded, is made within a fortnight. " on the 13th of August, 1963, an application was made under Order 32, Rules 1 and 3, as contemplated in the order of Gurdev Singh J. This application was allowed on the 24th of September, 1963, by Harbans Singh J. , subiect to all just exceptions. On the 17th of September, 1964, all the three second appeals were dismissed. The vendees then preferred three appeals under Clause 10 of the Letters Patent. In the appeal, that was filed by Hazari and others, the first venders, Zile Singh and his co-vendees, that is, the set of second vendees, were impleaded as respondents along with Dhara Singh and his two sons who had been brought on the record by the learned Single Judge as the legal representatives of neki deceased. Dhara Singh was represented before the learned Single Judge by mr. Parkash Chand Jain; and Zile Singh and others were represented by Mr. U. D. Gaur. In the Letters Patent, the same counsel represented the parties. These appeals were rejected by a Division Bench on the 27th of July, 1965; and this judgment is reported as Hazari v. Neki, (1960) 68 Pun LR 29= (AIR 1966 Punj 348 ). Against the decision of the Letters Patent Bench, appeals were taken to the supreme Court. The Supreme Court also dismissed those appeals; and the decision of the Supreme Court is reported as Hazari v. Neki (dead), 1968 Cur LJ 703 = (AIR 1968 SC 1205 ). Both before the Letters Patent Bench and the supreme Court, the second vendees were parties. In fact, in the Supreme Court, only they contested the appeals filed by the first vendees. Thus the decree for preemption in favour of Neki became final; Neki being also represented by the second vendees by the order of the learned Single Judge of this Court.