# ZILA SlNGH & ORS v. HAZARI & ORS

- **Citation:** [1979] 3 S.C.R. 222
- **Court:** Supreme Court of India
- **Decided:** 1979-02-25
- **Case number:** Civil Appeal Nos. 1806-1808 of 1969
- **Bench:** P. N. Shinghal, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/zila-slngh-ors-v-hazari-ors-7784
- **Pages:** 10

## Headnote

Code of Civil Procedure 1908-S. 47, Or. XX r. !4(1)(b), Or. XXI r. I&
,
and S. 146-Whether purchaser -of land from a pre-emptor who has secured a
decree for pre-emption and possession, could execute the
decree
to obtain
posse&S1on of the iand.
•
The original vendor of the lands in dispute sold them to the first vendee~--
\
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In the meantime three decrees for pre-emption were passed in favour of the
pre-emptor and 0-gainst the vendor and his vendees. After
satisfying the
k"
conditions imposed in the decrees regarding deposit of certain sums of money
the pre-emptor sold the lands to the appellants.
In the execution petition filed by the appellants the original
vendor as
well as the first vendees filed their objections challenging the right of
thtt
appellants to execute the decrees on the ground that the right of pre-emption
being a personal right of the pre-emptor, the decrees could not be assigned
and thG:t the present appellants being subsequent vendees from the pre-emptor
were not entitled to execute the decrees granted in his favour.
Rejecting the objections of the first vendees the executine court held thal
the appellants were entitled to execute the decrees.
On appeal the Additional District Judge held that the pre-emptor having
complied with the directions contained in the decree his title to the lands was
perfected and that the appellants were entitled to recover possel!ion under
o.146, CPC.
In execution second appeals of the first vendees the High Court held that
the right of pre-emption being a personal right, the decree for pre-emption
would be a personal decree and was not assignable and even if the pre-emptor
had complied with the provisions of Or. XX r. 14 CPC, the appellants would
not be entitled to execute the decree for possession because the decree was
not assigned and s. 146 would not help the present appellaiits.
Allowing the appeals,
HELD : 1 (i) The question whether the right of pre-emption was a personal
right or it created an interest in property was concluded by the decision of
this Court between the same parties in an earlier round of litigation. The
earlier litigation being inter partes and, therefore, binding on the respondents,
it cannot be reopened or re-examined at the instance of the respondents. (226
H-227 B]
(ii) The contention that decree in a suit for pre-emption is a
personal
decree and creates no interest in land must fail.
[228 B]
(iii) The distinction between a voluntary inter vivos transfer
and
an
involuntary transfer such as by way of inheritance is immaterial as for as
the present case is concerned because the question in terms disposed of by
;
ZILA SINGH v. HAZARI (Desai,].)
223
•
this Court in the earlier case is that the pre-emptor having complied
with
A
0. XX, r. 14 bad become the owner of the lands and bis legal representatives
on bis death were rightly substituted in the proceedings. [227 H-228 Al
Hazari & Ors. v. Neki & Ors., [19681 2 SCR 833; referred to.
Section 146 CPC provides that where some proceedings could be taken
or application could be made by a person under the Code of Civil Procedure
any other person clniming under him is entitled to make and maintain such
an application. The only limitation on the exercise of this right is in tho
expression, 'save
as otherwise provided by this
O:>de,' occurring in the
•ection. [229 El
3. If the assignee of a decree can avail himself of the provisions contained
under Or. XX! R. 16 by establishing that he is such an assignee he must
only avail himself of thnt provision. But if he fails to establish his title as
a transferee by assignment in writing or by operation of law
within tho
meaning of Or. XXI r. 16, there is nothing in that proviGion which prohibits
him from availing himself of s. 146 if the provision of that section can be
availed of by him. [230 El
lugal Kishor< Saraf v. Raw Cotton Co. Ltd., [195'] SCR 1369; referred
to.
In the instant case though the sale deed in respect of land would show
that the decree itself was no

## Text

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222
ZILA SlNGH & ORS.
v.
HAZARI & ORS.
•
February 25, 1979
[P. N. SHINGHAL AND D. A. DESAI, JJ.]
Code of Civil Procedure 1908-S. 47, Or. XX r. !4(1)(b), Or. XXI r. I&
,
and S. 146-Whether purchaser -of land from a pre-emptor who has secured a
decree for pre-emption and possession, could execute the
decree
to obtain
posse&S1on of the iand.
