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Sardul Singh and anr. Vs. Harbhajan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 277 of 1970
Judge
Reported inAIR1973P& H319
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 2
AppellantSardul Singh and anr.
RespondentHarbhajan Singh and ors.
Cases ReferredUdham Singh v. Atma Singh.
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........and on his own behalf along with his second son sikandar singh received the payment of the pre-emption money from the pre-emptors. pritam singh and chanchal singh who were to pay 2/3rd of the pre-emption money effected the payment of a sum of rs. 12,326/- to gopal singh, who accepted the same on his own behalf as also on behalf of harbhajan singh and sikandar singh, in the following manner:1. cheque for rs. 3,473/- issued by the court on the strength of the deposit of 1/5th share of the pre-emption money living with the court on behalf of the said pre-emptors. 2. rs. 8,853/- were paid to them by the said pre-emptors in the court. 5. sardul singh and rur singh pre-emptors deposited their 1/3rd share of the pre-emption money before 15th may, 1967, and also deposited thereafter and.....
Judgment:

1. This second execution appeal which is directed against the order of the Additional District Judge, Amritsar, dated December 10, 1969 was in the first instance heard by me on 3-4-1972 and the judgment was reserved. Before the judgment could be pronounced respondents Nos. 4 and 5 (who as the office record shows, refused to accept service and were proceeded against ex parte) made an application for the re-hearing of the appeal after setting aside the said ex parte proceedings. I allowed that application by my order, dated April 18, 1972.

2. Through two separate suits one filed by Sardul Singh and Rur Singh sons of Katha Singh vendor and the other by Pritam Singh son of Mansa Singh and Chanchal Singh son of Gurbax Singh the sale, dated 20-1-1965 was sought to be pre-empted.

3. Both the suits were decreed and two separate decrees were passed in terms of Order 20 Rule 14, Civil P. C. directing therein the pre-emptors to deposit the balance amount of their respective shares by 15th May, 1967. In case any of the pre-emptors failed to deposit his share by the due date the other pre-emptor or pre-emptors as the case may be in addition to their own shares could deposit the share of the defaulting pre-emptor and then claim the possession of the share of such defaulting pre-emptor.

4. On 9th May 1967, Gopal Singh on behalf of his son Harbhajan Singh who at the relevant time was serving in Border Security Force and on his own behalf along with his second son Sikandar Singh received the payment of the pre-emption money from the pre-emptors. Pritam Singh and Chanchal Singh who were to pay 2/3rd of the pre-emption money effected the payment of a sum of Rs. 12,326/- to Gopal Singh, who accepted the same on his own behalf as also on behalf of Harbhajan Singh and Sikandar Singh, in the following manner:

1. Cheque for Rs. 3,473/- issued by the Court on the strength of the deposit of 1/5th Share of the pre-emption money living with the court on behalf of the said pre-emptors.

2. Rs. 8,853/- were paid to them by the said pre-emptors in the Court.

5. Sardul singh and Rur Singh pre-emptors deposited their 1/3rd Share of the pre-emption money before 15th May, 1967, and also deposited thereafter and before 16th June, 1967, the 2/3rd Share of the pre-emption money falling to the share of their rival pre-emptors who had not made the full payment of their share of the pre-emption money. Thereafter Sardul Singh and Rur Singh took out execution proceedings of the pre-emption decree claiming to be put into possession of the whole of the land, subject matter of the sale deed. The rival pre-emptors raised objection to their claim. The executing Court sustained the objections of the said pre-emptors and dismissed the execution application and the appellate Court affirmed its judgment, hence the present appeal at the instance of Sardul Singh and Rur Singh.

6. The Courts below were of the opinion that it is the judgment debtors i.e. the vendees who could object to the short payment of the pre-emption money which was only Rs. 2.83, and take advantage of the said lapse, and not the rival pre-emptors.

7. Mr. Meja Singh, counsel for the appellant, has urged that the rival pre-emptors forfeited their right in terms of the decree, the moment they failed to deposit full amount of their shares by the due date.

8. Mr. Ram Lal Aggarwal learned counsel for respondents Nos. 4 and 5 on the other hand, in support of the view taken by the Courts below, has urged that there is another aspect from which the matter under consideration can be viewed i.e. that the view of the provisions of Order 21, Rule 2, Civil Procedure Code. It is open to the parties to change and adjust the decree. He has placed reliance in support of his submission, on Udham Singh v. Atma Singh., AIR 1941 Lah 149 (FB) and made a pointed reference to the following observations of Young. C. J., who rendered the judgment for the Court:

'There is nothing in my opinion to prevent the decree-holder and the judgment debtor entering into an entirely new contract for arranging their affairs so long as the contract is complete and the intention of the parties is to extinguish the decree altogether and to rely upon the new contract. A contract to be performed in the future is based on good consideration and so long as the contract complies with the rules of law laid down concerning contracts, the decrees would be adjusted within the meaning of the Order 21, Rule 2.'

I find merit in the contention advanced by the learned counsel for the respondents.

9. It is apparently for the decree holder and the judgment debtor to achieve satisfaction of the decree, as mutually desired or agreed upon between them. Once the decree stands satisfied then an argument regarding non-payment of full decretal amount cannot arise. That argument can arise only if the decree-holder did not accept the short payment in full satisfaction of the decree. I am in respectful agreement with the view enunciated in the Full Bench case that it is open for the decree-holder and the judgment debtor to change or adjust the decree. In the present case, the decree-holder was satisfied with the payment of the decretal amount, even when the amount so paid fell short of the decretal amount, and discharged the judgment-debtor of his burden.

10. Hence for the reasons stated, this appeal fails and is hereby dismissed, but in the circumstances of this case. I make no order as to costs.

11. Appeal dismissed.


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