P L D 1953 Lahore 470 (PLP)

KAIKAUS, J.‑

Muhammad Ibrahim and Mst. Sakina Bibi defendants‑respondents got a decree for specific performance of a contract for sale of the property in dispute against Mst. Viro etc. , and got a sale‑deed executed in their favour by Court. Nur Ahmad and others plaintiffs‑appellants filed a suit for pre -emption on the ground that they were owners in the estate and patti in which the property in dispute was situate. The right of pre‑emption was not contested but it was pleaded that the sale being one in execution of a decree no suit for pre‑emption lay. Both the lower Courts have, following Muhammad Wazir v. Chaudhry Jahangiri Mal and others (P L D 1949 Lah. 1) dismissed the suit, on the ground that it is a sale in execution of an order of a Civil Court and, therefore, excluded from the definition of `sale' by section 3 (5) of the Punjab Pre‑emption Act. The only question in this second appeal is whether such a sale is pre‑emptible. It will be convenient to reproduce the relevant provision of the Pre‑emption Acts of 1905 and 1913: Pre‑emption Act, 1905. "Section 3 (5): 'sale' shall not include sales in execution of a decree or order of a Civil, Criminal or Revenue Court or of a Revenue Officer." Pre‑emption Act, 1913. "Section 3 (5): sale shall not include (a) a sale in execution of a decree for money or of an Order Criminal or Revenue Court or of a Revenue Officer". By the Act of 1905, sales 'in execution of a decree or order of a Civil, Criminal or Revenue Court or of a Revenue Officer' were excluded. In 1913, the words `for money' were added after `decree'. I will consider the effect of the introduction of these words later and would first discuss the interpretation of the provisions of 1905, for I have reached the conclusion that even section 3 (5) of the Act of 1905, did not apply to sale‑deeds executed by Courts on account of decrees for specific performance. My reasons for this conclusion briefly are:‑ (I) Section 3 (5) of the Act of 1905 was intended only to give effect to the broad and fundamental distinction that exists between sales by `act of parties' and `Court sale', a distinction which had been recognized and stressed in pre- partition India from the earliest times by Courts, without reference to any statutory definition of `sale'. The reasons advanced for excepting Court sales from the ambit of the pre‑emption right do not apply to sale deeds executed by Courts in respect of decrees for specific performance. (2) The words `sale in execution of a decree or order' do not in their ordinary connotation include such sales. (3) The law of pre‑emption would be nullified if the provi sions were so interpreted. I now proceed to amplify these reasons. The right of pre -emption was based in pre‑partition India on Muhammadan Law, Custom, Contract or Statute. But whatever the source of the right, Court sales were excluded from its operation. In Chikhoree Singh v. Hakeem Nujuf Ali (N. W. P. S. D. A Rep., 1854, p. 40) a case of 1854, the Sudder Dewanny Adawlut, Agra, held that Court sales were not subject to pre‑emption and thus stated the reason:‑ "the right of pre‑emption supposes an act of volition on the part of the vendor, a principle inapplicable to a transaction of compulsory sale made by any authoritative order or injunc tion, and that the incident of a public sale creates a new element beyond the ordinary scope of such right." This case followed in Mudar Buksh v. Muhammad Hassan (N. W. P. S. D: A. Rep., 1855, p. 597), where it was pointed out that ordinarily the right extended only to voluntary sales but that by special enactment the principle could be extended to Court sales. The same view was taken in three other decisions of that Court, Sah Koondun Lal v. Ram Bakhsh (N. W. P. S. D. A. Rep., 1860, p. 194), Seth Luchmee Chund v. Mst. Kesur Buhoo (N. W. P. S. D. A. Rep., 1865, p. 139) and Baboo Ram Narain Singh v. Syed Sadik Ally (N. W. P. S. D. A. Rep.. 1863. Vol. I. p. 325) the last mentioned being a Full Bench case. In Baij Nath v, Sital Singh (I L R 13 All. 224) Mahmood, J., while discussing the question whether compulsory sales were subject to a right of pre‑emption, observed:‑ "In dealing with this contention it is necessary to consider, in the first place, whether under the general law, as dis tinguished from specific legislative enactments, any right of pre‑emption arises in respect of compulsory sales, such as those which take place by public auction in execution of decrees or for arrears of Government revenues. I am of opinion that this question must be answered in the negative, whether the right of pre‑emption in respect of such sales is claimed under the Muhammadan Law, the compact of the wajib‑ul‑arz, or local usage and custom. Such sales are not the result of any private contract to which the person whose property is sold is a party. They are the result of an authority conferred by the legislature upon the Court for the purposes of awarding remedies against those who have failed to perform their pecuniary obligations. But for the specific interference of the legislature such a power to sell the property of the debtor against his will could not be exercised by the Courts or the revenue authorities, and it would appear from general principles that when, in so interfering, the Legislature has framed specific rules, statute law takes the place of general law, if any, in pari materia and excludes the application of the ordinary law of sale on account of the exigencies of procedure. The object of such sales is to secure satisfaction of debts by well defined means and methods calculated to achieve the object with certainty and expedition, and it seems clear that the object would be frustrated if such were hampered by the rules which govern private sales. The Legislature, however, in so interfering has not been heedless of the right of pre‑emption. Under the rules of procedure compulsory sales take place after a public proclamation, which, being an act of the Court or revenue authority, is taken to be sufficient notice to the pre‑emptors, along with the public at large, to come forward and purchase the property; and it seems rea sonable to suppose that those who do not appear to bid at the auction sale have no wish to purchase the property. These considerations seem sufficient to render the ordinary law of pre‑emption inapplicable to sales by public auction in execution of decrees, and this view has received judicial sanction," and again :‑-- "It may therefore be taken as a rule of law settled by a long and uniform course of decision that a compulsory sale, such as a sale in execution of decree or a sale under an authorita tive order of the revenue authorities for arrears of Government revenue, does not render pre‑emption enforceable, whether such right is claimed under Muhammadan Law, the terms of the wajib‑ul‑arz, or on the ground of local custom or private contract: but that such compulsory sales being the creation of statute‑law do furnish occasion for the exercise of the pre‑emptive right where such right is provided, subject to the rules and restrictions prescribed by those Legislative enactments themselves. Thus, for sales in execution of Civil Courts decrees, we have the provisions of section 310 of the Code of Civil Procedure (Act XVI of 1882) which lays down that "when the property sold in execution of a decree is a share of undivided immovable property, and two or more persons, of whom one is a co‑sharer, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be binding on the co‑sharer, "this provision being a reproduction, in a very amplified form, of the provisions of section 14 of Act XXIII of 1861, which was limited to sale of shares of a pattidari estate as defined in section 2 of Act I of 1841." In Ramnath and others v. Narayan (A I R 1932 Nag. 44) Niyogi A. J. C., had to interpret the word `sale' in section 205 of the Berar Land Revenue Code, which confers a right of pre‑emption. Section 205 runs as follows:‑ "When the interest or any part of the interest, of a co -occupant in any survey number is transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration, every other co -occupant in the same survey number shall have a right of pre‑emption." Although there was no provision excepting Court sales the learned A. J. C. held that sale was not included observ ing ‑ "Accordingly that right springs up where there is a privity of contract between the owner, who sells, and the purchaser. The seller is incompetent to enter into contract of sale with any one unless the party having the option to purchase has had the opportunity to exercise his option; if no such oppor tunity is given the purchaser is as much culpable of acting in derogation of the pre‑emptor's right as the seller. A judicial sale, however, takes place against the will of the owner and is, therefore, not the outcome of his volition. There is no privity of contract between the judgment‑debtor and the execution purchaser. The sheriff authorised by the writ simply seizes the property of the execution debtor and passes his