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PETITIONER: SMT. SHANTI DEVI & ANR

       Vs.

RESPONDENT: HUKUM CHAND

DATE OF JUDGMENT:       22/08/1996

BENCH: N.P.SINGH, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      These appeals  have been  filed, for  setting aside the order dated  March  20,  1990,  passed  by  the  High  Court allowing the civil revision application which had been filed on behalf of the respondent - decree holder.      There is  no dispute  that the  land  in  question  was transferred in  favour of  the appellant  No.1 by one Kishan Chand and  Jagdish Chand in the year 1980. Thereafter a suit for pre-emption  was filed on behalf of the respondent. That suit was decreed on 27.8.1983. The appeal filed on behalf of the appellants  was dismissed  by the  court  of  appeal  on 30.11.1983. Second  appeal filed on behalf of the appellants was  also.   dismissed  by   the  High  Court  on  5.4.1984. Thereafter, the  decree holder  - respondent  took steps for execution of  the decree  for pre-emption  of the  lands  in question in the year 1984. An objection was taken before the executing court  that as  only share in the land in question had been  transferred  the  decree  passed  for  pre-emption cannot be  executed. That  objection found  favour with  the executing court.  Being aggrieved by the order passed by the executing court  the respondent  filed civil revision before the High  Court which was allowed by the impugned order. The High Court  after referring  to the earlier judgments of the said court including the Full Bench judgment observed:           The proposition  laid down  in      the Full  Bench judgment,  referred      to above,  has no  applicability to      the facts  of the  present case. In      that case  the question  was as  to      whether the  sale was  of  specific      khasra No.  out of  the joint land.      The   question   of   getting   the      physical possession of the specific      khasra  nos.   out  of   the  joint      holding   is    governed   by   the      provisions of  the  Code  of  Civil      Procedure, which provides as to how      the decree  for immovable  property      is to  be executed. Admittedly, the      decree is  for specific khasra nos.

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    which were  sold to  the vendee  by      the  vendor.  That  being  so,  the      decree-holder is  entitled  to  the      physical possession of the specific      khasra nos.  though it  may be open      to the  judgment  debtors  to  make      adjustments   at    the   time   of      partition, if any."      Faced with  this situation  aforesaid, on behalf of the appellants it  was submitted  before the  High Court that as the relevant  provisions of the Punjab Pre-emption Act, 1913 had been declared to be unconstitutional by the Constitution Bench of  this Court in the case of Atam Prakash v. State of Haryana &  Ors., reported  in 1986  (2) SCC  249, the decree passed in  the suit  for pre-emption  filed on behalf of the respondent shall  be deemed to be nullity and as such decree cannot  be  executed.  The  High  Court  rejected  the  said objection. This Court in the case of Atam Prakash v.State of Haryana &  Ors has  specifically said  in respect of decrees which had become final as follows:      "We are  told that  in  some  cases      suits are pending in various Courts      and,  where   decrees   have   been      passed,  appeals   are  pending  in      appellate Courts.  Such  suits  and      appeals will  now be disposed of in      accordance  with   the  declaration      granted by  us. We  are  told  that      there are  few  cases  where  suits      have been  decreed and  the decrees      have  become   final,  no   appeals      having  been  filed  against  those      decrees.  The   decrees   will   be      binding   inter-parties   and   the      declaration granted  by us  will be      of  no   avail   to   the   parties      thereto."                      (emphasis supplied) It is,  therefore, apparent  that where  the suits have been decreed and  such decrees have become final since no appeals have been  filed against  the same,  the  said  decrees  are binding  inter-parties  and  the  declaration  made  by  the Supreme Court is of no avail to the parties thereto.      In the  present case  as mentioned  above the  suit for pre-emption  was  decreed  on  27.8.1983.  That  decree  was affirmed by  the court  of appeal  on 30.11.1983. The second appeal filed  before the High Court against the judgment and decree of  the trial  court and  the  court  of  appeal  was dismissed on  5.4.1984. It  is admitted  position that at no stage the  appellants questioned  the validity of the decree question before  this Court.  We are  informed that after 12 years in  the year  1996, a  Special Leave Petition has been filed against  order dated  5.4.1984 passed  in  the  second appeal by  the High  Court. However,  the fact  remains that when the  High Court  allowed the  civil revision  filed  on behalf of  the respondent  on 20.3.1990  the decrees  of the trial court,  the court  of appeal  and the  High  Court  in second appeal  had become  final. As  such the  direction of this Court  in Atam Prakash’s case (supra) that such decrees shall   be   binding   inter-parties   notwithstanding   the declaration of  this Court  in the  aforesaid judgment,  was fully applicable  in the  present case.  The High  Court has rightly come  to the  conclusion  that  notwithstanding  the judgment of  the Constitution  Bench in  the  case  of  Atam Prakash (supra) the decree in the suit for pre-emption filed

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on behalf of the respondent was binding between the parties.      On behalf  of the appellants our attention was drawn to the substituted  Section 15  in the  Punjab Preemption  Act, 1913 which  has been  notified on  7th May,  1995 and it was urged that  after the said amendment no right of pre-emption can be enforced. Section 15 which has been substituted is as follows:      "15. Right  of pre-emption  to vest      in tenant:-      The right of Pre-emption in respect      of sale  of agricultural  land  and      village  immovable  property  shall      vest in  the tenant who holds under      tenancy of  the vendors the land or      property sold or a part thereof."      On a  plain reading  the  aforesaid  section  has  been introduced prospectively  and there  is no  question of  the said section affecting in any manner the judgment and decree passed in  the suit  for pre-emption as early as in the year 1983 affirmed  by the High Court in the second appeal in the year 1984.      According to  us the  impugned order passed by the High Court is  in terms  of the  direction given by this Court in the judgment  of the Constitution Bench in Atam Prakash case (supra) and we find no reason to take a contrary view. These appeals are accordingly dismissed. No costs.