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Panni Lal and ors. Vs. Daya Ram - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 553 of 1978
Judge
Reported inAIR1985P& H277
ActsCode of Civil Procedure (CPC), 1908 - Sections 114 and 151 - Order 48, Rule 1
AppellantPanni Lal and ors.
RespondentDaya Ram
Cases ReferredLabh Singh v. Hardayal
Excerpt:
.....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 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..........the balance amount of rs. 200/- was deposited by him on aug. 25, 1977, after the dismissal of the appeal filed by the vendees-defendants in the court of the district judge, gurgaon, on july 30, 1977. the said appeal was filed on march 14, 1977 and on march 15, 1977, stay order was issued by the learned district judge whereby it was directed that the execution of the decree under appeal be stayed. when the plaintiff-decree-holder took out execution of the said decree, the judgment-debtors offered resistance to the same on the ground that the suit brought by him stood dismissed as he had failed to deposit the entire pre-emption money within the time as fixed in the decree. the executing court upheld the objection of the judgment-debtors vide orders dated nov. 3, 1977 and, thus, dismissed.....
Judgment:
ORDER

1. Daya Ram. plaintiff, filed the suit for possession by way of pre-emption, which was decreed in his favour on Feb. 10, 1977 on the conditional payment of Rs. 39,980/- which included one-fifth of the pre-emption money already deposited by him. The balance amount was to be deposited on or before March 31, 1977; failing which the plaintiff's suit was deemed to have been dismissed. He had deposited one-fifth of the pre-emption money amounting to Rs. 7,200/- already and the balance amount of Rs. 32,580/- was deposited by him on March 23, 1977. In this way, he deposited only Rs. 39,780/- instead of Rs. 39,980/- before the date fixed in the decree of the trial Court. The balance amount of Rs. 200/- was deposited by him on Aug. 25, 1977, after the dismissal of the appeal filed by the vendees-defendants in the Court of the District Judge, Gurgaon, on July 30, 1977. The said appeal was filed on March 14, 1977 and on March 15, 1977, stay order was issued by the learned District Judge whereby it was directed that the execution of the decree under appeal be stayed. When the plaintiff-decree-holder took out execution of the said decree, the judgment-debtors offered resistance to the same on the ground that the suit brought by him stood dismissed as he had failed to deposit the entire pre-emption money within the time as fixed in the decree. The executing Court upheld the objection of the judgment-debtors vide orders dated Nov. 3, 1977 and, thus, dismissed the execution application. Thereafter, the decree-holder moved a review application under O. XLVIII, R. 1 read with Secs. 114 and 151, Code of Civil Procedure. On review the earlier order dated Nov. 3, 1977, passed by the executing Court was set aside by it and the objection petition filed on behalf of the judgment-debtors was dismissed vide order dated Jan. 6, 1978. According to the executing Court, earlier, while discussing the judgment of the Supreme Court in Dattatraya v. Shaikh Mahaboob, Air 1970 SC 750, it had committed an error in saying that the plaintiff had to deposit the pre-emption money immediately after the decision of the appeal. Since, it was overlooked earlier by him, the earlier order dated Nov. 3, 1977, was set aside on review, Dissatisfied with the same the judgment-debtors filed an appeal before the District Judge, Gurgaon, wherein the order of the executing Court passed in review was maintained. Dissatisfied with the same, they have come up in revision to this Court.

2. The facts, reproduced above, are not in dispute. Admittedly, the decree-holder deposited the sum of Rs. 39,780/- (including the one-fifth pre-emption money amounting to Rs. 7,200/-) on March 23, 1977 and, thus, the pre-emption money so deposited was short of Rs. 200/-. The said amount of Rs. 200.-was deposited on Aug. 25, 1977. The application dated Aug. 17, 1977, filed on behalf of Daya Ram, plaintiff, in this behalf before the Sub-Judge, is very material. In the said application, which is in Hindi, it was stated that by mistake Rs. 200/- less have been deposited, the appeal filed by the respondents has been dismissed and that it was prayed that he be allowed to deposit Rs. 200/-. The order of the Court dated Aug. 23, 1977, thereon reads:--

'Be deposited at the risk and responsibility of the applicant'.

