1. This appeal under Clause X of the Letters Patent is directed against the decision of the learned Single Judge of this Court reversing in appeal the decision of the Courts below and dismissing the execution application.
2. In order to appreciate the controversy it is necessary to state the relevant facts. A suit for pre-emption was filed on 4th April, 1963, for possession of 240 kanals 14 marlas of land by Mst. Partap Kaur and Gurbux Singh. This suit was decreed by the Subordinate Judge on 26th March, 1965. The plaintiffs were directed to deposit Rupees 12,000/- in court by 26th May, 1965, after deducting 1/5th of the pre-emption money already deposited by them. Failure to deposit the amount would have resulted in dismissal of the suit. This decree was appealed against by the vendee and the appeal was partially allowed by the learned District Judge, Ferozepore on 20th November, 1965. The result was that the decree in favour of Gurbux Singh was maintained to the extent of 1/3rd on payment of Rs. 4,000/- on or before 20th December, 1965, failing which his claim was to be dismissed with costs and the suit of the pre-emptors regarding 2/3rd of the land was dismissed. It may be mentioned here that the direction by the learned District Judge to deposit the money on or before 20th December, 1965, was meaningless, because the pre-emptors had already deposited Rupees 12,000/-, i.e.; much more than the amount for which the learned District Judge maintained the decree. Against the decree of the learned District Judge the parties preferred tow appeals. One appeal was by the vendee, namely, R. S. A. No 1737 of 1965 and the other was by the pre-emptors, namely, R. S. A. No. 154 of 1966. The vendee obtained an ex parte order of stay on 3rd January, 1966, to the effect that the possession of the land be not delivered to the pre-emptors. An application was moved for the vacation of the stay order and, in the alternative, a prayer was made that the pre-emptors might be allowed to withdraw the pre-emption money. Gurdev Singh, J; then passed the following order on 2nd February, 1966:
'Shri Majithia, appearing for the opposite party does not oppose the petition and has no objection to the petitioner's withdrawing the amount that was deposited by him without prejudice to his client. The petition is, accordingly, allowed. No order as to costs The appeal be set down for hearing at an early date.'
Both these appeals came up for hearing before Tuli, J; and the learned Judge affirmed the decision of the Lower Appellate Court with a modification that the decree in favour of Gurbux Singh was to be in favour of both Gurbux Singh and Mst. Partap Kaur. However, the learned Judge failed to fix any date for the deposit of the pre-emption money which had been allowed to be withdrawn by the order of Gurdev Singh, J. But the preemptors deposited the money within 15 days of the order of the learned Single Judge and proceeded to execute the decree. The executing Court ordered the delivery of possession in execution. An appeal against that order was dismissed by the Lower Appellate Court. The matter then was brought in execution second appeal to this Court and it was placed for hearing before Tuli, J. The learned Single Judge reversed the decision of the Executing Court, but gave leave under Clause X of the Letters Patent to appeal and that is how this appeal has been placed before us.
3. In our opinion, the learned Single Judge was in error in allowing the appeal of the vendee. It was incumbent upon the learned Single Judge when the decree of the Lower Appellate Court was affirmed to allow time to the pre-emptors to put in pre-emption money because by an order of this Court it had been allowed to be withdrawn. This was an omission and the same could be supplied at any time under Section 152 of the Code of Civil Procedure, and at the stage when the appeal was before the learned Single Judge, he could have supplied this omission. Moreover, the decision of the Supreme Court in Dattatraya v. Shaikh Mahaboob Shaikh Ali, AIR 1970 SC 750, is directly in point and that decision also provides that is for the final Court to fix the time for deposit of the pre-emption money where a stay order has been obtained. Therefore, we are clearly of the view that the learned Single Judge was wrong in not exercising his undoubted jurisdiction under Section 152 of the Code of Civil Procedure and that would have set at rest all this controversy.
4. Mr. G. R. Majithia, learned counsel for the vendee has raised a very novel contention. His contention is that the decree of the learned District Judge provided payment by a certain date and that order had not been complied with. There is complete fallacy in this argument. The amount of Rs. 12,000/- was deposited in the trial Court. What the District Judge required was to make the deposit of Rs. 4,000/- Surely the sum of Rs. 4,000/- is much less than Rupees 12,000/- and I fail to see how a party can be required to carry out an infructuous direction, particularly when an amount of more than Rs. 4,000/- was already deposited towards the pre-emption decree. Therefore, this contention of the learned counsel is wholly futile and must be rejected.
5. Mr. Majithia then proceeds to argue that as the learned Single Judge of this Court did not fix time it was not open to the pre-emptors to deposit the pre-emption money and get the decree executed. As we have already said, that is a matter which could have been set at rest by supplying the omission under Section 152 of the Code of Civil Procedure.
5-A. The learned Counsel then argued that by passing order under Section 152 of the Code of Civil Procedure, this Court would be modifying the decree. This is a complete misreading of the provisions of Section 152. These provisions do not amount to any modification of the decree which merely permit the court to supply and accidental slip or omission to correct any clerical or arithmetical errors. The decree remains the decree that is finally passed and no modified decree comes into being. That being the position, the contention of the learned Counsel for the vendee is futile and must be rejected. As the learned Single Judge could have supplied the omission under Section 152 of the Code of Civil Procedure, we are equally entitled to do so and we order that in the decree it should be read that the pre-emptors are entitled to deposit the pre-emption money with in one month from the date of the decree of the High Court dated 10th of October, 1968. The pre-emptors, did make that deposit within this period and, therefore, the Courts below were right in executing the decree.
6. For the reasons recorded above, we allow this appeal set aside the judgment of the learned Single Judge and restore that of the Lower Appellate Court. There will be no order as to costs.
7. Appeal allowed.