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Gaya and ors. Vs. Ram Sahai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All107
AppellantGaya and ors.
RespondentRam Sahai
Excerpt:
.....1877 (limitation act), section 5, schedule ii, no. 156--execution of decree--sale of property by decree-holder before obtaining possession--decree-holder's right not forfeited. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under..........principles laid down in these two rulings govern the present case, because the action of the pre-emptor-decree-holder, in transferring the pre-emptional property (included in the decree), by executing the sale-deed of the 29th november 1883, virtually amounted to transfer of the decree itself, and should therefore operate in defeasance of the pre-emptor-decree-holder's right to execute the decree.3. we are of opinion that this contention, though plausible, has no real force. in the case of rajjo v. laiman i.l.r. 5 all. 180 the transfer had been made by the plaintiff-pre-emptor before his suit was decreed, and in the case of sarju prasad v. jumna prasad s.a. from order no. 45 of 1883 decided the 21st november 1883 the person who was seeking to execute the decree was not the.....
Judgment:

Mahmood, J.

1. We have no hesitation in holding that the first part of the argument addressed to us on behalf of the appellant is unsound. Beading Section 5 with Article 156, Schedule ii, of the Limitation Act (XV of 1877), there can be no doubt that the period of limitation for preferring an appeal from the decree of the 30th June 1883, did not expire till the 19th November 1883, when this Court re-opened, and the decree cannot before be regarded as having become final before that date. The point before us is governed by the principle laid down by this Court in Shaikh Ewaz v. Mokuna Bibi I.L.R. 1 All. 132 and following that ruling, we disallow the two first grounds of appeal.

2. The second question, however, which forms the subject of the remaining grounds of appeal, is a point of some nicety. In the case of Rajjo v. Lalman I.L.R. 5 All. 180 this Court laid down the principle that when a pre-emptor, in anticipation of the success of his pre-emptive claim, transfers the pre-emptional property in any manner inconsistent with the object of the suit for preemption, such transfer operates as forfeiture of the pre-emptive right, and the suit for pre-emption must, therefore, be dismissed. Again, in the unreported case of Sarju Prasad v. Jamna Prasad S.A. from Order No. 45 of 1883 decided the 21st November 1883, Straight and Tyrbell, JJ., laid down the rule that a decree for pre-emption, being purely personal in its character, could not be transferred so as to entitle the purchaser to execute the decree. The learned pleaders for the appellant contend that the principles laid down in these two rulings govern the present case, because the action of the pre-emptor-decree-holder, in transferring the pre-emptional property (included in the decree), by executing the sale-deed of the 29th November 1883, virtually amounted to transfer of the decree itself, and should therefore operate in defeasance of the pre-emptor-decree-holder's right to execute the decree.