The view taken by the Courts below relying upon the judgment of the Supreme Court in Dattatraya's case (supra), is that since there was an appeal on behalf of the vendees and the execution of the decree was stayed on March 15, 1977, the decree-holder was entitled to deposit the balance amount after the decision of the appeal, which was dismissed on July 30, 1977. There cannot be any dispute with the proposition of law as laid down by their Lordships of the Supreme Court in Dattatraya's case (supra). As a matter of fact, therein the earlier view taken by the Supreme Court in Naguba Appa v. Namdev AIR 1954 SC 50 was not brought to the notice of their Lordships. In any case, both the abovesaid decisions of the Supreme Court came up for consideration before their Lordships in Sulleh Singh v. Sohan Lal, 1975 Pun LJ 400: (AIR 1975 SC 1957). The ration of the decision in Naguba Appa's case (supra), was explained therein. However, on the facts and circumstances of Sulleh Singh's case (supra), it was held that since there was no stay order passed by the appellate Court and the pre-emptors had failed to deposit the pre-emption money within the time allowed by the trial Court in its decree, the ratio of the decision in Naguba Appa's case (supra), applied to the said case. In Dattatraya's case (supra), what was held was that the decree in terms of O. XX, R. 20, Code of Civil Procedure, imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties, the plaintiff decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. As regards the present case, this proposition of law, as laid down by the Supreme Court, is not attracted. Admittedly, in spite of the stay orders passed on March 15, 1977, in appeal, filed on behalf of the vendees, staying the execution of the decree, the pre-emptor deposited the balance amount of the pre-emption money on March 23, 1977. By mistake, the said amount was less by Rs. 200/-. Thus, the decree-holder never sought the protection of the stay orders for not depositing the entire balance amount on March 23, 1977. Even in the application filed by him on August 17, 1977, for depositing Rs. 200/- as mentioned earlier, no such plea was taken. As observed above, the only ground taken by him therein was that a sum of Rs. 200/- was deposited less by mistake. Dattatraya's case (supra), relied upon by both the Courts below is clearly distinguishable and has no applicability to the facts of the present case. Anant Ram v. Sant Singh, 1979 Pun LJ 520, relied upon by the learned counsel for the respondent, has also no applicability to the fats of the present case. Therein, the trial Court had granted the plaintiff-pre-emptor time to deposit pre-emption amount while passing the decree. The vendee-defendant obtained stay from the appellate Court at the time of filing the appeal. The appellate Court while dismissing the appeal failed to fix a fresh date for deposit of pre-emption money. Consequently the decree-holder filed an application before the appellate Court for fixing time for deposit of the pre-emption amount, which was allowed by it. Revision against the said order was dismissed by this Court. Such is not the position in the present case.

3. The only occasion for the vendee-judgment-debtors to take the objection that the pre-emption money was not deposited within time was at the time of the execution of the decree. Prior thereto, they had no notice of the deposit. In this behalf, reference may be made to the Full Bench judgment of this Court in Labh Singh v. Hardayal, AIR 1977 Punj and Har 294. Once the executing Court had accepted the objections filed on behalf of the judgment-debtors, there was no occasion for it to review the same. In any case, the review was made by it on the ground that the ratio of the decision in Dattaraya's case (AIR 1970 SC 750) (supra) was not correctly followed by it. As observed earlier, the said judgment of the Supreme Court is clearly distinguishable.

4. It is not disputed that if it is held that the entire pre-emption money was not deposited within time as directed by the trial Court, then, in view of the provisions of O. XX, Rule 14 of the Code of Civil Procedure, the plaintiff's suit shall stand dismissed as per the terms of the decree.

5. In view of the above discussion, this revision petition succeeds and is allowed. The impugned order of the Court below and the order dated Jan. 6, 1978, passed by the executing Court are set aside. The order dated Nov. 3, 1977, passed by it, accepting the objections filed on behalf of the judgment-debtors, petitioners, is restored with no order as to costs.

6. Revision allowed.


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