•
The original vendor of the lands in dispute sold them to the first vendee~--
\
.-_,_
In the meantime three decrees for pre-emption were passed in favour of the
pre-emptor and 0-gainst the vendor and his vendees. After
satisfying the
k"
conditions imposed in the decrees regarding deposit of certain sums of money
the pre-emptor sold the lands to the appellants.
In the execution petition filed by the appellants the original
vendor as
well as the first vendees filed their objections challenging the right of
thtt
appellants to execute the decrees on the ground that the right of pre-emption
being a personal right of the pre-emptor, the decrees could not be assigned
and thG:t the present appellants being subsequent vendees from the pre-emptor
were not entitled to execute the decrees granted in his favour.
Rejecting the objections of the first vendees the executine court held thal
the appellants were entitled to execute the decrees.
On appeal the Additional District Judge held that the pre-emptor having
complied with the directions contained in the decree his title to the lands was
perfected and that the appellants were entitled to recover possel!ion under
o.146, CPC.
In execution second appeals of the first vendees the High Court held that
the right of pre-emption being a personal right, the decree for pre-emption
would be a personal decree and was not assignable and even if the pre-emptor
had complied with the provisions of Or. XX r. 14 CPC, the appellants would
not be entitled to execute the decree for possession because the decree was
not assigned and s. 146 would not help the present appellaiits.
Allowing the appeals,
HELD : 1 (i) The question whether the right of pre-emption was a personal
right or it created an interest in property was concluded by the decision of
this Court between the same parties in an earlier round of litigation. The
earlier litigation being inter partes and, therefore, binding on the respondents,
it cannot be reopened or re-examined at the instance of the respondents. (226
H-227 B]
(ii) The contention that decree in a suit for pre-emption is a
personal
decree and creates no interest in land must fail.
[228 B]
(iii) The distinction between a voluntary inter vivos transfer
and
an
involuntary transfer such as by way of inheritance is immaterial as for as
the present case is concerned because the question in terms disposed of by
;
ZILA SINGH v. HAZARI (Desai,].)
223
•
this Court in the earlier case is that the pre-emptor having complied
with
A
0. XX, r. 14 bad become the owner of the lands and bis legal representatives
on bis death were rightly substituted in the proceedings. [227 H-228 Al
Hazari & Ors. v. Neki & Ors., [19681 2 SCR 833; referred to.
Section 146 CPC provides that where some proceedings could be taken
or application could be made by a person under the Code of Civil Procedure
any other person clniming under him is entitled to make and maintain such
an application. The only limitation on the exercise of this right is in tho
expression, 'save
as otherwise provided by this
O:>de,' occurring in the
•ection. [229 El
3. If the assignee of a decree can avail himself of the provisions contained
under Or. XX! R. 16 by establishing that he is such an assignee he must
only avail himself of thnt provision. But if he fails to establish his title as
a transferee by assignment in writing or by operation of law
within tho
meaning of Or. XXI r. 16, there is nothing in that proviGion which prohibits
him from availing himself of s. 146 if the provision of that section can be
availed of by him. [230 El
lugal Kishor< Saraf v. Raw Cotton Co. Ltd., [195'] SCR 1369; referred
to.
In the instant case though the sale deed in respect of land would show
that the decree itself was not assigned, the lands having been sold by the
decree-holder after perfecting his title and purchased by the present appel-/
!ants, they would be person11 claiming under the original pre-emptor
decree-1
holder and if he could have made an application for execution of the decree
as decree-holder, the l\pplications for execution by the present appellants would
be maintainable under s. 146, and they are therefore entitled to execute tho
decrees for possession. [231 C..D]
Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi & Anr., [1958] SCR
1287; referred to.
• r ..
Civil APPELLATE JURISDICTION: Civil Appeal Nos. 1806-1808 of
1969.
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From the Judgment and Order dated 30-5-1969 of tho Punjab and
Haryana High Court in Executive Second Appeals Nos. 1131-1133 0£
1968.
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H. K. Puri and V. K. Bahl for the Appellant.
G
JaMrdhan Sharma and Jitendra Sharma for the Respondent
The Judgment of the Court was delivered by
DESAI, J.
These appeals by certificate under Article 133(1) (c) of
the Constitution granted by the High Court of Punjab & Haryana arise
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from three Execution Petitions filed by the present appellants for
executing three decrees obtained by one Neki (since deceased) in three
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
suits bearing Nos. 313, 360 and 369 of 1961 filed by him for preemption, to recove.r physical possession of the lands involved in the
suits.
