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Umrao Singh Vs. Kanwal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All113
AppellantUmrao Singh
RespondentKanwal and ors.
Excerpt:
- - in the result we think that both the appeals are unsuccessful and we dismiss them with costs, including counsel's fees in this court on the higher scale......appeal holding that the appellant was the owner of the property and not respondent. against this decree appeal no. 741 of 1930 has been laid before us. against the execution matter an appeal has been filed by the plaintiff and it is execution second appeal no. 709 of 1930. both the cases have been heard together. the appellant's argument firstly was that the mere fact an appeal was filed to the i appellate court by the defendant ex-tended the period granted by the court of first instance on 2nd september 1919 for payment of pre-emption money. we find it extremely difficult to accept this proposition of law. it is true that a decree when under appeal is not final; but this does not mean that a pre-emptor is entitled to say that he can pay the money after the appellate court has passed.....
Judgment:

Mukerji, J.

1. This appeal is connected with Execution Second Appeal No. 709 of 1930. The appeals have arisen in the following circumstances: Umrao Singh, the appellant before us in both cases, filed a suit for preemption against the respondent Kehri, He set forth in the plaint that the true consideration of the sale-deed was Rs. 1,050 and that the ostensible sale consideration of Rs. 1,450 was wrong. The suit was resisted on various grounds, but it ultimately succeeded, and on 2nd September 1929 the learned Munsif decreed the claim for possession on condition of payment of Rs. 1,050 to defendants 5, namaly, Kehri, within two months of the date of the decree. The defendant was dissatisfied with the decree and went in appeal. The plaintiff on 26th October 1929 deposited in Court a sum of Rs. 145-7-0 and on 4th November 1929 asked for delivery of possession. The reason for depositing this small sum was this. The sale consideration is made up of three items, namely, Rs. 400 said to have been due to the vendee on account of a promissory note, Rs. 315 paid in cash before the Sub-Registrar and Rs. 735 left with the vendee for payment to certain creditors, namely, the plaintiff and his brother. The Court of first instance held that the money said to have been due to Kehri on foot of the promissory note was fictitious and deducting that amount decreed the plaintiff's suit on condition of payment of Rs. 1,050. The plaintiff found that he was entitled under the decree to a sum of Rs. 169-9-0 as costs. He deducted this amount and also the amount of Rs. 735 which had been left with the vendee for payment to the vendor's creditors, but which the vendee had not yet paid.

2. To the application for execution the vendee Kehri took an exception, and the plaintiff's application for delivery of possession was rejected by the first Court on 9th December 1929. On the application of the defendant the decree was amended and the amount of costs payable to the plaintiff was reduced from Rs. 169-9-0 to Rs. 149-9-0, that is to say by Rs. 20. This sum. of Rs. 20 has been deposited so far as we have been able to discover from the record. Against the order dismissing the plaintiff's application for delivery of possession the plaintiff went in appeal and his appeal was dismissed on 10th February 1930. The appeal of Kehri against the decree of the Munsif allowing the plaintiff's claim for pre-emption came up - for hearing before the lower appellate Court, and it was argued on be half of the appellant that there 'was no longer any subsisting decree in favour of the respondent, the plaintiff, and there fore there was no appeal to argue on behalf of the appellant. The learned Subordinate Judge, who heard the appeal, acceded to this argument, and accordingly dismissed the appeal holding that the appellant was the owner of the property and not respondent. Against this decree Appeal No. 741 of 1930 has been laid before us. Against the execution matter an appeal has been filed by the plaintiff and it is Execution Second Appeal No. 709 of 1930. Both the cases have been heard together. The appellant's argument firstly was that the mere fact an appeal was filed to the I appellate Court by the defendant ex-tended the period granted by the Court of first instance on 2nd September 1919 for payment of pre-emption money. We find it extremely difficult to accept this proposition of law. It is true that a decree when under appeal is not final; but this does not mean that a pre-emptor is entitled to say that he can pay the money after the appellate Court has passed an order in the appeal. On the other hand, the case of Jagarnath Pande v. Jokhu Tewari (1896) 18 All 223, is 'a direct authority against the appellant's contention; it was held there that the defendant's appeal did not operate as an extension of time in favour of the plaintiff. The next argument of the appellant was that under Order 41, Rule 33, Civil P.C., it was open to the lower appellate Court to extend the time in favour of the plaintiff-appellant. We do not think that that rule of law should be construed as the appellant wants. At the date when the appeal came up for hearing before the lower appellate Court there was no subsisting decree in favour of Umrao Singh. If the lower appellate Court, in spite of that fact proposed to extend the time for payment of the pre-emption money, the result would be that a decree which stood in favour of Kehri was being converted into a decree in favour of Umrao Singh. Even if such a power did exist in the lower appellate Court, it was will in its discretion whether or not to exercise that power and we are not prepared to say that that discretion has been exercised wrongly.

3. Now we turn to the facts of the case and to see whether the appellant Umrao Singh was justified or not in making the deduction. There can be no doubt that the plaintiff was entitled lo deduct the sum of money due to him for costs from the pre-emption money. This has been held in the case of Ishri v. Gopal Saran (1884) 6 All 851, a decision with which we agree. The fact that the amount of the costs awarded to the plaintiff was reduced by amendment of the decree would not have mattered much, because the deposit was made before the expiry of the time allowed by the Court and the decree was not corrected till the time had expired. If the matter had stood there alone, the plaintiff might have been allowed to pay the sum of Rs. 20 and should have an order for delivery of possession in his favour. As regards the deduction of Rs. 735 the plaintiff may be justified, but to allow him to say that he would deduct the sum of Rs. 735, because the vendee had not paid the sum, would be to allow the plaintiff to raise a new point in the execution department. As a matter of principle this cannot be allowed although the plaintiff has our sympathy. If we once allow the decree to be reopened in order to find out what is the money actually clue to the vendee, virtually we' shall be allowing either a review of judgment or an appeal against a decree. In either case greater complications may arise, and, the execution Court may be called on to decide complicated questions of fact in order to see what would be the proper amount to be paid to the vendee. Such questions must be raised and decided' in the suit and before the decree and not after the decree in the execution department. In the result we think that both the appeals are unsuccessful and we dismiss them with costs, including counsel's fees in this Court on the higher scale.


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