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Guptar Tiwari Vs. Debi Saran Tiwari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All514
AppellantGuptar Tiwari
RespondentDebi Saran Tiwari
Excerpt:
case note: pre-emption - suit decreed--pre-emptive price enhanced on appeal by vendee, but no time fixed for payment--practice. - .....of the decree refused to order possession, holding that as the money was not paid within the time allowed by the court of first instance, the applicant was not entitled to execution. it was an absolute impossibility for the pre-emptor to pay the sum of rs. 801, at the time allowed by the court of first instance, because it was not until the 12th of april, 1912, that any court had directed that he should pay this sum, and the time allowed by the first court expired on the 4th of april, 1912. the matter, therefore, stands thus. the court has not limited any time within which the rs. 801 should be paid. the pre-emptor certainly paid it within a reasonable time after he was ordered to pay it. under the circumstances of the case we think material justice requires that the plaintiff.....
Judgment:

Richards, C.J. and Tudball, J.

1. This is an execution case arising out of a pre-emption suit. The real facts seem to have been that the court of first instance decreed the plaintiff's suit subject to his making a payment of Rs. 999, Rs. 24 out of which should be paid to the vendee. The Munsif's decree was not strictly in accordance with the judgment. We are, however, not concerned with that now. He subsequently amended it. Whether he had power to do so, we need not decide. The vendee appealed, complaining that the consideration allowed ought to be more than that decreed by the court of first instance. Mr. Rose by his judgment directed that he (the pre-emptor) should deposit the further sum of Rs. 825, including the Rs. 24, directed by the first court. This was really in addition to the money payable to the prior mortgagee. No time was mentioned when this Rs. 801 should be paid. The decree which was made was a simple dismissal of the appeal, obviously not in accordance with the judgment and drawn up in a grossly careless way. The pre-emptor in a month and one day after the decree paid the Rs. 801, into court, and then claimed possession of the property. The court to whom application was made for execution of the decree refused to order possession, holding that as the money was not paid within the time allowed by the court of first instance, the applicant was not entitled to execution. It was an absolute impossibility for the pre-emptor to pay the sum of Rs. 801, at the time allowed by the court of first instance, because it was not until the 12th of April, 1912, that any court had directed that he should pay this sum, and the time allowed by the first court expired on the 4th of April, 1912. The matter, therefore, stands thus. The court has not limited any time within which the Rs. 801 should be paid. The pre-emptor certainly paid it within a reasonable time after he was ordered to pay it. Under the circumstances of the case we think material justice requires that the plaintiff should be entitled to execute his decree. We accordingly set aside the decrees of both the courts below, and order that the application should be restored to its original number on the file of the first court and determined according to law, having regard to what we have said above. The appellant will have his costs.


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