The decrees in favour of Neki were confirmed finally by this
Court in Civil Appeals Nos. 1148, 1656 and 2341 of 1966 decided
on 25th J_anuary 1968.
The Judgment of this Court is reported in
Hazari & Ors. v. Neki & Ors.(') The facts which nltimately resulted
in decrees for pre-emption in favour of Neki are fully set out at pages
834-835 of the reported judgment and repeating the same would merely
add to the length of this judgment.
Suffice to state that there is no
dispute that decrees for pre-emption were passed in favour of Neki
against the original vendor Dhara Singh and his vendees Hazari and
others and the satisfaction of the condition in the decrees of pre-emption
for payment or deposit of the amounts as directed by the Court within
the stipulated time is not questioned in the present proceedings.
It appears that the trial court decreed the suits for pre-emption in
favour of Neki on 7th November 1962 simultaneously imposing the
condition fo deposit certain amounts in the three suits by or before 3rd
December 1962.
The various amounts we.re duly deposited in the three
decrees by Neki, the decree holder, on 3rd December 1962.
Sooh
thereafter, on 5th December 1962 Neki sold the lands in respect of
which he got the decrees to Zila Singh and others, the present appellants.
The present appellants are subsequent vendees but they will be
referred to as the appellants, in this judgment. The former vendeea
would be referred to as 'first vendees', the sale in whose favour gave
rise to the cause of actiou for pre-emption in favour of Neki against
the original vendor Dhara Singh.
After the sale in favour of the present appellants, they applied to
•
,
be joined as parties to the appeals preferred by the first vendees against
,
the decrees for pre-emption which we.re then pending in the High Court-~ ~
and the Court directed by its order dated 13th Jnly, 1963 that the
present appellants be joined as parties to the appeah; subject to just
legal exceptions.
The appellants then filed
Execution Applications
Nos. 295, 296, 297 /64 seeking to execute the decrees to reccwer actual
possession of the lands purchased by them from Neki.
Original Vendor
Dharn Singh and the first vendees filed their objections challenging the
right of the present vendees to execute the decrees.
Principal contention raised was that the sale deed of lands in favour of the appellants
did not envisage assignment of the decrees and that the right of preemption being a personal right, the decrees could not be assigned and,
therefore, the present appellants who were subsequent vendees from
pre-emptor Neki, were not entitled and had no locus standi to execute
(!) [1968] 2 S.C.R-833.
..
•
ZILA SINGH v. HAZARI (Desai, J.)
225
the decrees granted in favour of Neki.
The
executing court after
-examining the relevant provisions contained in section 4 7 and Order
XXI, Rule 16, of the Code of Civil Procedure rejected the objections
raised by the first vendees and held that the present appellants were
·entitled to execute the decrees and ditected warrant for possession to
be issued.
The first vendees preferred three appeals being Nos. 25/14,
26/14 aud 27 /14 of 1968 to the District Court at Rohtak.
The
learned Additional District Judge who heard these appeals, by a common order rejected the appeals and confirmed the order of the trial
1
I Court observing that the pre-emptor having deposited
the purchase
~-> iJrice as directed by the Court, in accordance with the terms of the
<lecrees, his title to the lands was perfected from the date of depopit
as provided in Order XX, Rule 14 (l)(b), C.P.C., the appellants as
purchasers of lands from the pre-emptor in whose favour the decrees
fat pre-emption including the one for possession had become final,
were entitled to recover possession under section 146 C.P.C.
Hazari, Amar Singh and Bhan Singh the first vendees preferred
three Execution Second Appeals Nos. 1131, 1132 and 1133/68 to the
High Court of Punjab & Haryana.
When these appeals came up
before a learned single Judge of the High Court it was contended that
in view of the decision in Ram Singh & Ors. v. Gainda Ram & Ors.( 1),
The assignee of a holder of a decree for pre-emption cannot seek the
assistance of the Court for executing the decree for pre-emption because
the decree is a personal one and, therefore, non-assignable.
On behalf
of the present appellants who were respondents before the High Court,
reliance was placed on the decision in Satyanarayana v. Arun Naik(')
and Ravi Parkash and Anr. v. Chunilal & Ors.(')
The learned single
Judge had certain reservations about the correctness of the decision in
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_.Ram Singh's case and, therefore, he considered it prudent to refer the
<- ,._..-
matter to a Division Bench.
