Khushi Mohd. vs Mahabir Parshad and Others

V.K. Jhanji, J.—This judgment of mine will dispose of two revision petitions, i.e. C.R. No. 1971 of 1985 and CR. No. 1890 of 1985.

Petitioners, Khushi Mohd. in C.R. No. 1971 of 1985 and Sahoon alis Surajuddin in C.R. No. 1890 of 1985, filed suits for possession by way of pre-emption. Decree for pre-emption was passed in favour of Khushi Mohd. on 18.1.1985 whereas decree for pre-emption in favour of Sahoon alias Surajuddin was passed on 4.8.1985. Both of them deposited the pre-emption money in terms of the decrees and therefore, the decrees became final. Khushi Mohd. obtained possession of the property in execution of the decree on 27.4.1985 whereas Sahoon alias Surajuddin obtained possession of the property in execution of the decree on 1.5.1985.

Respondents-judgment-debtors filed an application before the executing Court in the case of Khushi Mohd. on 1.5.1985 stating there in that on 12.4.1985, the Supreme Court had stayed the proceeding in writ petition filed by them under Article 32 of the Constitution of India, challenging the vires of Section 15 of the Punjab Pre-emotion Act as applicable to the State of Haryana. An identical application was filed by the judgment-debtors in the case of Sahoon alias Surajuddin before the executing Court on 7.5.1985 the executing Court vide order dated 7.5.1985 in the case of Sahoon alias Surajuddin ordered restitution of the property to the judgment-debtors without even issuing notice to the petitioner, whereas in the Khushi Mohd a similar order was passed on 10 5.1985. Both these orders are being challenged in the present revision petitions.

After hearing the learned counsel for the parties at length, I am of the view that the impugned orders cannot be sustained. The executing Court while passing the impugned orders took into consideration that order passed by the Supreme Court in writ petitions stating further proceedings becomes operative the moment it is made and not after communication to the subordinate Court. For this purpose, the executing Court relied upon the judgment of Patna High Court in Motiram Roshanlal Coal Co. (P) Ltd. Vs. District Committee and Others, , the executing Court failed to take into consideration the ''explanation'' to Order 4 Rule 5 of the Civil Procedure, which is to the following effect:-

"Explanation-An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance."

Explanation to Order 41 Rule 5, C.P.C. provides that an order by the Appellate Court for stay of execution of the decree becomes effective from the time the same is communicated to the executing Court. Admittedly in the present case, the order of stay was communicated to the executing Court after the possession had been delivered to the petitioner. Therefore, the order of stay had not become effective on the day when the possession was delivered to the day when the possession was delivered to the petitioner. In these circumstances, the executing Court had no jurisdiction to order restitution of the property. The orders under challenge also show that restitution of the property was ordered without even issuing notice to the petitioner. This procedure is clearly violative of principles of natural justice as no order can be passed without giving an opportunity of hearing to the person affected, and therefore, on this ground also, the orders cannot be sustained.

It is not disputed before me that the writ petitions filed by the respondents-judgment-debtors have already been decided by the Supreme Court alongwith many other writ petitions in which the Supreme Court has declared clauses ''First'' ''Secondly'' and ''Thirdly'' of Section 15(1) (a), Clauses ''First'', Secondly'' and ''Thirdly'' of Section 15(1)(b) Clauses, ''First'', Secondly'' and ''Thirdly'' of Section 15 (1) (c) and the whole of Section 15 (2) of Punjab Pre-emption Act, as ultra vires the Constitution. For this, see judgment of the Supreme Court reported as Atam Parkash v. State of Haryana and Ors. (1986) 89 P.L.R. 329

Faced with this situation, learned counsel for the respondent submitted that Supreme Court while deciding the writ petitions of judgment-debtors, alongwith many other writ petitions, has declared clauses ''First'', ''Secondly'', and ''Thirdly'' of Section 15 (1) (a), clauses ''First'', ''Secondly'', and ''Thirdly'' of Section 15 (1) (b), clauses ''First'', ''Secondly'' and ''Thirdly'', of Section 15 (1) (c), and the whole of Section 15(2) of Punjab Pre-emption Act as ultra vires the Constitution and therefore, the respondents are entitled to the restitution of the property. I am afraid to accept this contention because in the present case, the decrees passed in favour of the petitioners have become final and it appears that respondents have not filed any appeal against those decrees. As observed by the Supreme Court in Atam Parkash''s case (supra) in para 14 of the judgment, the decrees which have become final are binding inter parties, and the declaration granted by the Supreme Court will be of no avail to the parties thereto.

Consequently, the revision petitions are allowed and the impugned orders are set aside. However, there shall be no order as to casts.