debtor's title to it without even warranting that title to the good, Dorab Ally Khan v. The Executor of Khawaja Mohee-ud-din (I L R 3 Cal. 806). It is clear that unless the right of pre‑emption is expressly conferred by statute, the right cannot arise in respect of involuntary sales." In Sheobaran Singh v. Mst. Kalsum‑un‑Nisa and others (A I R 1927 P C 113), their Lordships of the Privy Council were discussing the ques tion whether sale by an Official Assignee was subject to pre -emption. It was argued before their Lordships that as a sale in execution was not pre‑emptible the sale by the Official Assignee should also be placed on the same footing. Their Lordships in repelling the argument gave the following reason why a sale in execution of decree is exempted:‑ "It was pointed out that a sale in execution of a decree transferred the property free from a claim of pre‑emption. The reason is simple. The Code of Civil Procedure arranging for sale under a decree mentions and deals with rights of pre- emption and gives those who hold them certain rights. Now whenever a statute deals with certain rights it is easy to conclude that it deals with the total ambit of those rights and leaves nothing standing outside the provisions of the statute." The grounds for exempting Court sales from the operation of the pre‑emptive rights as they appear from the above mentioned cases may be thus summarized:‑ (a) There is no act of party or contract to which alone the right can attach. The so‑called sale is really an exercise of the power that exists in a Court to seize the property of the judgment‑debtor and to transfer it to satisfy an order or decree. (b) There is an opportunity in such sales to bid at the auction'. (c) The object of such sales would be defeated if they are hampered by pre‑emption. (d) In such sales pre‑emption has been separately provided by statute and where not provided, the provision being by presumption exhaustive right‑of‑pre‑emption is negatived. When the grounds (a), (b), (c) and (d) mentioned above are considered it will be obvious that not one of them applies to a sale deed executed by Court on account of a decree for specific per formance. Although I have referred to all the various consi derations pointed out in the judgments, the true principle re cognised seems to be that the right of pre‑emption attaches only to sales by act of parties and not to those which take place by operation of law or the special authority of a Court as stated in ground (a) above. The question that arises is whether, when the Act of 1905 exempted sales in execution the intention was merely to give effect to this broad principle recog nized in these judgments or whether by a special provision even decrees for specific performance were being excluded from the exercise of the right of pre‑emption. There is no reason to think that there was any such special intention par ticularly when the result would be to practically destroy the right. On principle there does not seem to be any reason why such sale should be un-pre‑emptible. Though a sale deed is executed by a Court the sale still remains a sale by act of party. Sales by act of parties and sales by operation of law are different in their incidents. The Transfer of Property Act applies to sales by Act of parties only and the rights of parties to such sales are governed by the provisions of that Act. Could it be said that because the vendor has refused to execute a deed and the Court does it on his behalf the vendee loses the right he possesses in respect of the sale under the Transfer of Property Act. For instance, there is a covenant of title in every sale by contract. There is no warranty of title in an execution sale. Could it be said that the vendor can by mere refusal to execute a deed get rid of the covenant? In Sheobaran Singh v. Mst. Kalsum‑un‑Nisa and others (supra) their Lordships of the Privy Council had to consider whe ther a sale by Official Assignee was subject to pre‑emption. They pointed out that where right of private person vests in a public' authority, the public authority takes the right with all its dis advantages and burdens. They said, "In every system of law the, term may vary, but in all there is an official, be lie called an assignee or trustee or ally other name, and that official is by force of the statute invested, in I be bankrupt's property. But the property he takes is the property of the bankrupt exactly as it stood in his person, with all its advantages and all its burdens", and further on, "An illustration of this doctrine may be found in the case of Attorney‑General v. Dekeyser's Royal Hotel (1920 A C 508). As an illustration of how there is no privilege of person may be taken the case of the Collector of Fatteh pur v. Syed Yad Ali ((1869) I N P H G Rep., 88), where the Government as standing in right of a convict had to submit to the right of pre -emption. Just, therefore, as if the conveyance had been made to an individual, that individual would have had at once the dis advantages and the privilege of the custom of pre‑emption, so the Official Assignee was in the same position and could only sell what he got." Applying this principle if the Court makes a sale on behalf of a judgment‑debtor and performs the contract he has failed to perform the incidents of this performance should not be different. Order 21, rule 34, C. P. C. specially provides that the Court when executing a document shall state that it does so on behalf of the judgment‑debtor. When, on the other hand, it grants a sale certificate it does not do so on behalf of the judgment debtor but on account of special authority vested in it. It may also be mentioned that a sale deed executed by a Court requires registration as an ordinary sale deed but a certificate of sale does not require registration. The phrase `sale in execution of a decree or order' would not in its ordinary meaning have any reference to a decree for specific performance but would apply only to what is ordina rily understood by a Court sale. The same language was used in Agra Pre‑emption Act, section 6, which exempts sales in execution of decrees from the operation of the right of pre‑emp tion. In Sahu Lal Chand v. L. Ram Chandra and others (A I R 1929 All. 462), Sulaiman and Sen, JJ. had to consider the question whether a sale‑deed executed in respect of a decree for specific perform ance was a sale in execution within the meaning of section 6 or not. They observed: "The next question to consider is whether the case comes within the exception contained in section

6. If it can be called a sale in execution of a decree of a Civil Court then by virtue of that section no right of pre‑emption can arise in respect of it. Having considered the language of the section we have come to the conclusion that the exception does not apply to this case. The expression "sale in execu tion of a decree" is not identical with the execution of a sale‑deed by the Court in pursuance of a decree. There has really been no sale in execution but the execution of a sale‑deed, because the judgment‑debtor Raushan Lal declined to execute it. We, therefore, think that there is no prohibi tion against the accrual of the right of pre‑emption." In Tukaram Jagappa v. Ukarda and others (A I R 1924 Nag. 327) it was held with respect to a sale‑deed executed by the Court to respect of a decree for specific performance that it was not an involuntary sale. In Than Singh and others v. Lakhpat Singit and others (A I R 1948 All. 265 (F B)), the question having arisen as to what was included in a sale in execution of a decree, the learned Judges observed:‑ "The essence of a sale in the execution of a decree is that the will or volition of the judgment‑debtor does not enter into it. It is made in the exercise of statutory powers and its object is to satisfy a decree " They refused to accept that a sale deed executed under a decree for specific performance was a safe in execution saying, "The basis of a decree for specific performance in a contract, for sale is the contract of the parties and what the Court does is only to give effect to that contract." A reference to enactments exempting property from sales in execution will make the matter further clear. Section 16 (1) of the Punjab Alienation of Land Act provides:‑ "No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any Civil Court, whether made before or after the enforcement of this Act," In section 60 of the Code of Civil Procedure, there are a number of items of property exempted from sales in execution and similar exemptions are provided in the Madras Estates Land Act, section 192, U. P. Tenancy Act, section 60, C. P. Tenancy Act, section 49 and the Oudh Laws Act, section 20 etc. Could it be said that by section 16 of the Alienation of Land Act it was intended that if an agriculturist, (and now all residents of Punjab are agriculturist), entered into, a contract for sale otherwise valid, the contract will not be specifically enforced? Are all the items of property mentioned in section 60 of the Code of Civil Procedure incapable of being the subject of a binding contract for sale? To put such an interpretation upon these provisions would be to lay down that agreements to sale in respect of such property, though valid contracts arc incapable of being enforced. If such a far‑reaching change had been intended by these provisions it would have been made quite clear. A statutory right exists at present for specific performance of all contracts subject only to the conditions and limitation provided in the Specific Relief Act. The interpretation that a sale giving effect to a decree for specific performance was not liable to be pre‑empted would have nullified the law of pre‑emption. The vendor and the vendee had only to go to Court and get their agreement trans formed into a decree. An argument that a whole Act will be nullified by a particular interpretation is always an argument of weight and it has greater weight when the provision in question is easily capable of another interpretation. This I regard as the effect of the Act of 1905. The reason for the change in language in 1913 was the decision of the Punjab Chief Court in Yawah and others v. Tikaya Ram and others (40 P R 1911), which held that sales, like the one in dispute, were included in the category of "sales in execution of a decree." As Dhide, J. has pointed out in Imam Din ‑v. Feroze Din and others (A I R 1928 Lah. 504), in order to avoid this result the Act was amended ii, 1913 by the introduction of the words 'for money'. To me it appears that by the introduction of the words ‑for money' the intention was to limit the operation of the exemption to decrees for money and to exclude from its purview sales which take place in execution of decrees other than money. The learned Judges who decided Muhammad Wazir v. Chaudhry Jahangiri Mal and others (supra), held that sales like the one its dispute would be covered by the words `sale in execution of an order of a Civil Court'. This interpretation renders the introduction of the words `for money' wholly without effect and does not take note of the intention that there must be behind the amend ment i.e., the exclusion of sales in execution of decrees other than money from this subsection. The word `order' in this context cannot be held to include an order passed in the execution of a decree. If that were its meaning all reference to execution of decrees would be redundant for even in respect of a sale in execution of a decree there must always be an order for sale. In the phrase 'execution of a decree or order', the decrees and orders referred to are those which are foundation of the execution proceedings and not those intermediary orders that are passed during execution proceedings. When a sale is being ordered in execution of a decree we cannot (in this context) say that it is a sale in execution of an order. The intention obviously was not to include `sales in, execution of decrees' in 'sales in execution of orders'. Even if a `sale in execution of an order' were in its ordinary meaning to include `a sale in execution of a decree', in this context it should be understood in a sense excluding the latter expression on the well recognized principle stated in Maxwell (Ninth Edition, p. 330), "when two words or expressions are coupled together one of which generally includes the other, it is obvious that the more general term is used in a sense excluding the other." In the Act of 1905, according to Nawab and others v. Tikaya Ram and others (supra), this sale was included in `sales in execution of decrees,' and not in 'sales in execution of orders.' By the amendment it was excluded from sales in execution of decrees and I see no reason for holding that there was any intention to extend the scope of the sales in execution of orders' by the amendment of 1913. This sale, therefore, would not be included in either phrase. I have not yet referred to Punjab cases where it has been held that a sale effected by a decree for specific performance is subject to pre‑emption and is not covered by the exemption. They are Bhagta through Thakri v. Bir Singh and Bela Singh (61 I C 331); Rangi Ram and others v. Mehr Bakhsh and others (111 P R 1919); Ganda Ram and another v. Ram Chand and another (A I R 1924 Lah. 163) and Imam Din v. Feroze Din and others (supra). Of these only one, that is A I R 1924 Lah. 163, was quoted before the learned Judges who decided P L D 1949 Lah.

1. In view of all that is stated above I am constrained to hold, with the utmost respect for the learned Judges who decided P. L. D. 1949 Lah. 1 that a sale‑deed executed by a Court in compliance with a decree for specific performance would give rise to a right of pre‑emption. The only course open to this Bench would, under the circumstances, be to make a reference and I would accordingly direct that the records be forwarded to my Lord the Chief Justice for constituting a larger Bench for the decision of this appeal. KHURSHID ZAMAN, J.‑--I agree. Muhammad Shafi for Appellants. Muhammad Ali and Rafiq Ahmad for Respondents. ORDER MUHAMMAD MUNIR, C. J.‑--The referring Bench has not formulated the question but parties agree that the question to be answered is : "is a sale effected by a deed of sale, executed under Order 21, rule 34, sub‑rule(5) of the Code of Civil Procedure, by the Court in execution of a decree for specific performance of a contract of sale of immovable property, pre‑emptible under the Punjab Pre‑emption Act, 1913?" I agree with my brother Kaikaus who has examined every possible aspect of the question that a sale perfected by the Court signing a sale‑deed on behalf of the vendor under Order 21, rule 34 A (5) of the Code of Civil Procedure is a sale for the purposes of the Punjab Pre‑emption Act, 1913. Were the matter res integra. I should say, that on the principle expressio unius exclusio alterius a sale held in execution of a decree is, by reason of subsection (5) of section 3 of the Punjab Pre‑emption Act, a sale and therefore pre‑emptible unless the decree in execution of which the sale is held is a decree for money. This construction of the section is strengthened by the fact that in 1913 the Legislature chose to substitute the words "a sale in execution of a decree for money or of an" for the words "sales in execution of a decree or" in that subsection. It follows from this that sales which are not sales within the meaning of section 3 (5) are such sales as are held either in execution of a decree for money or in execution of an order of a Civil, Criminal or Revenue Court or of a Revenue. Officer if such order does not amount to a decree. Instances of such sales are sales held by a Criminal Court, under section 86, Criminal Procedure Code or by a Revenue Officer under section 75 of the Punjab Revenue Act. If, therefore an order in execution of which a sale is held amounts to a decree and the decree is not decree for money, it will be pre‑emptible like any other sale by the act of parties. The matter, however, is not res integra and, as has been shown in the exhaustive judgment of my brother Kaikaus, with the exception of this Court's decision in Muhammad Wazir v. Jahangiri Mal (P L D 1949 Lah. 1) by a Division Bench consisting of Sir Abdul Rashid, C. J. and Cornelius, J. there is no authority for the proposition that a sale effected in execution of a decree for specific performance is entirely different from a voluntary sale for the purposes of pre‑emption and that the sale‑deed executed by the Court under sub‑rule (5) of rule 34 of Order 21 amounts to a sale by the Court, The decision of the Punjab Chief Court in Nawab v. Tikaya Ram (111 P R 1919) was under the Act of 1905 and is not, therefore, relevant to the interpretation of the Act of 1913, by which the decree in execution of which the sale is held has been specified. As against the two cases mentioned above is a host of authority to the contrary, including the decision of the Punjab Chief Court in Rangi Ram v. Muhammad Bakhsh (111 P R 1919) and this Court's decisions in Genda Ram v. Ram Chand (A I R 1924 Lah. 163) and Imam Din v. Feroze Din (A I R 1928 Lah. 504). There are several decisions from other Courts in India holding that a sale‑deed executed in pursuance of a decree for specific performance of a contract of sale of immovable property is like other voluntary sales liable to pre‑emption and that in its essential characteristics it is entirely different from a sale held in execution of a decree for money or in execution of any order of a Civil, Criminal or Revenue Court. Thus the weight of authority is against the proposition that a sale completed in execution of a decree for the specific performance of a contract of sale of immovable property is not pre‑emptible. The principle underlying subsection (5) is definitely in favour of the view that such sales are pre‑emptible. A contrary construction would enable the parties by a simple and inexpensive device to render the whole Act nugatory and would be plainly inconsistent with the provisions of sub‑rule (5) of rule 341 of Order 21 which declares that the Judge of the Court will sign for the party and that the execution of the document will have the same effect as the execution of the document by the party. These provisions clearly tend to show that the signing of the sale‑deed by the Court stands on the same footing as the execu tion of a sale deed by the agent of a party, with only this differ ence that whereas in execution of private sales the agent executing the document is appointed by the party himself, inl signing the document under sub‑rule (5) the Court is given by law the power to sign for the party. But the sale in such a case is not by the Court but by the party though the deed is executed, in the sense of its being signed, by the Court, and the sale is not in execution of a decree. I would, therefore, answer the question in the affirmative. KAIKAUS, J.‑--Facts giving rise to this reference to a Full Bench are short. Muhammad Ibrahim and Mst. Sakina Bibi got a decree for the specific performance of a contract of sale of immovable property against Mst. Viro and others and on 25th of November 1948, the Court, which had passed the decree, acting under Order 21, rule 34, C. P. C., executed on behalf of the judgment‑debtors a sale‑deed in favour of the decree‑holders. On 11th of August 1949, Nur Muhammad and others filed a suit against Muhammad Ibrahim and Mst. Sakina Bibi to pre‑empt the sale effected by the above‑mentioned sale‑deed. The suit was resisted on the sole ground that the sale in question was not pre‑emptible. Following Muhammad Wazir v. Ch. Jahangiri Mal and others (P L D 1949 Lah. 1), the trial Court as well as the learned District heard the appeal dismissed the suit. A second appeal by the pre‑emptors came up for hearing before Khurshid Zaman, J, and me, and finding ourselves unable to agree with the above mentioned judgment, we referred the case to a Full Bench. The question which was framed by this Bench at the commencement of hearing is as follows:‑ "Is a sale effected by a deed of sale, executed by the Court under Order 21, rule 34, sub‑ rule (5) of the Code of Civil Procedure, in execution of a decree for specific performance of a contract of sale of immovable property. pre‑emptible under the Punjab Pre‑emption Act, 1913`."' The relevant provision of the Punjab Pre‑emption Act, 1913, which has to be construed is section 3 (5) which runs:‑ 113 (5) `sale' shall not include‑ (a) a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer." It will be convenient to quote here the corresponding provi sion in the Punjab. Pre‑emption Act of 1905, which was amended in 1913:‑ "3 (5) 'sale' shall not include sales in execution of a decree or order of a Civil, Criminal or Revenue Court or of a Revenue Officer." The learned Judges who decided Muhammad Wazir v. Chaudhry Jahangiri Mal and others (supra) were of opinion that although the sale in question would not be excluded under the first part of section 3 (5) for it was not a sale in execution of a decree for money, it was nonetheless a sale in execution of an `order' of Civil Court and, therefore, excluded from the definition of sale. They relied on Nawab and others v. Maya Ram and others (40 P R 1911) a case decided under the Pre‑emption Act of 1905, wherein it had been held that such a sale was one in execution of a decree, and held that though there was a difference in the wording of the two Acts, the conclusion reached in Nawab and others v. Tikaya Ram and others (supra) was still good law. Before considering the effect of section 3 (5) as it stands in the present Act, I will take up the question whether a sale like the present was pre‑emptible under the Act of 1905, for I am of opinion that Nawab and others v. Tikaya Ram and others (supra) was wrongly decided and that even under the Act of 1905, the present sale was subject to pre‑emption. Section 3 (5) of the Act of 1905, excludes from the operation of the law of pre‑emption sales in execution of decrees or orders. Is a sale effected by the execution of a sale‑deed under Order 21, rule 34, C. P: C. a `sale in execution of a decree or order?" There are references to sales in execution of decrees and orders in a large number of enactments and it will not at all be difficult to find out the ordinary sense of this phrase. Generally it will be obvious on a mere reading of any particular provision that it cannot include a sale like the one in question. To begin with the Code of Civil ‑Procedure, the enactment that deals with execution of decrees and orders, section 60 gives a list of property that is "liable to attachment and sale in execu tion of a decree'' and then gives a further list of property which is not liable to "such attachment and sale." It could hardly be argued that property which is not liable to such sale cannot be the subject of a decree for specific performance of a contract for sale. It may be observed that under section 36, C. P. C., all provisions relating to the execution of decrees relate to the execution of orders and, therefore, there is no necessity of any separate reference to orders. Sections 65 to 67, C. P. C., are preceded by the heading `sale'. Section 65 runs:‑‑ "Where immovable property is sold in exception of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the property becomes absolute." Section 68 runs:‑ "The Government may declare, by notification in the Official Gazette that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immovable property, shall be transferred to the Collector." Order 21 relates to execution of decrees. Rules 64 to 73 of Order 21 are under the heading "Sale generally" rules 74 to 81 under the heading "Sale of movable property" and rules 82 to 96 under the heading "Sale of immovable property". Every one of these rules contains a reference to a sale in execution of a decree and we have only to read the provisions to reach the conclusion that it cannot refer to sale like the one in dispute. I will, in order to illustrate my point, only refer to a few of these rules. Rule 65 reads:‑ "Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed." This rule would be sufficient by itself to prove that in the Code of Civil Procedure the expression sale in an execution of a decree (and by virtue of section 36 sales in execution of order too) has reference only to that sale by auction which is conducted by an officer of Court. Rule 89 (1) runs:‑ "Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court:‑ (a) for payment to the purchaser, a sum equal to five percent of the purchase‑money, and (b) for payment to the decree‑holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount, which may, since the date of such proclamation of sale, have been received by the decree‑holder." What appears from these rules would be apparent from almost every other rule which relates to sales. I will only mention rules 9i and 96 which provide that every purchaser at such sales would be a titled to delivery of possession. Coming the Limitation Act, Article 12 provides a period of one year for a suit to set aside "a sale in execution of a. decree of a Civil Court." The article is wholly inappropriate for any reference to a decree for specific performance. Article 166 is the corresponding provision for an application to set aside "a. sale execution of a decree". Article 180 provides a period of three years for an application for delivery of possession by the purchaser of immovable property at a sale in execution of decree. Coming to Provincial enactments, section 141 of the Punjab Land Revenue Act provides "orders issued by any Civil or Criminal Court for the attachment, sale or delivery of any land or interest in land, or for the attachment or sale of the produce of any land, shall be addressed to the Collector or such Revenue Officer as the Collector may appoint in this behalf, and be executed by the Collector or that officer in accordance with the provisions of the law applicable to the Court issuing the orders and with any rules consistent therewith made by the Financial Commissioner with the concurrence of the High Court' and the previous sanction of the Provincial Government. "When a Court orders the execution of a sale deed, the order does not amount to an order for the sale of land, otherwise, under section 141, it will have to be addressed to the Collector. There are a number of enactments, in force in the different. Provinces of pre‑Partition India, which exempt property from sale in execution of a decree or order of a Civil Court. Section 16 of the Punjab Alienation of, Land Act says:‑ "(1) No land belonging to a member of any agricultural tribe shall be sold in execution of any decree or order of any Civil Court, whether made before or after the enforcement of this Act." Section 18 of the Punjab Colonization of Government Lands Act makes a similar provision in respect of land held by Government tenants. Sections 55 and M of the Punjab Tenancy Act enact that rights of occupancy tenants cannot be sold in execution of a decree. Similar provisions will be found in

1. The Madras Estates Land Act, Section 192 (h).

2. The U. P. Tenancy Act, Schedule II, List 2, Section 60.

3. The C. P. Tenancy Act. Section 44.

4. The Oudh Laws Act, Section 20. and a number of other Acts. It could not possibly be argued that the effect of all these enactments is that a contract for sale of immovable, property cannot be the subject of a decree for specific performance or that sale‑deeds cannot be effected iii respect of them under Order XXI, rule 34, C. P. C. By a notification of the Punjab Government all persons now residing or holding land in the Punjab are members of agricultural tribes, and if "sale in execution of a decree" included the execution of a deed under Order XXI, rule 34, contract of sale of land could not be enforced in the Punjab. Mr. Mahmood Ali for the respondents, when his attention is drawn to the use of the expression "sale in execution of a decree or order" in the enactments referred to above, does not argue that the words as used in those enactments do include the sale in dispute but contends that we should not refer to other acts while interpreting an expression used in the Pre‑emption Act. His objection would have force if in the provisions to which we have referred the expression was being used in some special sense. None of the enactments above referred to contains any definition of the expression and we have to presume that words and phrases are used in their ordinary sense. The use of the expression in C. P. C., is important because that is the enactment which deals with execution of decrees and orders. Also the provisions in which this expression is used in the sense which I claim for it, are so large in number and there is such a total absence of the use of this expression in the sense attributed to it by Nawab and others v. Tikaya Ram and others (supra) that one cannot but regard the former as its ordinary meaning. X have made a thorough search but have not been'' able to find any enactment where this expression may have been used in the sense claimed for it by Mr. Mahmood Ali. A sale in execution of a decree" only means what we ordinarily understand; by an execution sale or Court sale, and these expressions we never understand as having reference to the execution of the decree under Order XXI, rule

34. I have not yet dealt with cases relating to pre‑emption. Authority is not altogether wanting with respect to the interpretstion of "sale in execution of a decree" when used in a law relating to pre‑emption. In Sahu Lal Chand v. L. Ram Chandra and others (A I R 1929 All. 462), Sulaiman and Sen, JJ., had to consider the very question which we have to answer. The provision of law applic able was section 6 of the Agra Pre‑emption Act under which a "sale in execution of a decree of a Civil Court" was not a sale within the meaning of that Act. Following is the reply they gave to the question:‑ "The next question to consider is whether the case comes within the exception contained in section

6. If it can be called a sale in execution of a decree of a Civil Court then by virtue of that section no right of pre‑emption can arise in respect of it. Having considered the language of the section we have come to the conclusion that the exception does not apply to this case. The expression `sale in execution of a decree' is not identical with the execution of a sale‑deed by the Court in pursuance of a decree. There has really been no sale in execution but the execution of a sale‑deed, because the judgment‑debtor Raushan Lal declined to execute it. We, therefore, think that there is no prohibition against the accrual of the right of pre‑emption." In Than Singh and others v. Lakhpat Singh and others (A I R 1948 All. 265 (F B)), the question as to what is the meaning of `sale in execution of a decree' as used in section 6 of the Agra Pre‑emption Act again came directly for decision. This is how the learned Judges defined the expression:‑ "The essence of a sale in the execution of a decree is that the will or volition of the judgment‑debtor does not enter into it. It is made in the exercise of statutory powers and its object is to satisfy a decree." The learned Judges refused to accept that a sale‑deed executed by a Court in pursuance of a decree for specific performance of a contract for sale was "a sale in execution of a decree" saying:‑‑ "The basis of a decree for specific performance of a contract for sale is the contract of the parties and what the Court does is only to give effect to that contract." In Gopi Nath Das v. Namai Charan Das and another (A I R 1951 Cal. 551), the learned Judges of the Calcutta High Court had, in a pre‑emption case arising under section 26‑F of the Bengal Tenancy Act, to consider whether a sale like the one in dispute was pre -emptible. It was contended before them on behalf of the vendee that it was a sale by Court and not by the co‑sharer. The learned Judges said:‑ "In the first place he contended that section 26‑F, Bengal Tenancy Act would not apply to this case at all because the conveyance here was conveyance by the Court and not by a co‑sharer. It is true that in this case the conveyance or deed of sale was executed by the Court merely because the defendants had refused to carry out a decree for specific performance. The Court executed the transfer not as owner of the property as, obviously the Court had no title at all. The Court merely executed this transfer as an agent as it were of the defendant and the transfer is in fact and in law a transfer by the defendant who was a co‑sharer. That being so there is no substance in this contention." (p. 552). It should be clear from the above discussion that the phrase 'sale in execution' has always been used in enactments in the sense of an independent sale a by the Court itself, in respect of which an order for sale is made by Court, the offer to purchase is made to the Court (though through its officers) and the acceptance is by the Court. It has no reference to the execution of a document, which gives effect only to an already existing private contract, and is in favour of a person who is, at least according to English Law and even according to what their Lordships of the Privy Council held in Futteh Chund Sahoo v. Leelumber Singh Doss and others (14 M I A 129); a case decided before the passing of the Transfer of Property Act, already an equitable owner of the property trans ferred. I have searched the law of pre‑Partition India for this purpose and the result of my enquiry is that (apart from any judgment dealing with section 3 (5) of the Punjab Pre‑emption Act, the expressions `sale in execution' and `sale in execution of a decree order have not, in any enactment, commentary, or judgment, been used in a sense including the execution of a sale‑deed under order XXI, rule 34, C. P. C. If we consider the reason behind the exception created in favour of sales in execution, we will reach the same result, namely, that sale deeds executed under Order XXI, rule 34, C. P. C., were not intended to be covered. The exception is due to the distinction that was being observed since the earliest times in pre‑Partition India in pre‑emption cases between sales by act of parties and sales by Court, even in the absence of arty provision excluding Court sales from the operation of the law of pre‑emption. As a result of this distinction, in deciding claim of pre‑emption, whether the claim was based on statute, custom, Muhammadan Law or contract, Court sales were held not subject to the right of pre‑emption although in the relevant provision there were no words excluding such sales, except in cases where such right had been specially created. In Chikoree Singh v. Hakeem Nujuf Ali (N W P S D A Rep. 1854, p. 40), the Sudder Dewanny Adawlat, Agra, excluded Courts sales from operation of law of pre‑emption, saying:‑ "The right of pre‑emption supposes an act of volition on the part of the vendor, a principle inapplicable to a transaction of compulsory sale made by any authoritative order or injunction, and that the incident of a public sale creates a new element beyond the ordinary scope of such right." Following the above mentioned case, it was held in Mudar Bakhsh v. Muhammad Hassan (N W P S D A Rep. 1855, p. 597) that it was only by a special enactment that the right of pre‑emption could be extended to Court sales. Three other decisions of the Sudder Dewanny Adawlat, namely, Sah Koondun Lal v: Ram Bakhsh (N W P S D A Rep. 1860, p. 194), Seth Luchmee Chund v. Mst. Kesur Buhoo (N W P S D A Rep. 1863, Vol. 1, p. 325) and Baboo Ram Narain Singh v. Syed Sadiq Ally (N W P S D A Rep. 1863, Vol. 1, p. 325) took the same view, the last mentioned being a Full Bench case. In Baij Nath v. Sital Singh (I L R 13 All. 224), Mahmood, J., while discussing the question whether compulsory sales were subject to a right of pre‑emption, observed:‑ "In dealing with this contention it is necessary to consider, in the first place, whether under the general law, as distinguished from specific legislative enactments, any right of pre‑emption arises to respect of compulsory sales, such as those which take place by public auction in execution of decrees or for arrears of Government Revenues. I am of opinion that this question must be answered in the negative, whether the right of pre‑emotion in respect of such sales is claimed under the Muhammadan Law, the compact of the wajib‑ul‑arz, or local usage and custom. Such sales are not the result of any private contract to which the persons whose property is sold is a party, They are the result of an authority conferred by the Legislature upon the Courts for the purposes of awarding remedies against those who have failed to perform their pecuniary obligations. But for the specific interference of the legislature such a power to sell the property of the debtor against his will could not be exercised by the Courts or the revenue authorities, and it would appear from general principles that when, in so interfering, the legisla ture has framed specific rules, statute‑law takes the place of general law, if any, in pari materia and excludes the application of the ordinary law of sale on account of the exigencies of proce dure. The object of such sales is to secure satisfaction of debts bb well defined means and methods calculated to achieve the object with certainty and expedition, and it seems clear that the object would be frustrated if such sales were hampered by the rules which govern private sales. The legislature, however, in so interfering has not been heedless of the right of pre‑emption under the rules of procedure compulsory sales take place after a public proclamation, which, being an act of the Court or revenue authority, is