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Ram Lagan Pande and anr. Vs. Muhammad Ishaq Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1919All45; (1920)ILR42All181; 54Ind.Cas.395
AppellantRam Lagan Pande and anr.
RespondentMuhammad Ishaq Khan and anr.
Excerpt:
.....in the decree and it is sought to make good this argument by referring to the fact that under the decree the plaintiffs were entitled as against the defendants to a sum of rs. , in accordance with other ruling of this court that in a case like the present where the pre-emptor plain tiff was entitled to costs he was entitled to deduct any portion of the purchase-money unpaid from the amount of costs owing to him. it seems to me, therefore, that on the authority of these cases it is not possible for me to hold in favour of the applicants here that there was a failure to comply with the term, of the decree, and that being so, it is not competent to me to interfere with the order of the court below, although it may be that the munsif was not, as a matter of law, entitled to extend the time..........payable by the defendants. what followed was this: 'within the prescribed period of one month the plaintiffs deposited a sum of rs. 99. why this sum was deposited is not altogether clear, but for the purpose of deciding this case it is not necessary to examine this question. later on it was noticed that the full amount of rs. 100 mentioned in the decree as the purchase money had not been deposited. on the 26th of august, 1918, the plaintiffs made an application to the court praying for extension of the time in order that the deficit of one rupee might be paid into court. the lower court thereupon passed an ex parte order extending the time. the court professed to act under section 151 of the code.2. this application has been filed here for the purpose of obtaining a revision of the.....
Judgment:

Lindsay, J.

1. It appears that the plaintiffs opposite party in this case brought a suit for pre-emption and on the 30th of May, 1918, got a decree. According to the decree the plaintiff's were liable to pay a sum of Rs. 100, and the decree provided that in default of payment within one month from the date of the decree the suit should stand dismissed. It is also apparent that the decree awarded a sum of Rs. 9 odd to the plaintiffs by way of costs payable by the defendants. What followed was this: 'Within the prescribed period of one month the plaintiffs deposited a sum of Rs. 99. Why this sum was deposited is not altogether clear, but for the purpose of deciding this case it is not necessary to examine this question. Later on it was noticed that the full amount of Rs. 100 mentioned in the decree as the purchase money had not been deposited. On the 26th of August, 1918, the plaintiffs made an application to the court praying for extension of the time in order that the deficit of one rupee might be paid into court. The lower court thereupon passed an ex parte order extending the time. The court professed to act under Section 151 of the Code.

2. This application has been filed here for the purpose of obtaining a revision of the lower court's order. A preliminary objection was raised to the hearing of this application on the ground that the order of the first court was appealable, but in view of the Full Bench decision in Suranjun Singh v. Ram Bahal Lal (1913) I.L.R. 35 All. 582, this argument cannot prevail. It was there held that an order such as has been passed by the court below in the present case was not appealable and could only be made the subject of revision. There is no bar, therefore, to the entertaining of this application.

3. The other question is whether the order of the court below can be disturbed in revision. It has, indeed, been held in various cases in this Court that in cases where a decree for pre-emption is passed in the terms laid down in Order XX, Rule 14, of the Code of Civil Procedure it is not open to the court to extend the time fixed for payment. That principle was laid down in Suranjan Singh v. Ram Bahal Lal (1913) I.L.R. 35 All. 582, and was affirmed by the Full Bench ruling to which I have already referred. It has however, been argued here that although the plaintiffs pre-emp-tors deposited only a sum of Rs. 99 within the period fixed there was nevertheless a full compliance with the direction contained in the decree and it is sought to make good this argument by referring to the fact that under the decree the plaintiffs were entitled as against the defendants to a sum of Rs. 9 odd by way of costs. The learned Counsel, for the opposite party, has referred me to several cases in support of this contention. One of these is mentioned in Bechai Singh v. Shami Nath (1910) 8 A.L.J. (Notes) at p. 27, It was a case decided by Mr. Justice Banerji on the 25th of April 1911. I have had the record of the case before me It is Bechai Singh v. Shami Nath Tewari S.A. No. 91 of 1911. It was there held by Banerji, J., in accordance with other ruling of this Court that in a case like the present where the pre-emptor plain tiff was entitled to costs he was entitled to deduct any portion of the purchase-money unpaid from the amount of costs owing to him. It follows, therefore, that this principle has been accepted and it must be held in the present case that the plaintiffs com-plied substantially with the terms contained in the decree I observe that this ruling of Mr. Justice Banerji was affirmed in Letters Patent Appeal on the 27th of July 1911. I have also been referred to another ruling of a Bench of this Court Ali Hussain v. Aminullah (1912) I.L.R. 34 All. 596. There it was, laid down that where a pre-emptor deposited in court the sum he was required to pay by the decree to the vendee less the costs awarded to him ho had completely complied with the order of the court In this ruling the decision of Mr. Justice Banerji, to which I have referred above, was quoted. It seems to me, therefore, that on the authority of these cases it is not possible for me to hold in favour of the applicants here that there was a failure to comply with the term, of the decree, and that being so, it is not competent to me to interfere with the order of the court below, although it may be that the Munsif was not, as a matter of law, entitled to extend the time and pass the order which he actually passed. If it appears that there was substantial compliance with the terms of the decree then the order ought to be allowed to stand, although it may be conceded to be wrong in form. The result is that I dismiss the application with costs to the opposite party.


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