1. This is an appeal consequent upon the certificate of fitness granted by a Single Judge of the High Court of Madhya Bharat on an application under Section 23 of the Madhya Bharat High Court of Judicature Act. The appeal could be heard by a Division Bench and has been placed for disposal before us as the case stood undisposed of till that High Court was abolished.
2. The question which was raised before the learned Judge was whether, when a decree for pre-emption is passed by the Trial Court fixing a certain period from the date of the decree for payment of pre-emption money and no payment is made within the period so fixed, and when in an appeal from that decree no order staying execution of the decree is passed and the decree is affirmed without any order fixing a fresh period for payment, the period for payment should be calculated from the date of the original Court's decree or from the date of the Appellate Court's decree.
3. The learned Judge on consideration of the wordings of Section 21 of Gwalior Pre-emption. Act held that the period for payment could not be computed from the date of the decree of the Appellate Court which confirmed the decree of the Trial Court but from the date of the decree of the Trial Court itself. It was further held that the time initially fixed by the order of the Trial Court could not be enlarged. He also held that the same result would follow on general principles applicable to such cases and conflicting decisions of some of the Indian High Courts were noted in this connection.
4. The view taken by the Single Judge of the Madhya Bharat High Court referred to above is assailed in this appeal.
5. It is necessary to state the facts giving rise to this special appeal.
6. 9n 30-6-1944 plaintiff obtained decree for pre-emption in Civil Suit No. 99 of Samvat Year 1999 in the Court of District Sub-Judge Morena. The decree was signed on 7-7-1944. Under the terms of the decree it was provided that in case the plaintiff pays Rs. 3000/- in Court within six months from the date of the decree he will be entitled to pre-emption. In case he does not make the payment within that period his suit should be taken to be dismissed.
7. There were terms regarding costs with which we are not concerned.
8. The plaintiff decree-holder did not deposit the amount of Rs. 3000/- as directed by the original Court. He however preferred appeal against that decree.
9. The Appellate Court by its order dated 10-10-1945 remanded the case after framing fresh issues.
10. A petition for revision was filed against that order in the High Court of Gwalior and the High Court on 24-9-1948 set aside that order and directed the Lower Appellate Court to dispose of the appeal finally on merits. The appeal was consequently heard by the first Appellate Court on merits and the decree of the trial Court was upheld. The appeal was consequently dismissed on 29-1-1951.
11. A second appeal was filed against this decision to the High Court. This too was dismissed on 25-9-1953. During the pendency of the appeals and revision no order had been issued by the High Court or the District Court staying the execution of the decree of the trial Court. There was no direction in the decree passed by the first or second Appellate Court fixing fresh period for payment. On 24-2-1951 the plaintiff decree-holder deposited the pre-emption money in Court with costs payable by him and applied for possession of the property: The judgment-debtor raised objection to the executability of the decree on the ground that the suit stood dismissed as the plaintiff decree-holder did not make the deposit of pre-emption price in accordance with the terms of the decree and within six months from the date of the decree.
12. The objection was overruled by the Civil Judge Jaura who was called upon to execute the decree. According to his view payment made on 24-2-1951 was proper as it was within six months from the date of decision in appeal which was 29-1-1951.
13. He therefore directed the execution to proceed. Judgment-debtor preferred appeal against this order to the District Judge, Morena. The latter agreed with the view of the Lower Court and dismissed the appeal. In second appeal filed against that decision Dixit J., held that the payment made on 24-2-1951 being more than six months from the date of trial Court's decree dated 30-6-1944 (7-7-1944) could not help the decree-holder and his suit consequently should be taken to have been dismissed. Execution petition was held consequently to be incompetent.
14. In this appeal under Section 23 of the Madhya Bharat High Court Act this view of the learned Judge is assailed.
15. This is evidently a case to which Gwalior Law of Pre-emption Samvat Year 1992 applies.
16. Section 21 (1) of that Act makes a provision whereby the Court passing a decree for pre-emption is required to fix a date for payment which ought not to be less than one month and more than three months for payment of the pre-emption money in Court. There is a further provision where the Appellate Court passes an order staying execution. In such a case the original Court is empowered to fix a date for payment after the order for stay of execution is vacated. Under Section 21 (2) of the Act it is provided that the decree ought to provide that in case the required payment is not made in accordance with the requirements of Sub-section 1 of Section 21 the plaintiff's suit would be dismissed with costs and in case the requisite payment is made as required the plaintiff would be entitled to obtain possession and the Judgment-debtor in that case would without loss of time execute a deed of sale and have it registered.
