SALIG RAM Vs. DHANI RAM

JUDGEMENT

(1.) This second appeal is brought from the decision of the learned District Judge, Kangra whereby, reversing on appeal a decision of the learned Subordinate Judge in execution case emerging from a pre -emption decree, the objection of the Appellant judgment -debtor was dismissed and the decree was held capable of execution and possession was restored to the decree -holder Respondent. Dhani Ram brought a suit for pre -emption against Salig Ram vendee and others. The suit was dismissed by the Subordinate Judge, but was decreed by the District Judge with a direction "to deposit the pre -emption money minus already deposited by way of 1/5th of the sale money within one month from the date of this order, failing which the suit shall be deemed to have been dismissed". The disputed land was subject to a mortgage and Rs. 200/ -were payable on that account. The Plaintiff paid that amount and obtained a receipt from the mortgagee. Accordingly an application was moved before the learned District Judge, presumably under Sec. 152 of the Code of Civil procedure that the decree be amended and it be specified that Rs. 200/ - already paid to the mortgagee were not payable to the vendee. The learned District Judge found that there was neither a clerical nor arithmetical mistake, nor any accidental slip or omission in the judgment, and therefore he dismissed that application. Despite that order, the Plaintiff decree -holder applied for execution and the learned Subordinate Judge delivered possession to the Plaintiff in execution of the decree. Thereafter an objection was filed by the judgment -debtor Salig Ram to the effect that the amount paid was less by Rs. 200/ - and according to the terms of the decree, the same became a nullity and was not executable. As such he demanded that possession be restored to him. These objections were allowed by the learned Subordinate Judge. Thereafter the Plaintiff decree -holder came in appeal before the learned District Judge and the same has been allowed. It was held that the decree was not a nullity and that it was properly complied with and the entire purchase money was paid to the vendee as provided in the decree. Against that decision of the learned District Judge, the present second execution appeal has been filed by the judgment -debtor Appellant.

(2.) The facts alluded to are undisputed. The sale deed Ex. R.4 executed in favour of the vendee -Appellant clearly provided that the sale consideration was Rs. 2,000/ - out of which Rs. 200/ - were left with the vendee for payment to the mortgagee. The remaining Rs. 1,800/ -were received by the vendor. Ex. R.I is the receipt which the present -Respondent obtained from the mortgagee for these Rs. 200/ -. In fact the mortgagee appeared before the Court as R.W. 1 and stated that he had received Rs. 200/ - from the present Respondent. It is abundantly clear that the vendee -Appellant has not paid these Rs. 200/ - to the mortgagee for which he stipulated in the sale -deed.

(3.) A question at once arises as to what is pre -emption money which is so specified in the order of the learned District Judge. To me, it appears the "pre -emption money" will be nothing but the "purchase money" received by the vendor from the vendee. The right of pre -emption itself is a right of substitution and not of re -purchase. This is a fairly well settled proposition. In Bishan Singh v/s. Khazan Singh, A.I.R. 1954 Peps 59 a Division Bench held that the right of pre -emption is not equal to a right of re -purchase. It is no more than a right of substitution in place of the vendee which puts him in his shoes, but does not make him a transferee from him. To a similar effect is the observation of Full Bench of Punjab High Court of which the report is Ramji Lal and Anr. v/s. The State of Punjab and Ors., 1966 P.L.R. 345. This is the language used by their Lordships: