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2020 DIGILAW 332 (RAJ)

Vimal Kumar S/o Shri Rampal v. Shanti Devi w/o Sh. Gulab Chand

2020-02-05

PRAKASH GUPTA

body2020
ORDER : 1. This revision petition has been filed by the petitioner-judgment debtor against the order dated 20.10.2014 passed by Civil Judge, Tonk in Execution Case no. 7/2006, whereby the objections filed by the judgment debtor under Section 47/151 CPC have been dismissed. 2. Brief facts of the case are that Prahlad was the owner of the house in dispute. He sold it to the petitioner-judgment debtor Vimal Kumar vide registered sale deed dated 7.5.1974. Plaintiff Meri Lal filed a suit for pre-emption of the part of house sold to the petitioner-judgment debtor Vimal Kumar before the Munsiff & Judicial Magistrate, Tonk (hereinafter referred to as 'the Trial Court'). 3. The defendants filed the written statement. Issues were framed by the Trial Court. Evidence was led and after hearing the arguments, the Trial Court vide its judgment and decree dated 10.5.1976 decreed the plaintiff’s suit for pre-emption. Aggrieved thereby one of the defendant namely, Vimal Kumar filed a Civil Regular First Appeal. The same was dismissed by Civil Judge, Tonk, vide its judgment and decree dated 22.2.1984. Thereafter, the defendant Vimal Kumar filed S.B. Civil Second Appeal No. 79/1984 before this Court. During the pendency of the said appeal, plaintiff Meri Lal expired and his LRs were brought on record. The Coordinate Bench of this Court vide its judgment dated 2.1.2006 dismissed the second appeal and affirmed the judgment and decree passed by the Courts below. Special Leave to Appeal (Civil) No. 10052/2006 was filed by Vimal Kumar against the judgment dated 2.1.2006 passed by the Coordinate Bench of this Court, which was also dismissed by the Hon'ble Apex Court vide order dated 7.7.2006. 4. Thereafter, execution petition was filed. During the pendency thereof, the judgment debtor filed objections under Section 47/151 CPC with regard to executability of the decree on the ground that the decree was passed on the basis of a law which did not exist as the same was declared unconstitutional by the Division Bench of this Court. 5. The respondents-decree holders (hereinafter referred to as ‘the decree holders’ filed a reply to the said objections stating that the decree passed in favour of the plaintiff has become final between the parties and therefore, the judgment debtor has no right to raise objection with regard to executabiilty thereof. After hearing the arguments, the Executing Court, vide its order dated 20.10.2014 rejected the objections of the judgment debtor. After hearing the arguments, the Executing Court, vide its order dated 20.10.2014 rejected the objections of the judgment debtor. 6. Hence, the present revision petition has been filed. 7. Learned Sr. Counsel Mr. JP Goyal appearing with Mr. Abhi Goyal, counsel for the judgment debtor, submitted that the right of pre-emption on the ground of existence of common wall between properties belonging to the parties contained under Section 6(1)(iii) of the Pre-emption Act has been declared unconstitutional and has been struck down by the Division Bench of this Court in the case of Nen Mal & Ors. Versus Kan Mal & Ors. reported in 1987 (2) WLN 805. Therefore, the decree granted on the basis of such non existent law is a nullity, and hence inexecutable. However, the learned Executing Court has utterly failed to consider this aspect of the matter and on this count, the impugned order dated 20.10.2014 is liable to be quashed and setaside. In support his contentions, he has placed reliance on the following judgments: (i) Nen Mal & Ors. Versus Kan Mal & Ors. reported in 1987 (2) WLN 805 (DB) (ii) LR’s of Smt. Sire Kanwar Maloo Versus Shri Daudas Mantri reported in 2008 (1) RLW 781 (iii) Kiran Singh & Ors. Versus Chaman Paswan and others reported in AIR 1954 SC 340 (iv) Dhurandhar Prasad Singh Versus Jai Prakash University and Others reported in AIR 2001 Supreme Court 2552 (v) Gurnam Singh (D) thr. Lrs. & Ors. Versus Gurbachan Kaur (D) by LRs. & Ors. reported in 2017 (2) DNJ (SC) 415 (vi) M/s. Brakewel Automotive Components (India) Pvt. Ltd. versus P.R.Selvam