1. This execution second appeal has been placed before us in view of the order of Harbans Singh, Acting, C. J., dated the 17th July. 1969 The matters which the learned Judge wanted to be settled by a larger Bench, in our opinion, do not arise as will presently appear from the narration of facts. As the whole case has been placed before us. We have dealt with it and disposed of the same.
2. The land in dispute was sold by Smt. Rallo Devi, the grandmother of the present respondent. This sale was preempted by Vinod Kumar who was the grandson of the vendor. His suit was decreed by the trial Court on the 31st of August. 1962. with regard to two-third of the land on payment of Rs. 19,333-33. A direction was given in the decree that the balance of the pre-emption money had to be deposited by the 10th of November, 1962. The money could not be deposited by the 10th of November, 1962, because the Treasury was closed and, in fact, the deposit was made on the next working day, that is, the 12th of November. 1962. Against the decree, that was prepared, two appeals were preferred: one by the plaintiff-pre-emptor and the other by the defendant-vendee. The vendee's claim in appeal before the learned District Judge was that the pre-emption should have been allowed on payment of Rs. 29,000 and not on Rs. 19,333-33, as was done by the trial Court. On the other hand, the pre-emptor's claim in appeal was that he was entitled to pre-empt one-third of the land.
The learned District Judge allowed the pre-emptor's appeal and dismissed the vendee's appeal, with the result that a decree in favour of the pre-emptor was passed on payment of Rs. 29,000. The pre-emptor was given time to make good the balance to make up the amount of Rs. 29,000 by the 6th of . August, 1968. This was done within time. Against the decision of the learned District Judge, the vendee appealed. He contested the decision of the lower appellate Court on the ground, that possession by pre-emption could only be allowed to the extent of two-third of the land sold. This plea prevailed with this Court, with the result that the trial Court's decree was restored.
3. When the pre-emptor proceeded to execute the decree, an objection was raised before the executing Court that as the pre-emption money, namely. Rs. 19,333-33 had not been deposited on the 10th of November. 1962, the pre-emption suit should be deemed to have been dismissed; and. therefore, no decree could be passed and there was nothing to execute. This objection was rejected by the executing Court and so also by the appellate Court. Both the Courts proceeded on the view that the pre-emption money was in deposit in the Court before the 6th of August, 1968, and as the trial Court's decree had merged with the decree of the District Judge the deposit was within time. The vendee is dissatisfied with this decision and has come up in appeal to this Court.
4. It is not necessary to deal with the matters raised in the order of Harbans Singh, Acting C. J., which led the learned Judge to refer the matter to a Division Bench. In our, opinion, the appeal stands concluded on a narrow ground which escaped notice. The ground, on which we have proceeded to dismiss the appeal, is purely one of law; and in order to appreciate our decision, the following facts have to be kept in view. Under the trial Court's decree, the balance of the preemption money had to be deposited by the 10th of November. 1962. It was not deposited on that date, but was deposited on the 12th of November. 1962. The reason for this delay was that the Treasury was closed on the 10th as well as on the 11th of November, 1962. In any event if the deposit made on the 12th of November, 1962, was not a good deposit, the suit should have been dismissed and not decreed. However, a decree was framed and two appeals against that decree were preferred -- one by the pre-emptor and the other by the vendee. No objection was taken to the framing of the decree by the vendee in the trial Court or in the lower appellate Court. Both the parties proceeded on the assumption that the decree had been validly framed. The vendee could have non-suited the plaintiff-pre-emptor on this ground. This ground was available to him in appeal. Therefore, two results follow:--
(1) that the objection to late deposit hasbeen waived; and
(2) that the objection to the framing ofthe decree contrary to the directionsin the judgment has become resjudicata.
The matter does not rest here. Even in second appeal, no objection to the decree on this ground was taken. In this situation, it is idle to suggest that the decree, which has now become final inter partes, is, in any manner, defective. The defect, if any, in the decree has been cured by the application of the rules of res judicata and waiver.
5. For the reasons recorded above, thisappeal fails and is dismissed, but therewill be no order as to costs in this Courtonly.
6. I agree.