JAGTAR SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) Execution second appeal was dismissed by the learned single Judge by his order dated Apr. 9, 1975 The same has been challenged in this letters patent appeal.

(2.) The admitted facts are that the land in dispute was sold by one Bhag Singh in favour of Kartar Sm respondent. This sale was pre-empted by the present appellants in a suit for pre-emption filed on May 20, 1966 through their next friend and uncle Hardial Sin as they were minors at that time. The suit was decreed on Oct. 13, 1966, with the direction that the plaintiffs-decree-holders will deposit the balance of the sale price of Rs. 12,000/- on or before Feb. 15, 1967. On Jan 28 1967 the said next friend Hardial Singh entered into a compromise With the vendee-respondent and relinquished thy claim of the plaintiffs-decree-holders for a consideration of Rs. 6,300/-. This compromise, however, had been effected without the permission of the Court On Oct. 23, 1968, the plaintiffs-appellants through their mother, Jagir Kaur, challenged this compromise through a suit for declaration on the ground that the same was fraudulent an illegal and not binding on them. This suit was decreed on Dec. 30, 1969, and the parties were relegated to the position held by them before the compromise entered on Jan. 28, 1967. This decree was not challenged by the vendees and therefore, became final. The initial deposit of Rs. 3,000/ equivalent to one-fifth of the sale price made at the time of the filing of the suit for pre-emption had also been withdrawn. After the second suit had been decreed, the appellants deposited the amount of Rs. 15,000/- equivalent to the sale price on Jan. 12, 1970, that is within 30 days of the decree under the orders of the Court. The plaintiffs-decree-holders thereafter filed execution application to obtain possession of the land in dispute The vendees challenged the executability of the decree and filed objections under S. 47, Civil P. C. These objections found favour with the executing Court and the execution application was dismissed by order dated Oct. 21, 1971, holding that the deposit of the decretal amount was not in accordance with the pre-emption decree and was thus invalid Aggrieved by this order, the plaintiffs-decreeholders challenged the same in appeal, but to no effect. The order was challenged in second appeal. The learned single Judge though agreed with the contention of the appellants that the deposit of the decretal amount had been made within time yet dismissed the appeal on the ground that the acceptance of the appeal will tantamount to passing a new decree of pre emption in the suit which could not be done as the Punjab Pre-emption Act had been repealed by S. 3 of the Punjab Pre-emption (Repeal) Act (II of 1973) (hereinafter to be called the Repealing Act), 1973.

(3.) According to the learned counsel for the appellants, by dismissing the objections of the vendee-judgment-debtors, no new decree for pr-emption bad to be passed or affirmed so as to attract the provisions of the Repealing Act at the time when the illegal compromise was effected by Hardial Singh the next friend of the minor plaintiffs, the time far deposit of the decretal amount bad not et expired and 18 days were still left. After this compromise bad been set aside by the civil court and the parties having been relegated to the position existing before the compromise, the plaintiffs were within their right to make deposit of the decretal amount before the expiry of 18 days. Therefore, the deposit was made within time. In these circumstances, the original decree for preemption on was perfectly valid operative an executable, argued the learned counsel. No doubt, as a result of the declaratory decree by which the alleged compromise entered into by the next friend of the plaintiffs with the vendee relinquishing the right of the decree-holders (was set aside) the original decree was restored and the acceptance or the rejection of the objections by the vendee-judgment-debtor during execution proceedings will have no effect on the legal by or the validity of the decree as such. In case of acceptance of the objections the decree will be held to be inexecutable and in case of rejection, the decree will be executable in accordance with law. In either case, the legality of the decree when it was passed remained intact and was not in any way affected. The legal position is quite different when decree for pre-emption is the subject matter of appeal whether in the District Court or in the High Court and the final decision in the appeal results in either affirmation of the decree or the dismissal of the same. In that case, the Repealing Act stood in the way of disposing of the appeal in either way. S. 3 of the Repealing Act only prescribed the prohibition that no court shall pass a decree in any suit for pre-emption. It is settled law as laid down by their Lordships of the Supreme Court in Amarjit Kaur v. Pritam Singh 1974 Pun LJ 406: (AIR 1974 SC 2068), that an appeal is a rehearing of the suit and if the High Court was to dismiss the appeal it would be passing a decree in a suit. In case of affirmation of a decree also, a new decree of affirmation has to be passed. However the execution proceedings cannot be treated at the same level and the executing court cannot go behind a decree, nor has it the jurisdiction to affirm, modify or reverse the same I am, therefore, of the view that the Repealing Act bas not taken away the jurisdiction of the appellate Court in the present case in which the only matter waiting decision is the validity of the objections filed by the vendee-judgment-debtor.