taken to be sufficient notice to the pre- emptors, along with the public at large, to come forward and purchase the property; and it seems reasonable to suppose that those who do not appear to bid at the auction sale have no wish to purchase the property. These considerations seem sufficient to render the ordinary law of pre‑emption inapplicable to sales by public auction in execution of decrees, and this view has received judicial sanction." and again:‑‑ "It may, therefore, be taken as a rule of law settled by a long and uniform course of decision that a compulsory sale, such as a sale in execution of a decree or a sale under an authoritative order of the revenue authorities for arrears of Government revenue does not render pre‑emption enforceable, whether such right is claimed under Muhammadan Law, the terms of the wajib‑ul‑arz, or on the ground of local custom or private contract but that such compulsory sales being the creation of statute‑law do furnish occasion for the exercise of the pre‑emptive right where such right is provided, subject to the rules and restrictions prescribed by those legislative enactments themselves. Thus, for sales in execution of Civil Court's decrees, we have the provisions of section 310 of the Code of Civil Procedure (Act XIV of 1882) which lays down that `when the property sold in execution of a decree is a share of undivided immovable property, and two or more persons, of whom one is a co‑sharer, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be binding on the co‑sharer,' this provision being a reproduction, in a very ampli fied form, of the provisions of section 14 of Act XXIII of 1861, which was limited to sale of shares of a pattidari estate as defined in section 2 of Act I of 1841." In Ramnath and others v. Narayan (A I R 1932 Nag. 44), Niyogi A. J. C. had to interpret the word sale' in section 205 of the Berar Land Revenue Code, which confers a right of pre‑emption. Section 205 runs as follows:‑ "When the interest or any part of the interest, of to co- occupant, in any survey number is transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration, every other co‑occupant in the same survey number shall have a right of pre‑emption." Although there was no provision excepting Court sales the learned A. J. C. held that such sale was not included observing:‑ "Accordingly that right springs up where there is a privity of contract between the owner, who sells, and the purchaser. The seller is incompetent to enter into contract of sale with any one unless the party having the option to purchase has had the opportunity to exercise his option; if no such opportunity is given the purchaser is as much culpable of acting in derogation of the pre‑emptor's rights as the seller. A judicial sale, however, takes place against the will of the owner and is, therefore, not the outcome of his volition. There is no privity of contract between the judgment‑debtor and the execution purchaser. The sheriff authorised by the writ simply seizes the property of the execution debtor and passes his debtor's title to it without even warranting that title to be good. Dorab Ally Khan v. The Executors of Khawaja Mohee-ud-din (I L R 3 Cal. 806). It is clear that unless the right of pre‑emption is expressly conferred by statute, the right cannot arise in respect of involuntary sales." Their Lordships of the Privy Council had, in Sheo‑Baran Singh v. Mst. Kalsum‑un‑Nisa and others (A I R 1927 P C 113), to consider why a Court sale is not pre‑emptible. The sale before their Lordships was one by the Official Assignee and the argument put forward was that the reasons which excluded a sale in execution from the operation of the law of pre‑emption would apply equally to a sale by the Official Assignee. Their Lordships rejected the argu ment and thus stated the reasons for exempting Court sales:‑ "It was pointed out that a sale in execution of a decree transferred the property free from a claim of pre‑emption. The reason is simple. The Code of Civil Procedure arranging for sale under a decree mentions and deals with rights of pre -emption and gives those who hold them certain rights. Now whenever a statute deals with certain rights it is easy to conclude that it deals with the total ambit of those rights and leaves nothing standing outside the provisions of the statute." The grounds for exempting Court sales from the operation of the pre‑emptive right as they appear from the above‑mentioned cases may be thus summarized:‑ (a) There is no act of party or contract to which alone the right can attach. The so‑called sale is really an exercise of the power that exists in a Court to seize the property of the judg ment‑debtor and to transfer it to satisfy an order or decree. (b) There is an opportunity in such sale to bid at the auction. (c) The object of such sales would be defeated if they are hampered by pre‑emption. (d) In such sales pre‑emption has been separately provided by statute and where not provided, the provision being by presumption exhaustive the right of pre‑emption is negative. When the grounds (a), (b), (c) and (d) mentioned above are considered it will be obvious that not one of them applies to a sale deed executed by Court on account of a decree for specific perfor mance. Although I have referred to all the various considerations pointed out in the judgments, the true principle recognised seems to be that the right of pre‑emption attaches only to sales by act of parties and not to those which take place by operation of law or the special authority of a Court as stated in ground (a) above. Mr. Mahmood Ali, who appears for the defendant‑res pondents, does not contest the basis of the distinction. He accepts that the reason for exempting sales in execution is the distinction between sales by act of parties and sales by Court. On the other hand, he has himself put forward an argument that it is such sales as are governed be the Transfer of Property Act as are liable to pre‑emption. He has referred us to the preamble of that Act which states that the Act applies only to sales by act of parties. He has referred us further to section 5 of that Act which defines transfer as "an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and `to transfer property' is to perform such act." He says a sale affected by means of a sale deed executed under Order XXI, rule 34 is not a sale by `act of parties' but that the passing of title must always be due to an order of Court. The Court, he says, is not a living person in the words of section

5. He also relies on Dhondiba Krishnaji Patel and another v. Ramchandra Bhagwat and others (I L R 5 Bom. 554), in which case it was held that in the mofassil of Bombay Presidency the practice was that after a decree for specific performance of a contract for sale had been passed no sale deed was in fact executed. He argues that the title must in those cases be held to pass by the decree itself. I have asked Mr. Mahmood Ali to cite a single case wherein it might have been held that the Transfer of Property Act does not apply to transactions of sale effected by a sale‑deed executed under Order XXI, rule 34, C. P. C., and he is unable to cite any. I have made a search myself and am unable to find any such case. The mere fact that after entering into a contract for sale, the vendor resiles from the contract and the Court does, on his behalf, what he ought have to done, cannot take the sale out of the category of sales by `act of parties'. The incidents of a sale p by act of parties and sales by Court are different. There is for instance no covenant for title in Court sales, while such a co venant is deemed incorporated in every contract of sale by virtue of section 55 of the Transfer of Property Act. Can the vendor by simply refusing to execute a sale deed deprive the vendee of the benefit of this covenant? Section 55 imports into every sale a number of other rights and liabilities. Could it be argued that all of them disappear when it is the Court which executes a sale deed' on behalf of the vendor? As observed in Than Singh and others v Lakhpat Singh and others already quoted "the basis of decree for specific performance of a contract for sale is the contract of the parties and what the Court does is only to give effect to that contract". I have also quoted already from Gopi Nath Das v. Namai Charan Das and another where the learned Judges had to deal with the question whether such a sale was an act of party or of Court. They said: `It is true that in this case the conveyance or deed of sale was executed by the Court merely because the defendants had refused to carry out a decree for specific performance. The Court executed the transfer not as owner of the property as obviously the Court had no title at all. The Court merely executed this transfer as an agent as it were of the defendant and the transfer is in fact and in law a transfer by the defendant who was a co‑sharer." Apart from all other considerations, Order XXI, rule 34 would itself be sufficient answer to the respondent's contention. Sub -rule (5) runs:‑ `The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:‑ "C. D., Judge of the Court of (as the case may be) for A. B., in a suit by E. F. against A. B.," and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same." The execution is to "have the same effect as execution of the document" by the party ordered to execute or endorse the same. If the act of the party was to give rise to a right of pre- emption, the act of Court on party's behalf will have the same effect. In the Privy Council case already cited, i.e., Sheobaran Singh v. Mst. Kalsum‑un‑Nisa and others (supra) their Lordships had to consider whether it would make any difference to the right of pre‑emption, if, instead of sale by the owner himself, there was a sale on his behalf by the Official Assignee, in whom the right of the owner vested for the time being. The following headnote will explain how their Lordships looked at the matter:‑ "(e) In every system of law the term may vary, but in all there is an official, be he called an Assignee or trustee or any other name, and that official is by force of the statute invested in the bankrupt's property. But the property he takes is the property of the bankrupt exactly as it stood in his person with all its advantages and all its burdens. Hence a sale of bankrupt's properly by Official Assignee is subject to right. of pre‑emption if any." The present case is much stronger for here even property does not vest in the Court and the only authority it possess is to execute on behalf of