The matter ultimately had to be referred
to a Full Bench because there was another decision in Mehrkha11 and
Shah Din v. Ghulam Rasul('), which also required reconsideration.
-·
That is how the matter came before a Full Bench.
The Full Bench ..formulated the question for its consideration· as
under:-
"Whether the purchaser of land from a pre-emptor,
of which the pre-emptor has become the owner in pursuance of a pre-emption decree after complying' with the
(1) AIR 1953 Punjab 163.
(2) AIR 1965 AP 81.
(3) AIR 1967 Punjab & Hariana 268.
(4) 2 Lahore 282.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
provisions of Order XX, Rule 14 Civil Procedure Code could
execute the decree in order to obtain possession of the land
purchased by him."
All the three Judges of the Full Bench wrote separate opinions.
D. K. Mahajan, J. was of the opinion that assuming that a decree
of pre-emption is a personal decree, the transferees of the land from
the pre-emptor whose title was perfected· by deposit as envisaged in
0. XX, Rule 14 (1) (b) were entitled to execute the decree granted
•
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by the Court in favour of the pre-emptor and can seek assistance of
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the Court for recovering actual possession from the first vendees who ~
had no right to continue in possession, apart from 0. XX, Rule 16
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under section 146 C.P.C. P. C. Pandit, J. and H. R. Sodhi, J., the
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other two members of the Full Bench were of the opinion that the
right of pre-emption being a personal right, a decree for pre-emption
will be a personal decree and is not assignable and even if title to
the land passed to the vendees who purchased the land from the preemptor after the pre-emptor complied with the provisions contained
in Order XX, Rule 14 yet tbey would not be entitled to execute the
decree for possession because decree is not assigned and section 146
would not help the present appellants. In
accordance with
this
majority opinion, the appeals preferred by the first vendees
were
allowed and
tbe applications for
execution filed by the
present
appellants were dismissed.
The High Conrt granted a certificate under Article 133 (1) ( c)
ef the Constitution because in its opinion tbe question involved in
the appeals was of considerable importance and was likely to arise
frequently and that it deserved to be decided finally by the Supreme
v
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eonrt.
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Mr. Janardan Sharma, learned counsel for tbe respondents urged
ijiat looking to the scheme of SS. 4, 6 and 15 of the Punjab Preemption Act, 1930, it is incontrovertible that foundation of the right
of pre-emption being close personal relationship, it is a
personal
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right and can be exercised only by the person in .whom it vests, under
the Jaw and if in exercise of such right snch a qualified person seeks
to pre-empt a sale by instituting an action in a Court of Jaw,
the
resultant decree would be a personal decree.
Urged Mr. Sharma
further that if" the decree is a personal one, obviously it cannot be
assigned and the assignee gets no interest in a decree so as to enable
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him to execute the decree.
The question whether the right of preemption conferred by the provisions of Punjab Pre-emption
Act,
1913, is a personal right or it creates an interest in the property is
. '11 _~
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ZILA SINGH v. HAZARI (Desai, J.)
227
no more res integra and is concluded by a decision of this
Court
between the very parties who are parties to the present appeals, in
an earlier round of litigation wher~in the first vendees, the present
respondents had challenged the right of Neki deceased pre-emptor to
obtain a decree for pre-emption. Apart from the fact that the point
is concluded by a decision of a Bench of three Judges of the Court,
it is inter-partes and, there.fore, binding on the respondents whom
Mr. Janardan Sharma represents and at the instance of the respondents it cannot be re-opened or re-examined. As the matter calls for
4
no examination at the hands of the Court it would suffice to quote
j,..__~what has b~en held in Hazari & Ors. v. Neki & Ors.(') Ramaswami,
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J. speaking for the Court, observed as under:
"1
"In support of these appeals, learned counsel put for-
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ward the argument that the right of pre-emption claimed by
Neki deceased plaintiff was a personal right which died with
him upon his death and the legal representatives of Neki
W0re not e'ntitled to be granted a decree for pre-emption.
The argument was that the statutory right of pre-emption
under the Punjab Act was not a heritable right and no
decree
for pre-emption should have been passed by the
lower court in favour of the legal representatives as re-
;:iresenting the estate of Neki.
We are unable to accept
the argument put forward by the appellants. It is not correct to say that the right of pre-emption is a personal right
on the part of the pre-emptor to get the re-transfer of the
property from the vendee who has already become
the
'.lWner of the same. It is true that the right of pre-emption
becomes enforceable only when there is a sale but the right
exists antecendently to the sale, the foundation of the right
Jeing the avoidance of the inconveniences and disturbances
which would arise from the introduction of a stranger into
the land.
