' KHALIL-UR-REHMAN KHAN, J.-This revision under section 115, C. P. C. Is directed against the judgment dated 11-3-1976 of the learned District Judge, Muzaffargarh whereby accepting the objection petition of Ghulam Muhammad respondent the execution application filed by the petitioner was dismissed.
' The facts necessary- for appreciating the respective pleas of the parties are that the land in dispute measuring 8 Kanals was sold by Ghulam Sarwar to Ghulam Muhammad respondent No, 1.
Allah Dewaya deceased pre-empted the sale by filing a suit on 21-3-1965 and the said suit was decreed vide judgment and decree, dated 29-4-1966. Ghulam Muhammad vendee-respondent No, 1 filed appeal against the pre-emption decree obtained by aforesaid Allah Dewaya and the suit was remanded vide judgment dated 13-9-1965. Again vide judgment and decree dated 13-12-1966 the suit for pre-emption was decreed on the payment of Rs, 6,500. The pre-emptor deposited Rs, 1,300 as Zare-Panjam on 26-4-1965. Another sum of Rs, 700 was deposited by him on 12-5-1966 and Rs, 4,500 was deposited on 17-1-1967. The pre-emptor thus deposited the entire preemption money of Rs, 6,500 in compliance of the, decree dated 13-12-1966. Ghulam Muhammad respondent No,-1 withdrew- the said amount from the Court on 26-1-1967. Allah Dewaya the pre-emptor vide registered agreement to sell agreed to sell the land in question for a sum of Rs, 97,000 in January, 1967. He then on 16-1-1967 filed an application seeking correction of the description of the land in dispute incorporated in the decree. This application was accepted by the learned trial Court vide order, dated 2-10-1967. This order was challenged by Ghulam Muhammad respondent No, 1 by filing revision petition (Civil Revision No, 646 of 1967) in the High Court. Imam Bakhsh in whose favour the land in question was agreed to be sold got himself impleaded as respondent in the aforesaid revision petition. The revision petition of Ghulam Muhammad was dismissed by the High Court on 12-1-1972. A review petition filed was also dismissed and the petition for leave to appeal filed by Ghulam Muhammad respondent was also dismissed by the Supreme Court on 27-11-1972.
Thereafter, Ghulam Muhammad respondent filed a civil suit to challenge the order directing rectification of the description of the land incorporated in the decree. In this suit Imam Bakhsh was impleaded as a party. The suit was, however, dismissed on 18-12-1973 and the appeal filed to challenge the decree of dismissal of suit was dismissed on 13-12-1974. Ghulam Muhammad then filed regular second appeal in this Court and the same was dismissed on 1-7-1975. The petition for leave to appeal was also dismissed by the Supreme Court on 10-12-1975.
3, During the pendency of aforesaid litigation between Allah Dewaya pre-emptor and Ghulam Muhammad vendee-respondent in which litigation Imam Bakhsh was also a party, a declaratory suit was fried by Imam Bakhsh against Allah Dewaya in the civil Court. This declaratory suit was decreed vide decree Exh. R. I. Dated 11-12-1967. This decree reads as under :- {{URDU TEXT}} ' At this stage reference may be made to the application Exh. P. 3 dated 11-12-1967 filed by Allah Dewaya and Imam Bakhsh in the aforesaid declaratory suit in the Court of Administrative Civil Judge, Muzaffargar h. The contents of this application may be reproduced in extensor {{URDU TEXT}} Allah Dewaya, pre-emptor elide in the meanwhile and is now represented by his legal heirs, respondents Nos. 2 to 5. Imam Bakhsh then filed execution application ion dated 21-7-1972 in the Executing Court seeking execution of the decree of pre-emption dated 13-12-1966. In this application he described himself as purchaser of the decree. Ghulam Muhammad respondent opposed the execution application with the plea that Imam Bakhsh has no right to execute the decree as he cannot be treated as !`the holder of the decree". 7; he heirs of Allah Dewaya pre- emptor submitted an application dated 22-6-1 973 through their General Attorney and brother Bukka. In this application it was stated that they have no objection to the execution, of the decree by Imam Bakhsh as their father in his lifetime had transferred the land to hint and as such they had no concern with the land in question. Later on, Mst. Almo and Mst. Malookan daughter and wife, respectively of Allah Dewaya pre-emptor, however, submitted applications challenging the right of Imam Bakhsh petitioner to execute the decree. The learned Executing Court on the basis of the pleadings of the parties framed the following issues :-
(1) 'Whether the execution petition is time-barred ?
