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Noor Mohammad Vs. Mohan Lal Alias Bechey Lal - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1946All465
AppellantNoor Mohammad
RespondentMohan Lal Alias Bechey Lal
Excerpt:
.....board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - in our judgment, the decision of the lower appellate court was perfectly correct and ought to be restored. it is well settled that a right of pre-emption is not a right of re-purchase but of substitution for the buyer and it is this right of substitution that-is affected by a decree passed in a pre-emption suit. the application was, therefore, well within time......november 1937. during the pendency of this application for execution the temporary postponement of execution of decrees act (10 [x] of 1937) came into force on 1st january 1938 and presumably because of this act noor mohammad did not prosecute his application for exe-cution and the same was dismissed for want of prosecution on 21st february 1938. act 10 [x] of 1937 remained in force till 3lst december 1940 and after that act had ceased to be operative noor mohammad again filed an application for execution on 25th april 1941. mohan lai who was in possession of the mortgaged property, objected to the execution of the decree on the ground that the application for execution was time barred. this contention of mohan lai was given effect to by the execution court and the application for.....
Judgment:

Iqbal Ahmad, C.J.

1. This is an appeal by a decree-holder under Clause 10 of the Letters Patent against a judgment of a learned Judge of this Court and arises under the following circumstances. On 5th October 1932, one Lai Mohammad and his two sons, Noor Mohd. and Tabaruk Husain transferred certain zamindari property to two persons named Kanhiya Lai and Lai Singh (hereinafter referred to as vendees) for a sum of Rs. 5000. Half of the sale consideration was paid in cash by the vendees and with respect to the remaining half of the sale consideration, the vendees, on the same date, executed a simple mortgage in favour of Noor Mohammad one of the vendors, hypothecating the property sold. One Mohan Lai brought a suit for pre-emption against the vendees and obtained a decree in the year 1933 and in execution of that decree obtained possession of the property covered by the sale deed of 1932. Thereafter Noor Mohammad put his simple mortgage into suit and eventually obtained a decree for sale in the year 1937 against the vendees and Mohan Lal.

2. Noor Mohammad applied for execution of the decree on 16th November 1937. During the pendency of this application for execution the Temporary Postponement of Execution of Decrees Act (10 [X] of 1937) came into force on 1st January 1938 and presumably because of this Act Noor Mohammad did not prosecute his application for exe-cution and the same was dismissed for want of prosecution on 21st February 1938. Act 10 [X] of 1937 remained in force till 3lst December 1940 and after that Act had ceased to be operative Noor Mohammad again filed an application for execution on 25th April 1941. Mohan Lai who was in possession of the mortgaged property, objected to the execution of the decree on the ground that the application for execution was time barred. This contention of Mohan Lai was given effect to by the execution Court and the application for execution was, accordingly, dismissed as time barred. On appeal by Noor Mohammad, the lower appellate Court reversed the decision of the execution Court and held that the application for execution was within time. Mohan Lai filed an execution second appeal in this Court and a learned Judge of this Court agreed with the trial Court in holding that the application for execution was barred by limitation, and accordingly, reversed the decision of the lower appellate Court and restored the decision of the Court of first instance. In our judgment, the decision of the lower appellate Court was perfectly correct and ought to be restored.

3. Act 10 [X] of 1937, as stated before, remained in force from 1st January 1938 to 31st December 1940 and if this period be excluded in the computation of the period of limitation, the application for execution, dated 25th,April 1941, was admittedly with-an time. It was, however, maintained by Mohan Lal that in view of the provisions of clause (c) of Section 6 of that Act, that Act had no application to the decree under execution. Clause (c) of Section 6 reads as follows:

Nothing herein contained shall...(c) apply to a mortgage decree sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained.

4. The view taken by the learned Judge of this Court was that Mohan Lai was 'a subsequent transferee' within the meaning of this clause and, as such, Act (10 [X] of 1937) was inapplicable and as the application for execution, dated 25th April 1941, was filed more than three years after the dismissal of the first application for execution, the application, dated 25th April 1941, was barred by time. It is not disputed that Mohan Lai got the property mortgaged by virtue of a decree passed in his favour in a pre-emption suit. It is well settled that a right of pre-emption is not a right of re-purchase but of substitution for the buyer and it is this right of substitution that-is affected by a decree passed in a pre-emption suit. In the Agra Pre-emption Act (11 [XI] of 1922), the phrase 'right of pre-emption' is defined as meaning 'the right of a per-son on a transfer of immovable property to be substituted in place of the transferee by reason of such right.' It is manifest, therefore, that by virtue of a decree in a pre-emption suit the pre-emptor is substituted in place of the vendee. The pre-emptor does not get the property purchased by virtue of a transfer in his favour by the vendee but by virtue of the decree passed in his favour which substitutes him for the original transferee. In other words, the vendee does not transfer the property purchased by him to the pre-emptor but, on the other hand, the pre-emptor, by enforcement of the right of pre-emption, takes the place of the vendee and, more often than not, against the vendee's consent. We, therefore, find it impossible to hold that a pre-emptor is 'a subsequent transferee who has taken the transfer subject to the mortgage' within the meaning of Clause (c) of Section 6. In view of this conclusion, it is clear that Section 6 of Act 10 [X] of 1987 had no application to the case and the time during which that Act remained in force has to be excluded in the computation of the period of limitation. The application was, therefore, well within time.

5. For the reasons given above, we allow this appeal, set aside the judgment of the learned Judge of this Court and restore the decision of the lower appellate. Court with costs in all Courts. The record will be sent down to the Court below forthwith and that Court will proceed with the disposal of the application for execution in accordance with law.


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