The correct legal position is that the statutory
law of pre-emption imposes a limitation or disability upon
the ownership of a property to the extent that it restricts the
owner's right of sale and compels him to sell the property
to the person entitled to pre-emption under the statute.
In other words, the statutory right of pre-emption though
. not amounting to an interest in the land is a right which
attaches to the land and which can be enforced against a
purchaser by the person entitled to pre-empt."
Mr. Janardan Sharma,
however,
sought to
position under a voluntary inter vivas transfer and
(1) [1968] 2 S.C.R. 833-836.
distinguish
the
an involuntary
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SUPREME COURT REPORTS
(1979] 3 s.c.R.
transfor such as by way of inheritance and urged that in this case
Neki having sold the lands to the present appellants by sale inter vivas
they cannot enjoy the fruits of the decree.
This distinction is immaterial as far as the present case is concerned because the question in
terms disposed of by the Court is that Neki having complied with
Order XX, Rule 14, had become the owner of the lands and his
legal representatives on his death were rightly substituted in
the
proceedings.
The contention, therefore, that decree in a suit for
pre-emption is a personal decree and creates no interest in land, the
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subject matter of pre-emption, must accordingly fail.
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The next contention is that the deed evidencing the sale of lands
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Ext. D-1 dated 15th February, 1963 merely transferred the lands
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but does not purport to assign the decree, then in the absence
of
such an assignment the purported assignee cannot execute the decree
in view of the provision contained in Order XXI, Rule 16, and
therefore, the execution applications at the instance of the prese'nt
appellants are not maintainable.
The Additional District Judge did
not decide the contention whether the Execution Applications at the
instance of the present appellants, (namely, subsequent transferees
were maintainable under O. XXI, Rule 16, because in his opinion
the present appellants were entitled to execute the decree under section 146 of the Code of Civil Procedure.
The majority view of the
High Court is that the subsequent transferees, the present appellants,
were not entitled to execute the decree under 0. XXI, Rule
16
because the decree for pre-emption being a personal one cannot he
assigned and alternatively if it could be assigned, as a matter of fact.
it has not been assigned and therefore the applications for execution
at their instance are not maintainable.
They were further of
the
view that section 146 would not assist the appellants as provisions.
contained in 0. XXI, Rule 16 being a specific contrary provisions,
section 146 cannot be invoked.
Order XXI, Rule 16 permits an execution of a decree at the
instanoe of an assignee by transfer of a decree, the
assignment may
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be in writing or by operation of law and if such an application is
made, the court to which an application is made shall issue a notice
to the transferor of the decree and the judgment debtor and
the
decree cannot be executed until the Court heard their
obj•~ctions, if
any, to its execution.
Section 47 C.P.C. provides that all questions
arising between the parties to the suit in which the decree was pass-
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ed, or their representatives, relating to the execution, discharge or
satisfaction of the decree shall be determined by the court executing
the decree and not by a separate suit.
Explanation appended
to
ZILA SINGH v. HAZARI (Desai, J.)
229
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section 4 7 provides that for the purposes of that section amongst
others a purchaser at a sale in execution of the decree is deemed to
be a party to the suit. It would have been interesting to examine
the question whether the purchaser of land from a pre-emptor in
whose favour a decree for pre-emption has been passed and who subsequent to the decree complied with the
requirem~·nt of Order XX,
Rule 14 and thereby perfected his title would be, on the analogy of
a purchaser al a sale in execution of a decree, a party to the suit or
at any rate the representative of the decree-holder or a successor in
interest of the decree-holder, but as we are of the opinion that the
applications for execution filed by the present appellants are maintainable under section 146 C.P.C. the larger qnestion need not be
decided in these appeals.
•
Section 146 reads as under :
"Save as otherwise provided by this Code or by any
law for the time being in force, where any proceeding may
be taken or application made by or against any person,
then the proceeding may be taken or the application may
be made by or against any person claiming under him."
Shorn of unessentials the section provides that where some proceeding could be taken or application could be made by a person
under the Code of Civil Procedure any other person claiming under
him is entitled to make and maintain snch an application.
The limitation on the exercise of this right is to be
found in the expression,
'save as otherwise provided by this Code'. It would mean that if the
Code permits a proceeding to be taken or an application to be made
by a party, then in the absence of a provision to the contrary, sec-
.¥-tion 146 would enable any one claiming under such person as well
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to make the same application.