the judgment‑debtor a document which execution will have the same effect as if it were by the judgment -debtor. It is to be remembered that a sale deed executed by Court under Order XXI, rule 34, C. P. C., requires registration like an ordinary sale deed as will appear from sub‑rule (6), whereas certificates of sale issued by Court are exempt from registration. Also it requires sanction of the officer whose sanction is needed for a private sale though there is no provision for sanction in case of a sale by Court. This has been recognized in the very same judgment which is under discussion, i.e. Muhammad Wazir v. Ch. Jahangiri Mal and others (supra) and Hakim Enayat Ullah v. Khalil Ullah Khan and another (A I R 1938 All. 432) lays down the same proposi tion. It says:‑ "The sale deed executed by a Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment‑debtor and it is the title of the judgment‑debtor to tire property that is transferred by the sale deed executed by the Court. If the judgment‑debtor is precluded from trans ferring his property by some statutory provision, the Court cannot, in violation of that provision, execute a sale deed of the property." Suppose after the passing of a decree for specific performance the judgment‑debtor chooses to obey the decree and executes the document, will it still not be a sale by act of parties? If he does not obey the decree and the Court does on his behalf, what he ought to have done, will the incidents of the transaction change? Mr. Mahmood Ali has relied upon Dhondiba Krishnaji Patel and another v. Ramchandra Bhagvat and others (supra) for the proposi tion that in the case of a decree for specific performance of contract of sale the decree itself passes title and, therefore, the sale is not one by act of parties. In that case a decree for specific perfor mance of a contract for sale of movable as well as immovable property had been passed, The vendee brought a subsequent suit for possession of the properties without getting a sale deed executed in his favour by the Court but he applied for the execu tion of a sale deed on the same day on which he filed the suit and got a sale deed executed during the pendency of the suit. The only defence taken in that suit was that in respect of the movable property the claim was time barred as the right to get possession bad accrued on the day when the agreement for sale was entered into. The learned Judges‑who decided this case pointed out that so far from there being any question of limitation, the issue was whether the suit was premature for even the balance of purchase money had been paid only after the institution of the suit though it was tendered simultaneously with the presentation of the plaint. The learned Judge held that the proper course for a person in whose favour a decree for specific performance of a contract of sale had been passed was to get a sale deed executed but that in the mufassil of Bombay Presidency the practice had been to take no further action after payment of the purchase money in Court and that if they gave effect to the objection (that title passed only on execution of a sale deed) they would be upsetting thousands of titles. They said: "It has been hitherto extremely unusual for the vendor to be required to go through the form of executing a conveyance to the vendee, or for the Judge, as in the present case, to execute the conveyance for an absent, or recalcitrant vendor‑proper as the Act VIII of 1859, section 202, and Act X of 187", section 261 shows that course to be. Were we, however, to hold the actual conveyance under such circumstances to be indispensable, we should shake thousands of title heretofore considered un impeachable. Without any conveyance the vendee is deemed to be, under the decree and the payment or tender of the purchase‑money, full owner, and, as such entitled to possession, and maintain an action in the nature of ejectment against all persons bound by the "decree and obstructing his right to possession." The learned Judges were in fact only condoning a loose practice on equitable grounds. They regarded that as done what ought to have been done. If, however, the learned Judges really meant to say that title stood transferred by a mere decree, I would respectfully record dissent and agree with the directly contradictory proposition laid down by Iqbal Ahmad and Herries, JJ. In Hakim Enayat Ullah v. Khalil Ullah Khan and another (supra) where they say: "A decree for specific performance only declares the right the decree‑holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree‑holder has to proceed in execution in accordance with the provisions of Order XXI, C. P. C. So long as the sale‑deed is not executed in favour of the decree‑holder either, by the judgment‑debtor in the suit or by the Court, the title to the property remains vested in the judgment‑debtor and till the execution of the sale deed the decree‑holder has no right to the possession of the property. It is only the execution of the sale deed that transfers title to the property. The sale deed executed by Court in pursuance of a decree for specific performance is a transfer, by the Court on behalf of the judgment‑debtor and it is the title of the judgment‑debtor to the property that is transferred by the sale deed executed by the Court. If the judgment‑debtor is precluded from transferring his property by some statutory provision, the Court cannot, in violation of that provision, execute a sale deed of the property." Title can only pass by the force of some enactment or accepted principle of law. Mr. Mahmood Ali quotes neither. Assuming without conceding that Dhondiba Krishnaji Patel and another v. Ramchandra Bhagvat and others (supra) was correctly decided I do not see how it would help Mr. Mahmood Ali. If, as he says, title passed by the decree, how can it be said that there was a sale in execution of any decree or order? The most important argument, however, that sales of the kind in dispute were not included in "sales in execution of decrees and orders" mentioned in section 3 (5) of the Punjab Pre‑emption Act of 1905, is the liability of the Pre‑emption Act to be defeated if the contrary view is adopted. The vendor and the vendee have only to take the trouble of going to Court to get rid of the pre‑emptors. The argument that a whole Act will be nullified by a particular construction is an argument of such great force that even a straining of language is permissible to avoid that result. Here there is no need to strain the language. As I have shown above the ordinary sense of the expressions "sale in execution" does not include a sale deed executed under Order XXI. rule,

34. It is only if we construe the expression in a sense in which it has never yet been used is any enactment that we can defeat the Pre‑emption Act. I see no reason why we should adopt such a course. I am of opinion that Nawab and others v. Tikaya Ram and others (supra) was wrongly decided and, as observed in Imam Din v. Feroze Din and others (A I R 1928 Lah. 504), it was to avoid the application of the exception to decrease for specific performance that in the Pre- emption Act of 1913 the words `for money' were added after the word 'decree'. I turn now to the present Act. The obvious intention in adding the words "for money" after the word "decree" was to limit the operation of the exception to sales in execution of decrees for money and to leave sales in execution of other decrees unaffected (assuming that a sale in execution' can refer to a sale in execution of a decree other than money). Really what the legislature did in 1913 was intended to clarify that when it used the words "sale in execution of a decree" it only meant sale in execution of a decree for money but in any case it did limit the exception as indicated above. If, in spite of the amendment, we t are to hold that even sales in execution of decrees other than money are included because they are all sales in execution of orders, the amendment ceases to have any effect. It is obvious that the word 'order' in this subsection is used in a sense which excludes such orders as are made during the course of the execu tion of a decree. Legislature has divided sales in execution into two classes, those in execution of decrees and those in execution of orders. Sales in execution of decrees are not sales in execution of orders. Decree and order here refer to those basic mandates which are the foundations of the execution of proceedings. If the word `order' were to refer to any and every order passed in execu tion proceedings, any reference to `sale in execution of a decree' would be wholly redundant for even in cases of sales in execution of decrees there must be orders for sale. The word 'order' is not used in this subsection in a sense including the immediate order for sale, but is limited to that order which is the foundation of the execution proceedings. "Sales in execution of decrees' are not in this context included in "sales in execution of order". The two expressions are mutually exclusive. Assuming for a moment that in its ordinary sense "sales in execution of decree" is included in "sales in execution of order" in the present context it would be excluded on the well recognized principle stated in Maxwell on Interpretation of Statutes (Ninth Edition, p. 330), where two or more expressions are coupled together one of which generally includes the other it is obvious that the more general term is used in a sense excluding the other." The learned commentator regards it as `obvious'. I have already stated while dealing with the interpretation of the Act of 1905, that a very important argument against the interpretation adopted by Muhammad Wazir v. Chaudhry Jahan giri Mal and others (supra) is that such construction would nullify the Act. That argument applies with equal force to the present provision. There were three Punjab cases dealing with the question whether a sale like the one in dispute was excluded from the definition of sale or not, Rangi Ram and others v. Mehr Bakhsh and others (111 P R 1919) Genda Ram and another v. Ram Chand and money, full owner, and, as such entitled to possession, and to maintain an action in the nature of ejectment against all persons bound by the "decree and obstructing his right to possession." The learned Judges were in fact only condoning a loose practice on equitable grounds. They regarded that as done what ought to have been done. If, however, the learned Judges really meant to say that title stood transferred by a mere decree, I would respectfully record dissent and