Skip to content


Mithan Lal Vs. Chuni Lal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H22
AppellantMithan Lal
RespondentChuni Lal
Cases ReferredGur Bakhsh Singh v. Sardar Singh
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is now well-settled that the words 'in execution' are not used in that narrow technical sense in which execution of a decree takes place under the provisions of the civil procedure code, but they are very wide and simply mean 'in obedience to,'in compliance with,'or 'in accordance with......and the fact that the auction was to take place be proclaimed in the whole town a day before the auction sale was to be held;(2) that the auction sale would continue from 10 a.m., to 4 p. m. under the supervision of the senior subordinate judge;(3) that the sale would be knocked down in favour of the last bidder who would pay the entire amount of the bid oh the spot;(4) that out of the amount thus realised rs. 570 would be paid to mangal sain on the spot and the balance would be delivered to the next friend of the appellants and the guardian of respondent 3 i.e. amar, nath's son, on their furnishing requisite security;(5) that the doctrine of caveat emptor would apply to the transaction and the auction purchaser would buy the property on his own responsibility;(6) that after the.....
Judgment:

Teja Singh, J.

1. This second appeal arises out of a suit for pre-emption and the only question that falls for determination is whether the sale which was the subject-matter of the suit could be pre-empted under law.

2. The facts briefly stated are as follows: One Amar Nath and his brother Jai Chand were joint owners of a house situate in Sonepat. On uth July 1937, Amar Nath sold his half share to Mangal Sain for Rs. 300. About four years later the son of Amar Nath and the sons of his brother Jai Chand, who were all minors, brought a suit for declaration that Amar Nath had no power to mortgage his share and that the mortgage was void against them. The trial Court dismissed the suit. Only the sons of Jai Chand preferred an appeal to the Court of the Senior Subordinate Judge. During the pendency of the appeal a compromise was arrived at between the parties on 12th July 1943. The terms of the compromise inter alia were:

(1) that the whole house be auctioned by the Court Auctioneer under the supervision of the Court at the Dak Bungalow Sonepat and the fact that the auction was to take place be proclaimed in the whole town a day before the auction sale was to be held;

(2) that the auction sale would continue from 10 a.m., to 4 p. m. under the supervision of the Senior Subordinate Judge;

(3) that the sale would be knocked down in favour of the last bidder who would pay the entire amount of the bid oh the spot;

(4) that out of the amount thus realised Rs. 570 would be paid to Mangal Sain on the spot and the balance would be delivered to the next friend of the appellants and the guardian of respondent 3 i.e. Amar, Nath's son, on their furnishing requisite security;

(5) that the doctrine of caveat emptor would apply to the transaction and the auction purchaser would buy the property on his own responsibility;

(6) that after the auction sale has been sanctioned, the next friend of the appellants and the guardian of respondent 3 would execute the deed of sale in favour of the auction-purchaser and would get it registered.

3. The Court after having recorded parties' statements ordered the auction sale of the house to take place on 31st July 1943 and further directed that the sale be advertised in accordance with the terms of the compromise. The auction sale was actually held on 31st July 1943 under the supervision of the Senior Subordinate Judge. Chuni Lal was the last bidder. On 2nd August 1943 the Court recorded the following order:

Sale having taken place in accordance with the terms of the compromise, the appeal be dismissed.

The plaintiff brought the suit for pre-emption on 31st July 1944.

4. Sub-section (5) of Section 3, Punjab Pre-emption Act, lays down that a sale shall not include, inter alia, a sale in execution of a decree for money or of an order of a civil, criminal or revenue Court or of a revenue officer. The contention of the contesting defendant was-and this contention has found favour with the Courts below that the sale in question was in execution of an order of a civil Court and consequently no suit for pre-emption lay in respect thereof. To start with, the appellant's counsel argued that though the sale was held by the court auctioneer under the supervision of the Court, virtually it was a sale by the nest friend of Jai Chand's sons, who were the appellants before the Senior Subordinate Judge, and the guardian of Amar Nath's son and it was, therefore, not hit by Sub-section (5) of Section 3. The contention appears to me to be wholly devoid of force because it is clear both from the compromise deed put in by the parties in the Senior Sub. ordinate Judge's Court and the order of the Court passed thereon, which had been referred to above, that the sale was conducted and completed by the Court through the court auctioneer. It is true that according to one of the terms of the compromise the deed evidencing the auction sale had to be executed by the next friend and guardian respectively of the minors concerned, but this does not affect the question before us, because so far as the factum of the sale is concerned, it was made by the court-auctioneer in obedience to the orders of the Court. It is now well-settled that the words 'in execution' are not used in that narrow technical sense in which execution of a decree takes place under the provisions of the Civil Procedure Code, but they are very wide and simply mean 'in obedience to,' 'in compliance with,' or 'in accordance with.'