The object behind the section appears
to be to facilitate the exercise of right by a person claiming under
the person whose right to maintain an application is beyond dispute.
\
Section 146 came in for consideration in
Jugalkishore Saraf
v.
Raw Cotton Co. Ltd.(')
In that case the facts were that the plain-
. tiffs in a pending suit for recovery of debt transferred to another
·person all book and other debts due to them including the debt involved in the suit.
The transferees did 'not apply to be
joined as
parties in the pending suit and the suit continued in the name
of
the original plaintiffs and ended in a
decree.
Subsequently
the
(l) [1955] S.C.R. 1369.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
transferees as decree-holders applied for execution of the
decree
against the judgment-debtor and upon a notice being issued, a cont~ntion was raised that the application was not maintainable under
Order XXI, Rule 16.
One submission was that even if ihe application for execution was not maintainable under 0. XXI, Rule 16,
it would certainly l>~ maintainable at the instance of the transferees
of the original debt under section 146.
Accepting this contention
Das, J. observed that a person may conceivably become entitled to
the benefits of a decree without being a transferee of the decree by
assignment in writing or by operation of law.
In that ~ituation the
person so becoming the owner of the decree may well be regarded as
a person claiming under the decree-holder.
It was further held in.
that case that the transferees of the debt derived their title to
the
debt by transfer from the transferors and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transferors and accordingly they would be entitled to
make an application for execution under section 146 of the Code of
Civil Procedure.
Bhagwati, J. in a separate and concurring judgment on this point observed that the only meaning that can be assigned to the expression 'save as otherwise provided by this Code' in sec.
146 is that if a transferee of the decree can avail himself of the provision contained under Order XXI, Rule 16 by establishing that he
is such a transferee he must only avail himself of that provision. Bnt
if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of 0. XXI, Rule 16
there is nothing in that provision which prohibits him from availing
himself of section 146 if the provision of that section can be availed
of by him.
It would thus appear that if the
sale-deed in respect
of land on its proper construction would show that the decree itself
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was assigned obviously the application for execution would be main-·- -,{
tainable under 0. XXI, Rule 16. But if the appellants do not fall
·>
within the four corners of 0. XXI, Rule 16 and they appear not
to fall within the four corners of it, because though the land,
the
subject matter of the decree is sold to appellants, the decree itself
is not assigned, they would nonetheless be able to maintain application for execution under section 146 as persons claiming under the
decree-holder.
The respondents cannot have both the ways.
If the
deed evidenced transfer of de~ree by assignment then 0. XXI, Rule
16 weula be attracted but if, as it appears, there is no transfer of
decree by assignment, the lands having been sold by the decree-holder
after perfecting his title and purchased by the present appellants they
would be persons claiming under the original pre-emptor
decreeholder Neki and if Neki could have made an application for
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ZILA SINGH v. HAZARI (Desai, J.)
231
execution of the decree as decree-holder, the present appellants, as
A
purchasers of land from Neki would certainly be claiming under Neki
•
and, therefore, their application for execution would certainly
be
maintainable under section 146. In this connection it wonld
be
advantageous to refer to Smt. Saila BaU. Dassi v.
Smt.
Nirma/a
Sundari Dassi and Another(') wherein it has been in terms held that
section 146 was introduced for the first time in Civil Procedure Code
1908 with the object of facilitating the exercise of rights by persons
in whom they came to be vested by devolution or assignment and being a beneficent provision should be construed liberally so as
to
• _,l advance justice and not in a restricted or technical sense.
Viewed
_,
from this angle the present appellants must succeed because they pur-
.,,
chased land from pre-emptor Neki and the validity of sale being now
beyond dispute, they are persons claiming under Neki whose right
-·
#
to execute the decree was never disputed and, therefore, appellants
claiming under the vendor Neki would be able to maintain an application for execution under section 146 of the Code of Civil Procedure.
Appellants are thus entitled to execute the decree for possession.
Accordingly these three appeals are allowed and the decision of
the High Court dated 30th May, 1969 in Execution Appeals Nos.
1131, 1132 and 1133 of 1968 is set aside and the decision of the
Additional District Judge dated 15th July, 1968 is restored, but in
the circumstances of the case there would be no order as to costs.
N.V.K.
Appeals allowed.
(I) [1958] S.C.R. 1287.
B
c
D
E