Aalgappan reported in 2017(3) Civil Court Cases 045 (SC) (vii) A. Razzaque Sajansaheb Bagwan & Ors. Versus Ibrahim Haji Moohammed Husain reported in AIR 1999 SC 2043 (viii) Government of Andhra Pradesh & Ors. Versus B Satyanarayan Rao (D) by LRs. And & Ors. reported in AIR 2000 SC 1729 (ix) State Of Bihar vs Kalika Kuer @ Kalika Singh & Ors reported in AIR 2003 SC 2443 (x) Kunhayammed & Ors. Versus State of Kerala & Ors. reported in AIR 2000 SC 2587 (xi) Kumar Gonsusab & Ors. Versus Sri Mohammed Miyan Urf Baban & Ors. 2008 (2) WLC (SC) 737 8. Per Contra, learned counsel for the decree holders defended the impugned order and stated the same to be just and proper. Versus State of Kerala & Ors. reported in AIR 2000 SC 2587 (xi) Kumar Gonsusab & Ors. Versus Sri Mohammed Miyan Urf Baban & Ors. 2008 (2) WLC (SC) 737 8. Per Contra, learned counsel for the decree holders defended the impugned order and stated the same to be just and proper. He has submitted that in this case, impugned judgment and decree was passed on 10.5.1976. Against the said judgment and decree, Regular Civil First Appeal was filed, which was dismissed on 22.2.1984. Thereafter S.B. Civil Second Appeal No. 79/1984 was filed, which was also dismissed vide judgment dated 2.1.2006, against which Special Leave to Appeal (Civil) No. 10052/2006 was filed before the Hon’ble Apex Court, which too was dismissed vide order dated 7.7.2006. In this way, the judgment and decree passed by the Trial Court attained finality upto the Hon'ble Supreme Court with which no interference is required by this Court. 9. In support his contentions, he has placed reliance on the following judgments: (i) M/s. Kohinoor Transporters Versus State of Uttar Pradesh reported in 2018 (4) Civil Court Cases 667 (SC) (ii) Sneh Lata Goel Versus Pushplata & Ors. reported in 2019 (2) Civil Court Cases 096 (SC) (iii) Lekh Raj (Dead) through L.Rs. and Ors. V. Ranjit Singh and Ors. reported in AIR 2017 Supreme Court 4015 (iv) Brakewel Automotive Components (l) Pvt. Ltd. (M/s. Versus P.R. Selvam Alagappan reported in 2017 DNJ (SC) 462 (v) Ram Babu Rai Versus Nachari Mishra and others reported in AIR 2018 Patna 1 vi) Devaram Pargi Versus Amrit Lal reported in 2018 (1) WLC (Raj.) UC 125 (vii) Mohanlal Versus Shri Satdharma Sabha reported in 2019 (2) CJ (Civ.) (Raj.) 950 (viii) Yashodhara Ameta (Smt.) Versus Vishnu Shanker Paliwal & Ors. reported in 2011 (11) RRT 282 (ix) Ganga Bai and others Versus Subhash Chandra Mangal reported in 2014 (ll) MPWN 38 (x) Jamuna Prasad Versus Balkishan and others reported in 2014 (ll) MPWN 68 (xi) Rameshwar v. Bhagwan Singh and others reported in 2014 (ll) MPWN 33 10. Heard learned counsel for the parties and considered their rival submissions. 11. Before proceeding further in the matter, I would like to refer the law cited by the learned counsel for the petitioner. 12. In the case of Nen Mal & Ors. Versus Kan Mal & Ors. Heard learned counsel for the parties and considered their rival submissions. 11. Before proceeding further in the matter, I would like to refer the law cited by the learned counsel for the petitioner. 12. In the case of Nen Mal & Ors. Versus Kan Mal & Ors. (supra), the Division Bench of this Court held that clause (iii) of Sub section (1) of Section 6 of the Rajasthan Pre-emption Act 1966 is invalid being violative Art 19 (1) (f) and Article 14 and 15 of the Constitution of India. 13. Similarly, in the case of LRs of Smt. Sire Kanwar Maloo Versus Shri Daudas Mantri (supra), it has been held that the owner of the house feeling aggrieved by sale, more specifically because the common wall having partly owned by both the neighbours, can fit in the scheme of Section 6 (1) (iii) and thus, the same having been held unconstitutional, no right can be enforced by the neighbour. 14. So far as the judgment passed by the Hon’ble Apex Court in case of Kiran singh & other vs Chaman Paswan & others (supra) is concerned, in the aforesaid case, legality of the decree was questioned on the ground of defect of jurisdiction of the Court who passed it, which is not the situation in the present case. Hence the ratio in the case of Kiran Singh & others versus Chaman Paswan & and others (supra) does not apply to the facts of the instant case. 15. So far as the judgment passed by the Apex Court in the case of Dhurandhar Prasad Singh vs Jai Praksh University and others (supra) is concerned, it was related to objection raised under section 47. It pertained to inexecutability of the decree as the same was void ab initio and nullity on the ground that the College in question had became the constituent unit of Bihar University and the erstwhile Governing Body of the College ceased to exist. However, the same is not the situation in the present case for the reason that in the instant case, executability of the decree has been challenged on the ground of provision of law being declared unconstitutional. 16. So far as the judgment passed by the Hon’ble Apex Court in the case of Gurnam Singh (D) Thr. Lrs & Ors. Vesus Gurbachan Kaur (D) by Lrs. & Ors. 16. So far as the judgment passed by the Hon’ble Apex Court in the case of Gurnam Singh (D) Thr. Lrs & Ors. Vesus Gurbachan Kaur (D) by Lrs. & Ors. (supra) is concerned, it also does not hold the field for the reason that in the said case decree was passed by the Court against a dead person, which is not the situation in the instant case. 17. Similarly the judgment passed by the Hon’ble Apex Court in the case of M/s. Brakewel Automotive Components (India) Pvt. Ltd. Versus P.R. Selvam Aalgappan (supra) also does not apply to the instant case for the reason that in the said case decree was challenged on the ground that the same was void ab-initio and incapable of execution. However, in the instant case, validity of the decree has been challenged on the ground of provision of law being declared unconstitutional. 18. The judgment passed by the Hon’ble Apex Court in the case of A. Razzaque Sajansaheb Bagwan and others vs. Ibrahim Haji Mohammed Hussain (supra) also not does apply to this case for the reason that in the said case, the dispute was in between brothers and sisters in relation to the suit property, whereas in the instant case, the dispute is between a mortgagor and mortgagee and they are unrelated to each other and do not fall in any of the classes. 19. The judgment passed by the Hon’ble Apex Court in the case of Government of A.P. and Anr. Versus B. Satyanarayan Rao (dead) (supra) also does not apply to the facts of the case at hand as the former is related to recruitment to the post of Regional Transport Officer and applicability of the Rule of per incurium was in issue on the ground that court omitted to consider any statute while deciding that issue. Whereas in the instant case at the time of passing the impugned judgment and decree dated 10.5.1976, the provision of law was not declared unconstitutional and the same was declared unconstitutional subsequently in the year 1987. 20. Whereas in the instant case at the time of passing the impugned judgment and decree dated 10.5.1976, the provision of law was not declared unconstitutional and the same was declared unconstitutional subsequently in the year 1987. 20. Likewise, the judgment passed by the Hon’ble Apex Court in the case of State of Bihar Versus Kalika Kuer @ Kalika Singh and others (supra) does not hold field for the reason that in the said judgment it was held that even if a judgment is incorrect, it would be binding on the later Bench of coordinate jurisdiction, while in the instant case correctness of the judgment is not under challenge, but decree has been challenged on the ground of provision of law being declared unconstitutional. 21. The judgment passed by the Hon’ble Apex Court in the case of Kunhayammed and others Versus State of Kerala & Anr. (supra) also does not apply to the instant case for the reason that in the said case, applicability of merger was in question, but this is not the situation in the instant case. 22. In the case of Kumar Gonsusab & Ors. Versus Sri Mohammed Miyan Urf Baban & Ors. (supra) it was held that where Transfer of Property Act applies, Mohammedan Law or any other personal law for transfer of property cannot override the statute. Therefore, unless title to the suit property has passed in accordance with the Act, no right to enforce pre-emption arises. In view of our discussions made hereinabove, we are of the opinion that in light of the admitted fact that merely agreement to sell was entered into by the appellant No. 3 with the appellant Nos. 1 and 2 in respect of the suit property, the question of exercising any right of pre-emption by the respondents does not arise at all. A suit for pre- emption brought on the basis of such an agreement to sell must be held to be without any cause of action. We should not be unmindful of the fact that there are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. We should not be unmindful of the fact that there are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. It is well settled that it would be open to the pre- emptee to defeat the law of preemption by any legitimate means, which is not vitiated by fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means. 23. In the case of Karnail Kaur and others Vs. State of Punjab and others (supra) taking into consideration the ratio decided in the case of Shyam Sunder and Others vs Ram Kumar and another, reported in AIR 2001 SC 2472 , the Court held that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to Section 15 introduced by the amending Act. In K.S. Paripoornan vs State of Kerala, reported in 1995 SC 1012, Hon'ble Supreme Court has held that a statute which affects the substantive right is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment, whereas a statute which merely affects the procedure, unless such construction is textually impossible, is presumed to be retrospective in its application. 24. While adverting to the facts of this case, it is noticed the unconstitutionality of Section 6(1)(iii) of the Pre-emption Act being open to challenge in appeal, was prospective in nature. As such, unconstitutional provision could not have been applied to the judgment and decree which were passed much prior to the date of the judgment in the instant case. 25. It is well settled proposition of law that the executing Court cannot go behind the decree nor sit in appeal. I am of the considered view that the law which was in existence at the time of passing the decree would prevail and the subsequent declaration of law as unconstitutional would not render the decree inexecutable particularly when no objection in regard thereto was taken in the second appeal as also in the SLP filed before the Hon’ble Apex Court. I am of the considered view that the law which was in existence at the time of passing the decree would prevail and the subsequent declaration of law as unconstitutional would not render the decree inexecutable particularly when no objection in regard thereto was taken in the second appeal as also in the SLP filed before the Hon’ble Apex Court. In this regard, I find support from the judgment rendered by the Apex Court in Rangarao Versus Kamlakant reported in 1995 Supp (1) Supreme Court Cases 271, where in para 5 it was held: “5. On our careful consideration, we find that the appellant is entitled to succeed. It is undeniable that on the date when the compromise memo fruitioned into a decree on 3.1.1985, the Civil Court had every jurisdiction to pass such a decree. It is true the notification issued under clause 30 of C.P. and Berar Letting of Houses and Rent Control Order, 1949 came to be struck down as violative of Article 14 of the Constitution. This was on 19.6.1985. The decision rendered thereunder cannot have any effect of rendering the decree passed on 3.1.1985 a nullity which decree has become final. No judgment of any court can have any retrospective operation because that is the plenary power of Parliament (Legislature as well) (emphasis supplied by me). The Courts do not have such power. If that be so, the High Court had clearly gone wrong in holding that the decree on the date of execution is a nullity. As correctly contended by Mr. Sanghi, learned counsel for the appellant, the jurisdiction will have to be decided on the date of the decree namely, 3.1.1985. On that date undoubtedly it had every jurisdiction. Therefore, we hold that the High Court fell into an error in upsetting the concurrent findings of the courts below. Accordingly, we set aside the judgment of the High Court and allow the Civil Appeal” 26. In the case of Shanti Devi (Smt.) and Another Versus