Amrik Singh Minor through Smt. Guru Vs. Mangal Singh & Ors.
EmailAppeal: Civil Appeal No. 170 of 1976.
Petitioner: Amrik Singh Minor through Smt. Guru
Respondent: Mangal Singh & Ors.
Apeal: Civil Appeal No. 170 of 1976.
Judges: RANGANATH MISRA & MURARI MOHON DUTT,JJ.
Date of Judgment: Dec 11, 1987
Head Note:
PRACTICE & PROCEDURE
Punjab Pre-emption Act repealed in 1973 – Decree of pre-emption passed by the trial court reversed by the High Court in second appeal – In the repealing Act bar is against decrees passed after the Act became operative – A decree passed before the Act was not intended to be vacated or declared a nullity.
Cases Reffered:
1. Atam Prakash v State of Haryana & Ors., 1986 (2) SCC 249.
JUDGEMENT:
O R D E R
1. The plaintiff who had obtained decree for pre-emption is in appeal by special leave challenging the reversion of that decree in second appeal by the High Court.
2. There is no dispute that after the decree was passed defendants did not challenge the decree by filing an appeal in the first appellate court. Aggrieved by the direction regarding the quantum limited to a sum of Rs. 1,300/-, the plaintiff carried an appeal to the first appellate court. There was no cross objection by the defendant at that stage which would have expanded the ambit and scope of the appeal before the fist appellate court. The decree was thus accepted by the defendant. Defendant preferred a second appeal. It was contended that with the repeal of the Punjab Pre-emption Act in 1973, the decree of pre-emption became bad in law and could not be sustained. It may be stated that pre-emption in this case had been claimed on the basis of consangunity – plaintiff being the son of the alienor.
3. The sole contention which is raised in support of the appeal before us is that the decree of pre-emption passed on 19.11.1966 became final in the absence of challenge. Without a first appeal, there could not have been any challenge against the decree for pre-emption of the trial court in second appeal and the High Court had no jurisdiction to set aside the decree which had become final.
4. A Constitution Bench of this Court in ATAM PRAKASH VS. STATE OF HARYANAN & ORS. 1986(2) SCC 249, was dealing with the Punjab Pre-emption Act as applicable to the State of Haryana and the vires of the provisions of pre-emption as an issue. The Constitution Bench found some of the provisions of Section 15 to be ultra vires. In the concluding portion of the judgment it stated:
” 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 parties and the declaration granted by us will be of no avail to the parties thereto”.
In the repealing Act of 1973 there is a bar against passing of decrees of pre-emption after the Act became operative. Obviously, a decree which had already been passed before the Act was not intended to be vacated or declared a nullity. As we have said above, the decree of pre-emption of the trial Court had become final and the High Court went wrong in reversing it relying upon the provisions of the repealing Act. The appeal is allowed, judgment of the High Court is set aside and the decree of pre-emption passed by the trial court stands. In the peculiar facts of the case, parties are directed to bear their
own costs here.
Appeal allowed.
1. The plaintiff who had obtained decree for pre-emption is in appeal by special leave challenging the reversion of that decree in second appeal by the High Court.
2. There is no dispute that after the decree was passed defendants did not challenge the decree by filing an appeal in the first appellate court. Aggrieved by the direction regarding the quantum limited to a sum of Rs. 1,300/-, the plaintiff carried an appeal to the first appellate court. There was no cross objection by the defendant at that stage which would have expanded the ambit and scope of the appeal before the fist appellate court. The decree was thus accepted by the defendant. Defendant preferred a second appeal. It was contended that with the repeal of the Punjab Pre-emption Act in 1973, the decree of pre-emption became bad in law and could not be sustained. It may be stated that pre-emption in this case had been claimed on the basis of consangunity – plaintiff being the son of the alienor.
3. The sole contention which is raised in support of the appeal before us is that the decree of pre-emption passed on 19.11.1966 became final in the absence of challenge. Without a first appeal, there could not have been any challenge against the decree for pre-emption of the trial court in second appeal and the High Court had no jurisdiction to set aside the decree which had become final.
4. A Constitution Bench of this Court in ATAM PRAKASH VS. STATE OF HARYANAN & ORS. 1986(2) SCC 249, was dealing with the Punjab Pre-emption Act as applicable to the State of Haryana and the vires of the provisions of pre-emption as an issue. The Constitution Bench found some of the provisions of Section 15 to be ultra vires. In the concluding portion of the judgment it stated:
” 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 parties and the declaration granted by us will be of no avail to the parties thereto”.
In the repealing Act of 1973 there is a bar against passing of decrees of pre-emption after the Act became operative. Obviously, a decree which had already been passed before the Act was not intended to be vacated or declared a nullity. As we have said above, the decree of pre-emption of the trial Court had become final and the High Court went wrong in reversing it relying upon the provisions of the repealing Act. The appeal is allowed, judgment of the High Court is set aside and the decree of pre-emption passed by the trial court stands. In the peculiar facts of the case, parties are directed to bear their
own costs here.
Appeal allowed.