3. We are of opinion that this contention, though plausible, has no real force. In the case of Rajjo v. Laiman I.L.R. 5 All. 180 the transfer had been made by the plaintiff-pre-emptor before his suit was decreed, and in the case of Sarju Prasad v. Jumna Prasad S.A. from Order No. 45 of 1883 decided the 21st November 1883 the person who was seeking to execute the decree was not the pre-emptor-decree-holder, but the person to whom the decree had been transferred. We agree with the rules laid down in both these cases; but they are distinguishable in principle from the case now before us. In the former of these cases, the question was whether the plaintiff-pre emptor, who had himself infringed the right of pre-emption in connection with the property in suit, should be allowed to obtain a decree for pre-emption; and the effect of the latter ruling was to uphold the principle, that no decree of Court passed in a suit for pre-emption can be so transferred as to invest the transferee with the right of obtaining possession of the pre-emptional property by executing that decree. The case now before us is one in which the pre-emptors right of pre-emption had already been established by a decree which had become final before the sale-deed of the 29th November 1883, was executed. That sale-deed did not transfer the decree, but the property, to the proprietary possession of which the pre-emptor-decree-holder was entitled, subject only to the payment of the purchase-money within time. It is not necessary forthe purposes of this appeal to determine whether the sale-deed was valid. The question is one which, if it ever arises, can be finally determined only in a suit between the pre-emptor-decree-holder and his vendee, Ambika Prasad. So long as the latter does not seek execution of the decree, the matter cannot be regarded as a question relating to the execution of the decree, such as would fall under the purview of Section 244 of the Civil Procedure Code. The parties to the decree are bound by the terms of the decree itself, and the Court executing the decree has no power to go behind it, to declare it annulled, or to enter into any questions which are beyond the scope of the decree. The rules of procedure, therefore, precluded the Court below from entertaining the objections of the judgment-debtor-appellant so far as they were based upon the sale-deed executed by the pre-emptor-decree-bolder, who, in praying for execution of the decree, was obeying its terms. Nor can the decree be regarded as annulled by reason of the fact that the money was deposited on behalf of the pre-emptor-decree-holder by Ambika Prasad under the terms of the decree. All that the appellant was entitled to was the right of receiving the purchase-money before delivering possession of the pre-emptional property to the decree-holder. That decree-holder, and not Ambika Prasad, is the person who, in the proceedings from which this appeal has arisen, is seeking to obtain possession of the property, and it is of no consequence that the purchase-money was deposited by the latter on behalf of the former. For it is clear that the pre-emptor-decree-holder, and not Ambika Prasad, is the person to whom possession must be delivered in execution of the decree, and that if Ambika Prasad has any valid rights under the sale-deed, he can enforce them only by a separate suit.

4. This last circumstance distinguishes the present case in principle from the ruling in the case of Sarju Prasad v. Jamna Prasad Not reported S.A. from Order No. 45 of 1883. If in the present case Ambika Prasad were the transferee of the pre-emptive decree, seeking by virtue of that decree to obtain possession of the pre-emptional property, we should have disallowed his application for execution. But such is not the case, and the authority referred to does not therefore govern this case.

5. The distinction which we have thus drawn is not merely technical, but is based on fundamental principles of the law of pre-emption. The sole object of the right of pre-emption is the exclusion of such strangers as are objectionable to the pre-emptive co-sharars of the vendor. And if a decree for pre-emption were capable of transfer, so as to enable the transferee to obtain possession of the pre-emptional property in execution of that decree, it is clear that the object of the right of pre-emption would be defeated, for the transferee of the decree may be as much a stranger as the vendee against whom the decree was obtained, or that the latter may be a pre-emptor of a lower grade than the pre-emptor who originally obtained the decree.

6. A decree once passed cannot, as we have already said, be questioned by any of the parties thereto when the decree is being executed, and if a decree lor pre-emption could be validly transferred, the effect would be to place the transferee in possession without the trial of the question whether such transferee had the pre-emptive right in preference to the vendee against whom the decree was obtained. Nor could the sale of a pre-emptive decree be regarded as giving rise to a fresh cause of action for a separate suit to enforce preemption, and it follows that, not only the rights of the vendee-judgment-debtor, but also those of other co-sharers, might be injured by allowing the transferee of a pre-emptive decree to take out execution. On the other hand, in a case like the present, where the pre-emptional property and not the decree has been transferred, the effect of executing the decree can only be to place the pre-emptor-decree-holder in possession of the pre-emptional property, and the sale-deed executed by him, if valid, would give rise to a separate cause of action for a pre-emptive suit to be instituted by any person or persons who may consider the sale as having infringed their pre-emptive right. In the present case, whether the sale-deed of the 29th November 1883, be valid or invalid, it must necessarily remain in abeyance till the pre-emptor-decree-holder obtains possession of the pre-emptional property under the decree; and, under this view, the present case is analogous to one in which the pre-emptor-decree-holder, immediately after obtaining possession under the decree, sells the property.

7. For these reasons, and without prejudice to any rights that may arise out of the sale-deed of the 29th November 1883, we hold that the Court below was right in allowing the execution of the decree at the instance of the plaintiff-pre-emptor, and we dismiss this appeal with costs.


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