(2) Whether the decree for pre-emption is not liable to be sold and as such Imam Bakhsh Shah has no locus standi to file execution petition ?
(3) Whether the execution petition is not competent in view of objections No, "JIM" to "Seen" ?
(4) Whether Imam Bakhsh Shah is not a holder of decree ? If so, its effect ?
(5) Whether Imam Bakhsh Shah purchased the land comprised in the decree obtained by Allah Dewaya deceased ?
(6) Whether any Martial Law Regulation intervenes in execution of their decree ? If so, its effect ?
(7) Whether the objector Almon and Malookan have no locus standi to file their objection petitions ?
(8) Whether the objectors Almon and Malookan are estopped from filing their objection petitions ?
(9) Whether the matter in dispute between the parties stands decided by the High Court and Supreme Court ?
(10) Relief.
4. Learned Executing Court after recording the evidence decided Issues Nos. 1, 2, 4, 6 and 7 against Ghulam Muhammad judgment-debtor. Issues Nos. 5 and 8 were decided in favour of Imam Bakhsh petitioner. The objection was resultantly rejected by the Executing Court vide order, dated 13-10-1975. This led to the filing of an appeal by Ghulam Munammad judgment-debtor respondent No,
1. In appeal, findings on Issues Nos. 1, 2 and 9 were challenged. The learned appellate Court accepted the appeal tide judgment, dated 11-3-1976 as the learned District Judge was of the view that Imam Bakhsh petitioner who was actually the transferee of the decree had no locus standi to file the execution application. He thus decided Issue No, 2 against the petitioner. The finding on Issue No, 1 of the Executing Court was maintained and it was held that the execution application was not barred by time. The finding of the Executing Court on Issue No, 9 was reversed and it was held that the matter in dispute had not been decided by the High Court, earlier.
5. The only question argued by the parties in the revision petition was whether Imam Bakhsh petitioner had the right to execute the preemption decree dated 13-12-1966. The case of the learned counsel for the petitioner was that Imam Bakhsh petitioner was not the purchaser of the pre-emption decree but was the person in whom vested not only the land subject-matter of the decree but also all the rights claimable under the decree together with the right to execute the decree and as such Imam. Bakhsh had the necessary locus standi to file execution application and obtain possession of the land in question..
Learned counsel for Ghulam Muhammad respondent, in reply, contended that pre-emption decree cannot be sold as by its very nature it is a non-transferable decree and as such on the basis of the decrees dated 27-11-1967 the petitioner cannot in law seek execution of the pre-emption decree. In support of this argument reliance was placed on Mehr Khan and another v. Ghulam Rasool (1) and Lal Din v. Allah Din (2). It was further contended that the declaratory decree, dated 11-12-1967 obtained by the petitioner does not amount to assignment of the decree and the petitioner thus is neither the holder nor the assignee of the decree and as such he cannot seek possession of the land in question in execution of the pre-emption decree. Reference was made to Mathurapur Zemindary Co. Ltd. v. Bhasaram Standal and others (3) and Firm Khushaldas Lekhraj v. Firm Jhamandas Mahercandani (4). Lastly, it was contended that new plea cannot be allowed to be raised in revision and as such the plea that the petitioner was not executing the decree as purchaser of the decree but as a person claiming under the decree-holder should not be entertained.
6. Before dealing with the respective pleas of the parties, it will be appropriate to take note of certain important aspects of the matter which have important bearing on the controversy raised.
These are as follows : ' The legal representatives of Allah Dewaya decree-holder at first conceded the right of Imam Bakhsh petitioner to execute the pre-emption decree. Later on the wife and the daughter of the decree-holder filed application to oppose the execution application. The issues framed in respect of this opposition viz. Issues Nos. 7 and 8 were decided against them by the Executing Court. Mst.
Almo daughter of Allah Dawaya decree-holder out of the legal representatives alone joined Ghulam Muhammad respondent in the appeal filed against the judgment of the Executing Court. In this appeal findings on Issues Nos. 7 and 8 were not challenged and then this revision was not opposed by Mst. Almo as it was only Ghulam Muhammad who has contested this revision petition.
It is therefore apparent that Ghulam Muhammad respondent alone is contesting the right of the petitioner to obtain possession of the land in execution of the decree. So the question arises whether Ghulam Muhammad respondent is entitled in law to object to the execution of the decree.
If he is so entitled Whether he has lost his right to object. A judgment-debtor is entitled to oppose execution of a decree passed against him on the basis of the objections available to him under law provided he is not debarred to do so under A any law or due to his own conduct. In the instant case Ghulam Muhammad respondent judgment-debtor withdrew the pre-emption money from the Court and thus accepted the pre-emption decree passed against him. The pre-emption decree was not appealed against and the same has attained finality. Ghulam Muhammad respondent, judgment-debtor by raising one objection or the other and by instituting revision proceedings is continuing in possession of the land since 1967 in spite of the receipt of the value of the land by withdrawing the pre-emption money and without even offering to pay back the money received. It is also pertinent to note that Ghulam Muhammad respondent has not filed a suit to pre-empt the sale made by Allah Dewaya in favour of Imam Bakhsh petitioner. All that the respondent being a vendee was entitled to, was the right of receiving the purchase money before delivering the possession of the pre-emptional property to decree-holder; In these circumstances it is doubtful whether the respondent can successfully resist the delivery of possession of the land in dispute to the petitioner. It is also pertinent to note that Allah Dewaya pre-emptor
(1) I L R 1921 Lah. 282 (2) PLD 1967 Lah. 703
(3) AIR 1924 Cal. 661 (4) AIR 1944 Sind 230 had agreed to sell the land after obtaining the pre-emption decree, and the declaratory decree conceding the ownership of the petitioner in the land in question, was also made much after the pre-emption decree.
7. Now the pleas on merits of the parties may be dealt with. The plea that on the basis of decree dated 11-12-1967 Imam Bakhsh petitioner does not become the transferee of the pre-emption decree within the meaning of Order XXI, rule 16, C. P. C. Is well founded. It is well settled that a declaratory decree does not create or confer any new right but declares a pre-existing right and as such when a declaratory decree declares the right of the decree-holder to another decree passed in an earlier suit there is no divesting of interest of one person and vesting of it in "another.
There is no transfer at all and therefore a person in whose favour a declaratory decree is passed does not fall within Order XXI, rule 16, C. P. C. It is also fully established that for an assignment in writing though no e particular form of words is required yet there must be some written authority proceeding from the transferor of the decree and operating so as to vest the decree in the transferee. The written authority must manifest the will of the transferor to transfer. A decree per se does not fulfil these conditions because decree is the act of the Court and though it may in the case of a consent decree be founded on the previous agreement of the parties, it is nevertheless not itself a written authority or assignment by the transferor. The aforesaid view was taken in G. N.
Asundi v. Virappa Andaneppa Manvi (1), Periakatha Nadar 1. Makalingam and others (2), Firm Khushaldas Lekhraj v. Firm Jhamandas Maherchandani, Mathurapur Zemindary Co. Ltd. v.
Bhasaram Mandal and others and Jugal Kishore Saraf v. Messrs Raw Cotton Co. Ltd. (3). In this judgment of the Indian Supreme Court the view that the term "operation of law" in Order XXI, rule 16, C. P. C. Must receive a restrictive interpretation and is in general confined to cases of testamentary and intestate succession, forfeiture insolvency, and the like taken in the abovenoted cases was not approved. S. R. Das, J. In this respect observed :- "Transfers "by operation of law" are not intended to be confined to cases of death, devolution or succession. There is no warrant for confining transfers "by operation of law" to transfers by operation of statutory laws. When a Hindu or a Muhammadan dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property "by operation of law" all that is necessary is that there must be a passing of one person's rights in property to another person by the force of some law, statutory or otherwise. The equitable principle of assignment is as good as any rule of law.
Where the equitable principle of assignment applies, the transfer should be regarded as one by operation of law."
Now in the case in hand, the vesting of the ownership in the land, after passing of the pre-emption decree and withdrawal of the pre-emption money by the vendee, was conceded through a Court decree. The right to execute the decree was also conceded in writing through application Exh. R.
3. Again in the declaratory decree Exh. R. 2 what was declared was that rights accruing under the said decree vest in the decree-holder, Imam Bakhsh, the present petitioner. In the afore noted cases it was held
(1) AIR 1939 Born. 22,1 (2) AIR 1936 Mad. 543 1(3) AIR 1955 SC 376 that a decree declaring the title of the decree-holder to another decree previously passed in another suit does not affect a transfer of the earlier decree by operation of law and the decree- holder under the latter decree does not become the transferee of the earlier decree within the meaning of Order XXI, rule 16, C. P. C. The question to be seen, therefore, is whether on the basis of the decree dated 11-12-1967 and the application Exh. R. 3 Imam Bakhsh petitioner is entitled to seek possession by executing the pre-emption decree. The plea of the respondent in this respect is that a pre-emption decree is not transferable as held in the Lahore case of Lal Din v. Allah Din wherein it was observed that a pre-emption decree being a judicial recognition of the right of pre-emption which is a personal and non-transferable right is not capable of transfer and it is not open to a pre-emptor to transfer the pre-emption decree so as to enable the transferee to execute the pre- emption decree and to secure possession. In this respect judgment delivered in the case of Mehr Khan and another was also referred to. In this case Mehr Khan sold his rights in the decree to Shah Din and both of them presented a joint application for execution and deposited pre-emption money. During the execution proceedings Mehr Khan stated that as he had sold all his rights to Shah Din he wished possession under the decree be given to him. Learned Judges agreed with the principle enunciated in the case of Ram Sahai v. Gaya and others (1), that a decree for pre- emption is not capable of transfer so as to enable the transferee to obtain possession of the pre- emotional property in execution. It was further observed by the learned Judges that although the original application was joint this must be read with Mehr Khan's subsequent qualifying statement to the effect that he wished possession of the land to be given to Shah Din alone. In Ram Sahai's case the decree for pre-emption was granted on 30th June 1883 under the terms by which the purchase money was to be paid in Court within two months from the date of the decree becoming final. This decree was appealable to the High Court but before the expiry of the period of limitation prescribed by law for the appeal, High Court was closed on account of long vacation and did not reopen till 19th November 1883 when no appeal was preferred. On 29th November, 1883 the respondent executed a sale-deed conveying the property to which the decree dated 30th June 1883 related, to one Ambika Prasad. On the same day the respondent filed an application for the execution of decree and after reciting that they had sold the property included in the decree to Ambika Prasad prayed that the latter might be allowed to deposit the purchase money and that the decree holder might be placed in possession in order that they might make over possession of the property to- the new vendee. The Court below accepted the deposit and allowed execution of the decree in the manner prayed. On appeal the objection, that the deposit was not made within time allowed by the decree which must therefore be taken to have become incapable of execution, was raised. It was further contended that the action of the respondent in executing the sale-deed of 29th November, 1883 before having obtained possession under the decree invalidated their pre- emptive right rendering the decree incapable of enforcement. Mahmood,, J of the Allahabad High Court disallowed the first ground which related to deposit of the amount. While considering the second ground it was observed that no decree of Court passed in a suit for pre-emption can be so transferred as to invest the transferee with the right of obtaining possession of the pre-emotional property by executing
(1) I L R 7 All. 107 that decree. With regard to the facts of the case it was observed that in the case before them the pre-emptor's right of pre-emption had already been established by a decree which had become final before the sale-deed of 29th November, 1883 was executed and that sale-deed did not transfer the decree, but the property to the proprietary possession of which the pre-emptor, decree-holder was entitled subject only to the payment of purchase money within time. It was also observed that "all that the appellant-vendee was entitled to, was the right of receiving the purchase money before delivering the possession of pre-emptional property to the decree-holder ; that the decree-holder and not Ambika Prasad is the person who in the proceedings from which this appeal has arisen is seeking possession of the property and it is of no consequence that the purchase money was deposited by the latter on behalf of the former. For it is clear that the preemptor decree-holder and not Ambika Prasad, is the person to whom possession must be delivered in execution of decree, and that if Ambika Prasad has any valid rights under the sale- deed, he can enforce them by a separate suit". This Allahabad case was considered in a Lahore case of Jowala Sancti and others v. Ram Rakha (1) and was distinguished by observing that in the case of Jowala Sahai the decree-holder had not sold the property out and out, he had sold his costs and the right to execute his decree for possession of the house and had reserved for himself the right to redeem the house from mortgage. It was further observed that the case, therefore, differed from that of Sarju Prasad v. Janina Prasad an unreported judgment relied upon by Mahmood, J, in Ram Sahai's case in which proprietary right in the property appeared to have been transferred. The other observation made being pertinent may be reproduced :- "Even if such right had been transferred in the present case we see no reason why the transferee should not be entitled to execute the decree. Such transfer would have operated as fresh sale of the property and would have conferred a fresh cause of action upon pre-emptors. If the transfer in the present case had been one of sale the judgment-debtors, if they are pre-emptors as against the transferee, could not have resisted his right to present possession though they might have recovered the property from him by a suit for pre-emption. It may be that the transaction between the decree-holder and his transferee is one of sale of the property, though ostensibly it is not so, but it is clear that questions of this nature and questions as to preferential right of pre-emption cannot be gone into by a Court executing the decree. The decree-holder had a perfect right to sell his property subject to the right of pre-emptors to buy it, such rights must be asserted by separate suit and cannot be alleged as a bar to the transferee's claim to present possession."
' In addition to above it is important to note that the question whether a pre-emption decree could be legally transferred was not directly in issue before the learned Judges in the Allahabad case of Ram Sahai. In this case after obtaining a decree for pre-emption, the decree-holders sold the preemption property and then applied for leave to execute their decree for delivering possession to their vendee. Moreover, the objection that the pre-emption decree is not transferable was taken in the appeal filed against the pre-emption decree itself and the objection was upheld on the basis of the following principle :- "The sole object of the right of pre-emption is the exclusion of such
(1) 78 P R 1894 strangers as are objectionable to the pre-emptive co-sharers of the vendor. And if a decree for pre-emption were capable of transfer, so as to enable the transferee to obtain possession of the preemption property in execution of that decree, it is clear that the object of the right of pre- emption would be defeated, for the transferee of the decree may be as much a stranger as the vendee against whom the decree was obtained or that the latter may be a pre-emptor of a lower grade than the pre-emptor who originally obtained the decree. A decree once passed cannot, as we have already said, be questioned by any of the parties thereto when the decree is being executed and if a decree for pre-emption could be validly transferred, the effect would be to place the transferee in possession without the trial of the question whether such transferee had the pre- emptive right in preference to the vendee against whom the decree was obtained. Nor could the sale of a pre-emptive decree be regarded as giving rise to a fresh cause of action for a separate suit to enforce pre-emption, and it follows that, not only the rights of the vendee judgment-debtor, but also those of other co-sharers, might be injured by allowing the transferee of a preemptive decree to take out execution."
