Shiv Dayal vs Randhir Singh and Others

L.N. Mittal, J.—Shiv Dayal decree holder (DH)/plaintiff has filed this revision petition under Article 227 of the Constitution of India impugning order dated 27.9.2011 passed by the executing court thereby allowing objections of judgment debtors (JDs)/respondents and thereby dismissing the execution petition filed by the petitioner-DH. Suit filed by the petitioner against respondents (including their predecessors) for pre-emption of the suit land claiming preferential right of pre-emption on two grounds i.e. being co-sharer in the land and also being brother of the vendor, was decreed by the trial court vide judgment dated 13.9.1983 Annexure P/1 and was upheld upto Hon''ble Supreme Court. The petitioner filed execution petition wherein the JDs/respondents raised objection that the decree is inexecutable in view of judgment of Hon''ble Supreme Court in Atam Prakash Vs. State of Haryana and Others, because the right of pre-emption on the basis of consanguinity (relationship) has been held to be unconstitutional and struck off. The said plea has been accepted by the executing court and thereby allowing objections of the JDs, execution petition has been dismissed.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that in view of judgment in the case of Atam Prakash (supra), right of pre-emption of the petitioner on the basis of being brother of the vendor stood extinguished, but preemption right of the petitioner on the ground of co-sharer ship still survived.

On the other hand, counsel for the respondents very vehemently, emphatically and repeatedly contended that the petitioner claimed his right as co-sharer on the ground of being brother of the vendor and therefore, the petitioner was left with no right of pre-emption in view of judgment in the case of Atam Prakash (supra).

I have carefully considered the matter. Perusal of judgment Annexure P/1 passed by the trial court reveals that the plaintiff-petitioner claimed preferential right of pre-emption on two distinct grounds i.e. being co-sharer in the land in question and also as brother of the vendor. His said right has been upheld by the trial court on both grounds vide judgment Annexure P/1 and has been upheld upto Hon''ble Supreme Court. In the case of Atam Prakash (supra), section 15(1)(b) of the Punjab Pre-emption Act, 1913 (in short, the Act) as applicable to Haryana has not been completely struck off or declared ultra vires. On the contrary, only clauses ''First'', ''Secondly'' and ''Thirdly'' of section 15(1)(b) of the Act had been held to be ultra vires the Constitution, thereby retaining clauses ''Fourthly'' and ''Fifthly'' on the statute book. Petitioner''s preferential right of pre-emption on the ground of being co-sharer is covered by clause ''Fourthly'' of section 15(1)(b) of the Act and the said clause ''Fourthly'' has not been declared ultra vires the Constitution in the case of Atam Prakash (supra). Consequently, plaintiff''s right of pre-emption only on the ground of being brother of the vendor as provided in clause ''Secondly'' of section 15(1)(b) of the Act stood extinguished because the said clause has been declared ultra vires the Constitution. However, plaintiff still retained his preferential right of preemption under clause ''Fourthly'' of section 15(1)(b) of the Act on the ground of being co-sharer in the land because the said clause has not been declared ultra vires the Constitution in the case of Atam Prakash (supra). It is, thus, manifest that the decree holder retained his right of pre-emption as co-sharer inspite of judgment in the case of Atam Prakash (supra) whereby the petitioner lost his right of pre-emption on the ground of being brother of the vendor.

It would not be out of place to notice that even the Hon''ble Supreme Court vide order 19.1.2004 Annexure P/2 in appeal preferred by the respondents/JDs has specifically observed that in the case of Atam Prakash (supra), right of pre-emption merely on the basis of consanguinity was set aside while sustaining the right of pre-emption to co-sharer. Thus, the Hon''ble Supreme Court in the instant case itself has upheld the preferential right of pre-emption of the plaintiff-petitioner on the ground of being co-sharer in the land in question.

It is, thus, apparent that the decree passed in favour of the petitioner is still executable, notwithstanding judgment of Hon''ble Supreme Court in the case of Atam Prakash (supra). Learned executing court committed grave illegality and jurisdictional error in dismissing the execution petition. Accordingly, the instant revision petition is allowed. Impugned order passed by the executing court is set aside. Objections preferred by respondents/JDs stand dismissed. The execution petition is restored to the files of the executing court for proceeding with the execution proceedings in accordance with law.

Parties are directed to appear before the executing court on 30.9.2013. Civil miscellaneous application, if any pending, is disposed of as having been rendered infructuous.