5. It was argued before us that so far as an order of a civil Court is concerned, the procedure for executing it is the same as that for executing a decree. This is probably correct, but the operation of Sub-section (5) extends not only to an order of a civil Court but also to an order of a criminal or revenue Court or of a Revenue Officer. Whatever may be the condition regarding the orders of a revenue Court or Revenue Officer the provisions of the Civil Procedure Code have no application whatsoever to the orders of a criminal Court and since they are grouped together, the term 'in execution' could not but have been used in a very wide sense. This objection of the appellant's counsel is, therefore, overruled.

6. The next point urged was that the order of the Senior Subordinate Judge dated 12th July 1943, in compliance with which the auction sale was made, was not a legal order. The counsel argued that the procedure to be adopted by a Court, when it is proved to its satisfaction that a suit had been adjusted by any lawful agreement or compromise, is laid down in Rule 3 of Order 23 and in accordance with the provisions of that rule all that the Court was empowered to do was to pass a decree in accordance with the terms of the compromise. The counsel, however, forgets that as the terms of the compromise arrived at between the parties stood, no effect could be given to them unless and until the property had been sold under the supervision of the Court and it was only after the sale has taken place that the compromise could be said to have been completed. Accordingly, to implement the most important condition of the compromise, which related to the auction sale, the Court directed the sale to be held and after the sale had been completed, passed the final order dismissing the appeal. This, in my opinion, amounted to full compliance with the provisions of Order 23, Rule 3. The fact that the order regarding the sale was passed at the instance of the parties and by virtue of the compromise arrived at between them is wholly immaterial. All that has to be seen is whether there was an order of the Court and whether the sale took place in compliance with that order. As both these questions in the present case cannot but be answered in the affirmative this objection of the learned Counsel must also be overruled.

7. The other point urged by the counsel was that the previous suit not being a suit for the recovery of money, if the Court has passed any decree directing the sale of the property, the same would not have been hit by Sub-section (5) of Section 3, Pre-emption Act, inasmuch as it would not be a decree for money. This contention appears; to me to be correct, but I do not understand how it can help the appellant. The decree ultimately passed by the appellate Court was for the dismissal of the suit and accordingly no question relating to the execution of that decree arose. Moreover it was not in execution of a decree that the sale which the plaintiff pre-empted took place. On the other hand, it was in compliance with an order and so far as the term 'order' used in Sub-clause (a) of Section 3(5) is concerned, it is not qualified by the words 'for money.' It may be pointed out that in the Pre-emption Act of 1905 sales in execution of all kinds of decrees were exempt. The words of the sub-clause were:

A sale in execution of a decree or of an order,' etc.

8. The words 'for money' that appear in Act 1 [I] of 1913 were not present in the Act of 1905. There can be no doubt that by inserting these words for the first time in the present Act the intention of the Legislature was to limit the operation of Sub-section (5) to decrees for money and the fact that no such words were used to qualify the term 'order' would go to show that no such limitation was intended as regards orders. This conclusion is further strengthened by the fact that all kinds of orders including those of criminal Courts are mentioned,

9. The appellant's counsel cited a number of rulings, but not one of them appears to me to be applicable to the facts of the present case. He particularly laid stress upon a Full Bench decision of the Lahore High Court reported as Gur Bakhsh Singh v. Sardar Singh A.I.R. 1935 Lah. 268 (F.B.) in which it was held that the act of an Official Receiver in selling the property of an insolvent is not an act in execution of the order of a Court, and therefore the sale made by an Official Receiver of an insolvent's property in the course of insolvency proceedings is subject to the right of pre-emption. I cannot understand what bearing this ruling has, upon the present case. Here the sale was ordered by the Court and it was in compliance with the orders of the Courts that it took place. Moreover this Pull Bench decision has since been overruled by a larger Bench of the Lahore High Court in Rup Devi v. Matwal Chand L.P.A. No. 34 of 1945. Thai case has not yet been reported, but my learned brother Khosla, J. who was a member of the Bench who decided the latter case, tells me that the principle enunciated in Gur Bakhsh Singh v. Sardar Singh, 16 Lah. 173: A.I.R. 1935 Lah. 268 (FB) was expressly dissented from by that Bench.

9. The result, in my opinion, is that the appeal must stand dismissed with costs.

Khosla, J.

I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //