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Shanti Devi (Smt) And Another v. Hukum Chand .
Factual and Procedural Background
In 1980, Kishan Chand and Jagdish Chand sold the disputed land to Appellant 1. The respondent thereafter filed a suit for pre-emption, which was decreed on 27-8-1983. The appellants’ first appeal was dismissed on 30-11-1983, and their second appeal was dismissed by the High Court on 5-4-1984. In 1984 the respondent‐decree-holder initiated execution proceedings. The executing court accepted the appellants’ objection that, because only an undivided share had been conveyed, the pre-emption decree could not be executed. The respondent filed a civil revision before the High Court, which on 20-3-1990 set aside the executing court’s order and allowed execution. The present appeals were filed challenging that High Court order.
Legal Issues Presented
- Whether the pre-emption decree, which became final prior to the Supreme Court’s constitutional invalidation of provisions of the Punjab Pre-emption Act, 1913 in Atam Prakash v. State of Haryana (1986) 2 SCC 249, is a nullity and therefore inexecutable.
- Whether the substituted Section 15 of the Punjab Pre-emption Act (notified on 7-5-1995) prospectively abolishes the respondent’s right of pre-emption and affects the already final decree.
Arguments of the Parties
Appellants’ Arguments
- The 1986 Constitution Bench judgment in Atam Prakash declaring key provisions of the Punjab Pre-emption Act unconstitutional rendered the respondent’s pre-emption decree void and incapable of execution.
- The 1995 substitution of Section 15, confining the right of pre-emption to tenants, extinguishes any earlier right claimed by the respondent.
- Because only a share in joint land was sold, physical possession of specific khasra numbers cannot be delivered under the decree.
Respondent-Decree Holder’s Arguments
- The decree attained finality when the second appeal was dismissed in 1984; under Atam Prakash such final decrees remain binding inter partes.
- The substituted Section 15 operates prospectively and cannot affect decrees passed in 1983 and affirmed in 1984.
- The decree is for specific khasra numbers, and the Code of Civil Procedure permits delivery of possession, leaving any adjustment to partition proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Atam Prakash v. State of Haryana (1986) 2 SCC 249 | Declared relevant provisions of the Punjab Pre-emption Act, 1913 unconstitutional but preserved the binding force of decrees that had already become final. | The Court relied on the passage stating that final, unappealed decrees “will be binding inter partes,” holding that the respondent’s 1983 decree remains executable. |
Court's Reasoning and Analysis
The Supreme Court observed that by 5-4-1984 the pre-emption decree had been affirmed in second appeal and had attained finality, with no further challenge until a special leave petition was filed in 1996. Referring to the express carve-out in Atam Prakash, the Court emphasized that decrees which became final prior to that judgment remain unaffected by the declaration of unconstitutionality. Consequently, the decree between the present parties is binding and enforceable.
The Court further held that the 1995 amendment introducing substituted Section 15 is prospective; it neither retrospectively extinguishes rights crystallized by a final decree nor impairs its execution. Regarding the contention that only an undivided share was sold, the Court approved the High Court’s view that the decree relates to specific khasra numbers and that the Code of Civil Procedure provides mechanisms for delivering possession, with any necessary adjustments to be addressed in partition proceedings.
Holding and Implications
Appeals Dismissed.
The High Court’s order enabling execution of the pre-emption decree stands affirmed. The ruling reinforces the principle that final judgments retain their binding force notwithstanding subsequent constitutional invalidations of the underlying statute. No broader precedent is set beyond affirming the finality of decrees inter partes.
Order
1. These appeals have been filed for setting aside the order dated 20-3-1990 passed by the High Court allowing the civil revision application which had been filed on behalf of the respondent-decree-holder.
2. There is no dispute that the land in question was transferred in favour of Appellant 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 the only share in the land in question had been transferred the decree 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 number out of the joint land. The question of getting the physical possession of the specific khasra numbers 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 numbers 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 numbers though it may be open to the judgment-debtors to make adjustments at the time of partition, if any.”
3. 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 (10 of 1913) had been declared to be unconstitutional by the Constitution Bench of this Court in the case of Atam Prakash v. State of Haryana (1986) 2 SCC 249 the decree passed in the suit for pre-emption filed on behalf of the respondent shall be deemed to be a nullity and as such the decree cannot be executed. The High Court rejected the said objection. This Court in the case of Atam Prakash v. State of Haryana (1986) 2 SCC 249 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 a 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 partes 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 partes and the declaration made by the Supreme Court is of no avail to the parties thereto.
4. 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 an admitted position that at no stage the appellants questioned the validity of the decree in question before this Court. We are informed that after 12 years in the year 1996, a special leave petition has been filed against the 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 case (1986) 2 SCC 249 that such decrees shall be binding inter partes 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 (1986) 2 SCC 249 the decree in the suit for pre-emption filed on behalf of the respondent was binding between the parties.
5. On behalf of the appellants our attention was drawn to the substituted Section 15 in the Punjab Pre-emption Act, 1913 which has been notified on 7-5-1995 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.”
6. 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.
7. 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 (1986) 2 SCC 249 and we find no reason to take a contrary view. These appeals are accordingly dismissed. No costs.
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