Salig Ram vs Dhani Ram

D.B. Lal, J.—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 u/s 152 of the CPC 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.

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.

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. Khazan Singh AIR 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. The State of Punjab and Ors. 1966 P.L.R. 345. This is the language used by their Lordships:

We are only concerned in a suit for pre-emption with a Plaintiff''s preferential right to acquire the property and to get himself substituted for the vendee in the sale which he wishes to pre-empt and not with the question as to when he becomes the owner of the property after his suit for pre-emption has been decreed.

Thus our concern in the present dispute will be to enquire how far the pre-emptor has substituted himself for the vendee in the sale. This would necessarily mean that a reference will be made to the terms and conditions incorporated in the sale deed. If Rs. 200/- were left with the vendee to be paid to the mortgagee, the same condition will apply to the pre-emptor. In the present case the pre-emptor has done nothing but compliance of this condition laid down in the sale deed. The real purchase money was only Rs. 1,800/- and not Rs. 2,000/-. The vendor cannot be paid more than what he was entitled to receive under the sale deed.

To me, therefore, it appears that the Respondent complied with the terms of the decree passed by the learned District Judge. The pre-emption money was nothing but the purchase money actually payable to the vendee. That amount was only Rs. 1,800/-, and Rs. 200/- were to be paid to the mortgagee. Before the learned District Judge the application u/s 152 of the Civil P. Code was not maintainable because no clerical or arithmetical error was detected and the attention of the learned Judge was invited to that Section. It is true that a pointed reference was made to these Rs. 200/-, but that will not improve the position of the Appellant in any manner. Therefore, the plea that the decision of the learned District Judge on the application u/s 152 had become final will again be immaterial. The learned District Judge did not think it proper to amend the decree under that Section for the obvious reason that no clerical or arithmetical error was detected. The real question in controversy at present before us was not to be agitated in that application.

It was contended by the learned Counsel that the executing Court cannot go behind the decree. There can be no quarrel with this proposition. As I have already held, the Respondent has complied with the terms of the decree. This Court is also enforcing the decree as has been done by the learned District Judge against whose decision the present appeal is filed. It cannot be argued that the sale was made subject to the mortgage. In fact the mortgage money was required to be paid with a consequence that the mortgage was to be redeemed and thus effaced out. It would be wrong to say that the sale was made subject to the mortgage.

The learned Counsel for the Respondent also relied on two decisions: Kapuria Mal and Anr. v. Wall Muhmmad and Ors. AIR 1922 Lah 142 and Sher Singh v. Durga Das and Anr. AIR 1939 Lah 376. In Kapuria Mal and Anr. (supra) the pre-emptor decree holder had deducted the amount of costs from the pre-emption money. Since he was entitled to costs under the order of the Court, it was held that a substantial compliance with the terms of the decree was made and the suit could not be dismissed. In Sher Singh (supra) which is a case very much analogous to the present suit, a decree in favour of pre-emptor was passed and the sale price was to be paid before a fixed date. One day before that date the pre-emptor applied that he should be permitted to deposit lesser amount because a certain amount was to be paid to the mortgagee of vendor out of the sale price. The application was provisionally granted but subsequently dismissed. The time granted for payment under the decree thus expired and the objection was taken that the suit should be dismissed. This objection prevailed and the suit was dismissed. Subsequently a revision petition was filed in the High Court and a question arose whether appeal was maintainable or not. The Court held that the appeal was not maintainable and therefore the revision petition was rightly filed. At the same time the Court acknowledged the validity of the claim set up by the pre-emptor inasmuch as he was entitled to pay back the mortgagee who was agreed to be paid by the vendor. Since the Court had not made any enquiry as to whether the payment was actually made to the mortgagee, the case was remanded for a proper investigation if the mortgagee was paid back by the pre-emptor. The revision petition was accepted and the order dismissing the suit was set aside.

In this view of the matter, I am confident in my view that the decree-holder pre-emptor complied with the terms of the decree and only Rs. 1,800/- were payable which payment he made within the prescribed period. As such the decree could not be considered a nullity and the decision of the learned Distict Judge was perfectly correct. I would accordingly dismiss the appeal with costs.