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Gian Chand Vs. Joginder Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 851 of 1979
Judge
Reported inAIR1983P& H330
ActsCode of Civil Procedure (CPC), 1908 - Sections 152 - Order XLI, Rule 5
AppellantGian Chand
RespondentJoginder Singh and anr.
Cases ReferredDattatraya v. Shaikh Mahaboob Shaikh Ali
Excerpt:
.....amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot 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..........decreed by the trial court on february 26, 1977, on payment of rs. 9,616.00 less the one-fifth pre-emption money already deposited. the said amount was to be deposited on or before april 22, 1977. meanwhile the defendant filed an appeal against the judgment and decree of the trial court and also made an application under o. xli, r. 5, of civil p. c. (hereinafter called the code), for the stay of the execution of the decree against him. the execution of the decree was consequently stayed. thereupon, the plaintiff made an application that he may be allowed not to deposit the pre-emption money because the execution of the decree had been stayed. on that application the lower appellate court passed the following order :'heard. in view of the fact (that?) the execution of the decree has been.....
Judgment:
ORDER

1. The suit of the plaintiff-petitioner for pre-emption was decreed by the trial Court on February 26, 1977, on payment of Rs. 9,616.00 less the one-fifth pre-emption money already deposited. The said amount was to be deposited on or before April 22, 1977. Meanwhile the defendant filed an appeal against the judgment and decree of the trial Court and also made an application under O. XLI, R. 5, of Civil P. C. (hereinafter called the Code), for the stay of the execution of the decree against him. The execution of the decree was consequently stayed. Thereupon, the plaintiff made an application that he may be allowed not to deposit the pre-emption money because the execution of the decree had been stayed. On that application the lower appellate Court passed the following order :

'Heard. In view of the fact (that?) the execution of the decree has been stayed in appeal, so the respondent pre-emptor may not deposit the amount till the decision of the appeal, Executing Court be informed.'

This order was passed on April 14, 1977, whereas the pre-emption money was to be deposited on or before April 22, 1977. The appeal was ultimately dismissed by the lower appellate Court on Nov. 7, 1977, but no order was passed to fix the time for deposit of the pre-emption money. On Dec. 17, 1977, when it came to the knowledge of the petitioner that no time had been fixed by the lower appellate Court for depositing the pre-emption money, he moved the necessary application under Section 152 of the Code, for the correction of the decree passed by the lower appellate Court. That application was resisted on behalf of the vendee-defendant and the learned Senior Subordinate Judge with enhanced appellate power after hearing the learned counsel for the parties dismissed the same with the observations that the plea that no order was passed by the Court for depositing the amount is palpably false because the order is clear that the applicant was to deposit the amount after the dismissal of the appeal which was disposed of on November 7, 1977. Dissatisfied with the same, the plaintiff has come up in revision to this Court.

2. The learned counsel for the petitioner contended that since the pre-emption money, as directed by the trial Court, was not deposited in view of the order passed in the appeal on April 14, 1977, the lower appellate Court shall have fixed some time for the deposit of the pre-emption money at the time of the disposing of the appeal. Since no such time was fixed in the judgment and decree of the lower appellate Court, the said omission could be rectified on the application filed on behalf of the petitioner under Section 152 of the Code. In support of this contention, the learned counsel relied upon Partap Kaur v. Sardara Singh, AIR 1974 Punj and Har 298. On the other hand, the learned counsel for the respondents contended that the petitioner was allowed not to deposit the pre-emption money till the decision of the appeal which, according to the learned counsel, meant that the amount was to be deposited immediately after the disposal of the appeal on November 7, 1977 or in any case within the time therefrom which was left with him between the date of the interim order dated April 14, 1977 and the order of the trial Court directing the deposit of the pre-emption amount on April 22, 1977.

3. After hearing the learned counsel for the parties, I find in the contention raised on behalf of the petitioner.

4. The matter is controversy between the parties stands concluded by a Division Bench judgment of this Court in Partap Kaur's case (AIR 1974 Punj and Har 298)(supra), wherein in somewhat similar situation, it was observed (at p. 299)-

'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 Civil P. C. 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 it is for the final Court to fix the time for deposit of the 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 Civil P. C. and that would have set at rest all this controversy.'

5. Consequently, this petition succeeds and is allowed. The application under Section 152 of the Code filed by the applicant is granted. As the learned Senior Subordinate Judge exercising the enhanced appellate powers could have supplied the omission under Section 152 of the Code, this Court is equally empowered to do so. Therefore, it is ordered that in the decree of the lower appellate Court it should be read that the pre-emptor is entitled to deposit the pre-emption money on or before Feb. 28, 1983, failing which his suit shall stand dismissed. No costs.

6. Petition allowed.


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