Hukum Chand reported in (1996) 5 Supreme Court Cases 768, it was held that decree would be binding and the declaration of unconstitutionality of the relevant provisions of the Act would not be available to the judgment – debtor. Relevant paras 4 and 6 of the said judgment are reproduced as under: "4. In the present case as mentioned above the suit for pre-emption was decreed on 27.8.1983. Relevant paras 4 and 6 of the said judgment are reproduced as under: "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 (emphasis supplied by me). As such the direction of this Court in Atam Prakash case 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 the decree in the suit for pre-emption filed on behalf of the respondent was binding between the parties. 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 preemption as early as in the year 1983 affirmed by the High Court in the second appeal in the year 1984." 27. In the case of Suresh Babu Versus Smt. S. Susheela Thimmegowda reported in ILR 1998 Kar 3885, in para 21 and 22, the Karnataka High Court held that: “21. In the case of Suresh Babu Versus Smt. S. Susheela Thimmegowda reported in ILR 1998 Kar 3885, in para 21 and 22, the Karnataka High Court held that: “21. The principle that emerges from these decisions of the Supreme Court is that even in regard to a decision which has become final, it is possible to set up its invalidity as a defence to enforcement thereof, on the ground that it is a nullity, (a) where there was a inherent lack of jurisdiction in the Court which entertained and passed the decree; or (b) where the decree was made by the Court, in violation of a specific bar contained in a Statute; or (c) where a subsequent Statute which is given retrospective effect nullifies such decrees or bars enforcement of such decrees. 22. On the other hand, if the Court had jurisdiction to entertain the action, as the law stood at the time of entertaining such action, and if the Court had jurisdiction to make the decree, as the law stood at the time of making the decree, a subsequent declaration by the Supreme Court that the Court did not have jurisdiction, will not render the decision already rendered, a nullity. Judgments and decisions which were valid, when they were made, will not become null and void, on account of any subsequent declaration of a different position of law by a Court. A judgment based on the law as it stood on the day the judgment was pronounced, will never be a nullity. Two hallmarks of an act which is nullity is, that it is invalid from the very inception and it can never become valid by any subsequent act or event. Therefore, a decision, which was valid when made, can never become null and void. It may become voidable on account of subsequent declaration of a different position of law by the Court, and can be set aside, if the matter is pending, or if it can be challenged in appeal or revision subject to law of limitation. Thus, a judgment which is given based on the law as it stood on that day, and which has become final, will not be affected, nor become a nullity, merely because the Supreme Court or this Court subsequently declares the legal position to be otherwise (emphasis supplied by me). Thus, a judgment which is given based on the law as it stood on that day, and which has become final, will not be affected, nor become a nullity, merely because the Supreme Court or this Court subsequently declares the legal position to be otherwise (emphasis supplied by me). The only circumstance which such a judgment or decision, which has become final, can be made ineffective or inoperative, is by a legislation with retrospective effect” 28. In my considered view, in the execution proceedings, the objection with regard to inexecutability of the decree cannot be raised, more so, when the impugned decree had attained finality upto the Hon’ble Supreme Court. 29. For the above reasons, I find no illegality in the order dated 20.10.2014 passed by the Civil Judge, Tonk and thus, I find no merit in this revision petition and it is hereby dismissed. There shall be no order as to costs. 30. However, the executing court is directed to decide the execution proceedings pending before it expeditiously.