17. There is some difference between this provision and the one contained in Section 517 of the Gwalior Civil Procedure Code which is similar in terms to Order 20 Rule 14 C. P. C. However as Section 21 is contained in the Special Statute which is a consolidating statute and which was passed subsequent to the enactment of Section 517 Gwalior Civil Procedure Code the same ought to prevail. However in this case it appears that in framing the decree the period for payment is fixed in accordance with Section 517, Gwalior Civil Procedure Code and not in accordance with Section 21 of the Gwalior Pre-emption Act.
18. Leaving aside this question regarding the period of payment allowed to the plaintiff-decree-holder in the decree of the original Court what we have to consider is the effect of appeal against the original decree. The Section makes a specific provision. It is only when an order is passed by the Appellate Court staying execution that a power is conferred upon the original Court to fix the date for payment afresh on the same principle. Thus in the absence of an order for stay of execution the original Court is powerless to extend time. The Appellate Court, who no doubt is empowered to hear the appeal, even on failure of the plaintiff to make payment according to the terms of the decree and within the time limited thereby has not fixed any further period. Under these circumstances the question which remains to be considered is whether on general principles of law as obtaining in such case there is automatic extension of fine by reason of the filing of an appeal or in other words whether the date for payment fixed by the Trial Court is automatically altered so that the period initially allowed from the decree of the original Court ought, on appeal being filed, be computed from the date of the Appellate Court's decree. The indications in Section 21 of the Gwalior Law of Preemption are against such extension. For had that been contemplated there was no point in making a specific provision only in those cases where an order for stay of execution is passed by the Appellate Court.
19. In my opinion therefore on terms of Section 21 of the Gwalior Law of Pre-emption the period for payment provided for in the decree of the Trial Court ought to be computed from the date of the decree of that Court and not from the date of decree ultimately passed in appeal on 29-1-1951. This in my opinion is sufficient to dispose of the appeal being without force.
20. But even if the matter were considered on principles apart from the terms of Section 21 of the Act aforesaid still in my opinion the same result ought to follow.
21. In Naguba Appa v. Namdev AIR 1954 S. C. 50 (A), their Lordships had to consider similar question in view of provisions of Order 20 Rule 14 C. P. C.
22. In that case a decree for pre-emption was passed in favour of the plaintiff and he was ordered to deposit the sale-price within 2 months from the date of the decree. An appeal was taken by the plaintiff against this decree but was later withdrawn. The plaintiff however failed to deposit the pre-emption money according to the decree of the Trial Court. He later applied for being allowed to deposit the amount. This was allowed ex parte. The defendant later coming to know of this objected to this deposit and contended that the plaintiff's suit stood dismissed on his failure to deposit the price as directed by the original Court. The trial Judge upheld the defendant's contention. This view was ultimately accepted by the High Court to be correct. On appeal to the Supreme Court it was contended that the decision of the High Court was wrong inasmuch as an appeal having been preferred from the Trial Court's decree in the pre-emption suit, the pre-emptor was justified in not depositing the amount within the time fixed by the decree.
23. The contention was negatived by their Lordships' who held:
'This argument cannot be sustained. Mere filing of an appeal does not suspend the decree of the Trial Judge and unless that decree is altered in any manner by the Court of appeal, the pre-emptor is bound to comply with its directions. In our opinion, the High Court was right in holding that the pre-emptor's suit stood dismissed by reason of his default in not depositing the pre-emption price within the time fixed in the Trial Court's decree. It was next contended that the decree drawn up by the Trial Judge was not in accordance with the provisions of Order 20, Rule 14 in that it contained no direction to the effect that if the deposit was not made within the time fixed the suit will stand dismissed. In our view, this contention is not sound because the dismissal of the suit is as result of the mandatory provisions of Order 20, Rule 14 and not by reason of any decision of the Court and the omission to incorporate this direction in the decree could not in any way affect the rights of the parties.'
24. This decision clearly indicates that the effect of direction for payment contained in the Trial Court's decree is not taken away ipso facto by the circumstance that an appeal is preferred against the decision. It no doubt appears from the decisions in Tukaram Vishwanath v Rambhau Ramachandra, 1955 Nag LJ 169 (B); Lax-man v. Deorao, AIR 1940 Nag 202 (C), that an Appellate Court in dealing with an appeal from a decree for pre-emption, has the power of fixing fresh date of payment of price of pre-emption. In Jairam v. Obedulla, ILR 1946 Nag 925: (AIR 1947 Nag 81) (D), it is held that in the absence of statutory obligation to extend time there is no automatic extension of time where the Appellate Court is silent as to any extension of period for payment fixed by the Trial Court's decree.
25. In light of these decisions and in view of provisions of Section 21 of Gwalior Law of Pre-emption the decision of Dixit J., ought to be affirmed.
26. The appeal consequently is dismissed with costs. .