agree with the directly contradictory proposition laid down by Iqbal Ahmad and Herries, JJ. in Hakim Enayat Ullah v. Khalil Ullah Khan and another (supra) where they say:‑ "A decree for specific performance only declares the right of the decree‑holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree‑holder has to proceed in execution in accordance with the provisions of Order XXI, C. P. C. So long as the sale‑deed is not executed in favour of the decree‑holder either, by the judgment‑debtor in the suit or by the Court, the title to the property remains vested in the judgment‑debtor and till the execution of the sale deed the decree‑holder has no right to the possession of the property. It is only the execution of the sale deed that transfers title to the property. The sale deed executed by Court in pursuance of a decree for specific performance is a transfer, by the Court on behalf of the judgment‑debtor and it is the title of the judgment‑debtor to the property that is transferred by the sale deed executed by the Court. If the judgment‑debtor is precluded from transferring his property by some statutory provision, the Court cannot, in violation of that provision, execute a sale deed of the property." Title can only pass by the force of some enactment or accepted principle of law. Mr. Mahmood Ali quotes neither. Assuming without conceding that Dhondiba Krishnaji Patel and another v. Ramchandra Bhagvat and others (supra) was correctly decided I do not see how it would help Mr. Mahmood Ali. If, as he says, title passed by the decree, how can it be said that there was a sale in execution of any decree or order? The most important argument, however, that sales of the kind in dispute were not included in "sales in execution of decrees and orders" mentioned in section 3 (5) of the Punjab Pre‑emption Act of 1905, is the liability of the Pre‑emption Act to be defeated if the contrary view is adopted. The vendor and the vendee have only to take the trouble of going to Court to get rid of the pre‑emptors. The argument that a whole Act will be nullified by a particular construction is an argument of such great force that even a straining of language is permissible to avoid that result. Here there is no need to strain the language. As I have shown above the ordinary sense of the expressions "sale in execution" does not include a sale deed executed under Order XXI rule,

34. It is only if we construe the expression in a sense in which it has never yet been used in any enactment that we can defeat the Pre‑emption Act. I see no reason why we should adopt such a course. I am of opinion that Nawab and others v. Tikaya Ram and others (supra) was wrongly decided and, as observed in 1 main Din v. Feroze Din and others (A I R 1928 Lah. 504), it was to avoid the application of the exception to de‑crease for specific performance that in the Pre- emption Act of 1913 the words `for money' were added after the word `decree'. I turn now to the present Act. The obvious intention in adding the words "for money" after the word "decree" was to limit the operation of the exception to sales in execution of decrees for money and to leave sales in execution of other decrees unaffected (assuming that a sale in execution' can refer to a sale in execution of a decree other than money). Really what the legislature did in 1913 was intended to clarify that when it used the words "sale in execution of a decree" it only meant sale in execution of a decree for money but in any case it did limit the, exception as indicated above. If, in spite of the amendment, we are to hold that even sales in execution of decrees other than money are included because they are all sales in execution of orders, the amendment ceases to have any effect. It is obvious that the word `order' in this subsection is used in a sense which excludes such orders as are made during the course of the execu tion of a decree. Legislature has divided sales in execution into two classes, those in execution of decrees and those in execution of orders. Sales in execution of decrees are not sales in execution of orders. Decree and order here refer to those basic mandates which are the foundations of the execution of proceedings. If the word `order' were to refer to any and every order passed in execution proceedings, any reference to `sale in execution of a decree' would be wholly redundant for even in cases of sales in execution of decrees there must be orders for sale. The word `order' is not used in this subsection in a sense including the immediate order for sale, but is limited to that order which is the foundation of the execution proceedings. "Sales in execution of decrees' are not in this context included in "sales in execution of order". The two expressions are mutually exclusive. Assuming for a moment that in its ordinary sense "sales in execution of decree" is included in "sales in execution of order" in the present context it would be excluded on the well recognized principle stated in Maxwell on Interpretation of Statutes (Ninth Edition, p. 330), where two or more expressions are coupled together one of which generally includes the other it is obvious that the more general term is used in a sense excluding the other." The learned commentator regards it as `obvious'. I have already stated while dealing with the interpretation of the Act of 1905, that a very important argument against the interpretation adopted by Muhammad Wazir v. Chaudhry Jahan giri Mal and others (supra) is that such construction would nullify the Act, That argument applies with equal force to the present provision. There were three Punjab cases dealing with the question whether a sale like the one in dispute was excluded from the definition of sale or not, Rangi Ram and others v. Mehr Bakhsh and others (111 P R 1919) Genda Ram and another v. Ram Chand and another (A I R 1924 Lah. 163) and Imam Din v. Feroze Din and others (supra): In all these cases it had been held that a sale deed executed in pursu ance of a decree for specific performance of a contract of sale is pre‑emptible. Of these only one, that is Genda Ram and another v. Ram Chand and another (supra) was brought to the notice of the learned Judges who decided Muhammad Wazir v. Chaudhry Jahangiri Mal and others (supra). In Rangi Ram and others v. Mehr Baksh and others (supra) Shadi Lal and Le Rossignal, JJ. held that a sale in execution of a decree other than money was not within the exception. In Imam Din v. Feroze Din and others (supra) Bhide, J. considered the question in sufficient detail. The learned Judge pointed out that according to the interpretation put on section 3 (5) of the Act of 1905 in Nawab and others v. Tikaya Ram (supra) the right of pre‑emption could be easily defeated and it was to avoid this result that the legislature had inserted the words `for money' after the word `decree'. The learned Judge was of opinion that the object was to exclude from pre‑emption sales which were not voluntary but by the order of Court, implying clearly that sales like the one in question were voluntary sales. Apart from general considerations (as to the meaning of 'order' in this subsection) let us consider what is the order in the present case on which the defendant may rely as the order in execution of which a sale took place. There is no order produced by the defendant but Mr. Mahmood Ali refers us to various sub‑rules under which be says there must have been an order before the sale deed was executed. He refers to sub -rule (5) of rule 32 and sub‑rules (2), (3), (4) and (5) of rule

34. We may eliminate rule 32 (5), because a specific provision for the execution of a document is made in rule 34 and therefore the Court would not stand in need of invoking rule 32 (5). Sub‑rule (2) of rule 34 provides for service of the draft of the document on the judgment‑debtor. Sub‑rule (3) says the Court may hear objections to the draft and may approve or alter the draft. Under sub‑rule (4) the decree‑holder has to deliver to the Court a copy of the draft on proper stamp paper. Sub‑rule (5) gives the form in which the document is to be executed. It will be wholly inappropriate to say that the sale which comes into existence under Order XXI, rule 34 is a sale in execution of any order passed under any of the sub‑rules mentioned above. The only mandate in execution of which the Court takes the steps mentioned in the various sub‑rules is the decree itself. It should be remembered too that rule 34 is a general provision relating to the execution of any document and is not limited to the execution of sale deeds or deeds of transfer. Even the execution of a power of attorney is within the rule, vide Narah Alexandrina Margaret Moore v. Arthur Reginald Moore (A I R 1938 Oudh 48). I will sum up my conclusions as follows:‑ (1) From the earliest times a distinction was observed in pre‑emption cases between sales by act of parties and sales by Court, though in the relevant law, which was the foundation of the right of pre‑emption, no words excluding the latter class existed. (2) Out of the reasons on which this distinction was based none applied to a sale deed executed in pursuance of a decree for the specific performance of contract of sale which was in fact a sale by act of parties. (3) Section 3 (5) of the Act of 1905 was intended only to give effect to the above‑mentioned distinction. The phrase used, that is "sale in execution of a decree or order" does not in its ordinary sense include a sale deed executed under Order XXI, rule 34, C. P. C. The intention was not, and could not have been, to include such a sale for such inclusion would result in the right of pre‑emption being easily defeated. (4) Nawab and others v. Tikaya Ram and others (supra) was incorrectly decided. (5) In order to avoid the result of the interpretation put upon section 3 (5), the Act of 1913 added the words `for money' after `decree' in order to make it clear that out of sales with respect to which it may possibly be said (as was done in Nawab and others v. Tikaya Ram and others (supra) that they were sales in execution of decrees, only sales in execution of decrees for money were intended. `Sales in execution of decrees' and `sales in execution of orders' are in the subsection mutually exclusive. With all deference, I am unable to agree with Muhammad Wazir v. Chaudhry Jahangiri Mal and others (supra) and would answer the question in the affirmative. KHURSHID ZAMAN, J.‑--I agree and have nothing to add. MUHAMMAD MUNIR C. J., KHURSHID ZAMAN AND KAIKAUS, JJ.‑--Answer returned to the referring bench. A. H. Answer returned.