' The objection is thus based on the fundamental principle of the law of pre-emption, i,e, exclusion of such strangers as are objectionable to the pre-emptive co-sharers of the vendor. It is also obvious that no valid objection can be raised to the transfer of the property subject-matter of the decree. Even if during the pendency of a suit for pre-emption a plaintiff agrees to sell the land after obtaining the decree, the pre-emptor cannot be non-suited on this score alone. In Mahmud Bux v.
Hassan Bakhsh and others (1) it was held : "A man who has a right to pre-empt has merely to produce the money just as any other purchaser ; he can no more be asked what are you going to do with the land, or where did you raise the money, than any purchaser in a shop could be asked such questions by the shopkeeper. The pre- emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he has left to do is to produce the money within the time fixed by the Court. If in any such case the pre-emptor is buying the property for an outsider, and if after securing the property, he transfers it to the latter, it may be open to another pre-emptor challenge the second transfer and to claim pre-emption in respect thereof. This right is, in our opinion a sufficient safeguard against benami transactions of the kind."
' See also Lal Din v. Allah Ditta. In the instant case ownership of the land subject-matter of the pre- emption decree was transferred and vesting of the ownership in the land in question in the petitioner was conceded and confirmed through a declaratory decree. Such a transfer and vesting of property cannot be objected to on the basis of the judgments relied upon by the learned counsel for the respondent. The declaratory decree, Exh. R. 2 as observed above does not amount to transfer of decree within the meaning of Order XXI, rule 16, C. P. C. The petitioner, therefore, cannot rely on the provisions of Order XXI, rule 16, C. P. C. For seeking execution of the decree. He can, however, seek execution under
(1) 7 P R 1912 section 146, C. P. C. This provision was introduced for the first time in the Code of Civil Procedure in 1908 with the object of facilitating the exercise of rights in whom they come to vest by devolution or assignment. This section must receive beneficial interpretation and is to be read as supplementing the rules contained in the first Schedule of the Code of Civil Procedure. It is wide enough to entitle a person to continue a proceeding started by another or to institute proceedings or file application in place of the person under whom he claims. The effect of the declaratory decree obtained by the petitioner and the authority given to him under the application, Exh. R. 3 is that the petitioner must be conceded the right to execute the pre-emption decree. This will advance the interest of justice.
The authority conceded by Allah Dewaya decree-holder by executing application, Exh. R. 3 sufficiently empowers the petitioner to lodge execution proceedings and to obtain possession from the respondent who having received the pre-emption money (i,e, all that he was entitled under law to receive) is left with no right to object to the delivery of possession. It is pertinent to note that the respondent could not have successfully resisted the delivery of possession if the execution application had been filed on the basis of a power of attorney executed by Allah Dewaya pre- emptor. Can he, therefore, resist the execution application filed on the basis of the decree, Exh. R. 2 and written authority conferred vide application, Exh. D R.
3. The answer is in the negative. The petitioner having received all the rights in the land subject- matter of the decree and having been declared absolute owner of the said land is a person claiming under the decree-holder and steps into his shoes for all purposes. The rights so vesting in him were conceded by the legal heirs of the decree-holder even after the death of the decree- holder and the objections raised by the two legal heirs were also repelled by the Executing Court and these two legal heirs are no more contesting the rights vesting in the petitioner.
For all the reasons given above, I am of the considered view that the petitioner is entitled to receive possession of the land in question in execution of the pre-emption decree. The judgment dated 11- 3-1975 of the learned District Judge, Muzaffargarh is, therefore, set aside and the judgment rejecting the objection petition of the respondent passed by the learned Executing Court is hereby restored. The revision petition is accepted.
' The parties are, however, left to bear their own costs.