1. The facts giving rise to this second appeal against the order of the District Judge, Patiala, dated 6th May, 1970, affirming that of the Subordinate Judge First Class, Nabha, dated 31st January, 1970 whereby the objection application of the appellants under Section 47 of the Civil Procedure Code was dismissed are as follows.
2. The land in dispute was sold by one Piara Singh to Niranjan Singh and others and this sale was challenged by Sher Singh who claimed possession through pre-emption. The pre-emptor succeeded in obtaining a decree in his favour on 3rd February, 1967. After depositing the sale-price Sher Singh obtained possession on 7th March, 1967. The vendees being dissatisfied with the decision of the suit brought by Sher Singh filed an appeal in the Court of the Additional District Judge, Patiala, which was partly accepted by judgment dated 8th June, 1967. The decree of the trial Court was modified to the extent that Sher Singh was ordered to pay Rs.83.75 more to the defendants over and above what had been allowed by the Trial Court. The additional sum was ordered to be deposited on or before 15th July, 1967. In spite of the modification of the decree by the Additional District Judge, Patiala, the pre-emptor did not deposit the additional amount within time with the result that the vendees Niranjan Singh and others made an application in the Court of the Subordinate Judge First Class, Nabha, claiming dismissal of plaintiff's suit and restoration, of possession of the property in dispute from Sher Singh. The vendees succeeded in this application but in appeal the order of the trial Court was set aside and the case was remanded for a fresh decision after two additional issues had been framed. The following were the two additional issues framed by the appellate Court.
(1) Whether the plaintiffs are entitled to get adjusted the costs of the execution proceedings which they had brought against the vendees to get possession of the suit land prior to the time the First Appellate Court had decided the appeal between the parties?
(2) If issue No. 1 is decided in affirmative what is the sum or expenditure which was incurred by the plaintiffs in the above said execution proceedings?
Both the issues were decided in favour of the pre-emptor and the application of the vendees, Niranjan Singh and Didar Singh, under Section 144 read with Section 47 of the Civil Procedure Code was dismissed. The appeal of the vendees, Niranjan Singh, Niranjan Singh and Didar Singh, was also dismissed by the impugned order.
3. Before proceeding with the arguments raised in the appeal it may be mentioned that the objectors, Niranjan Singh and Didar Singh, were able to get possession of the land after obtaining the order of the trial Court on 5th October, 1967 in execution proceeding even though that order was set aside by the appellate Court on 6th December, 1968.
4. The main argument raised on behalf of the appellant is that the plaintiff-pre-emptor's failure to deposit Rs.83.75 which he had been directed to deposit by the first appellate Court would entail the dismissal of the suit. It was urged that even if the amount of Rs.61.70, which was the amount of cost to which he was entitled under the decree, was to be adjusted against the decretal amount, the deposit made by the pre-emptor would still fall short by Rs.22.05 and that as this amount had not been deposited the suit of the plaintiff-pre-emptor was liable to be dismissed and the objection petition filed by the appellants ought to have been accepted by the Courts below. As against this, it is pointed out by the learned counsel for the respondent that besides Rupees 61.70, which the plaintiff-pre-emptor was entitled to recover from the vendee, he was also entitled to recover the cost incurred by him in the execution application in which he had obtained in possession of the land in suit.
5. From the rival contentions of the parties it would appear that the question which arises for consideration is whether the plaintiff who had obtained a decree by pre-emption could be taken to have complied with it by depositing a sum sufficient to cover the decree after deducting not only the costs which were awarded to him under the decree but also the costs which he may have incurred in the execution proceedings taken by him to take possession of the land. Coming to the facts of the present case, we find that plaintiff's suit was decreed in the following terms:--
'The suit of the plaintiff is decreed and the decree for possession of the suit land is passed in favour of the plaintiff against the defendants with costs provided the plaintiff deposited on or before 3-3-1967 a sum of Rs.11,500 plus Rs.660 failing which the suit shall stand dismissed with costs.'
In terms of this decree the plaintiff had to deposit Rs.12,160, and it is not disputed that he could deduct Rs.61.70 out of this amount. In other words, even if he had deposited Rs.12,099.30 no objection could have been taken to the deposit. As, however, the decree of the trial Court had been modified the plaintiff had to deposit Rs.83.75 more. The plaintiff having deposited Rs.12,160 it is pointed out that the deposit was short by Rs.22.05 and that this suit was, therefore, liable to be dismissed.
6. Relying on Kalpuria Mal v. Wali Muhammad, AIR 1922 Lah 142 and Bechai Singh v. Shami Nath Tewari, (1911) 10 Ind Cas 454 (All) the learned Courts below came to the conclusion that the deposit made by the plaintiff was sufficient compliance with the decree as he was entitled to deduct the amount of costs awarded by the trial Court and that incurred by him in execution proceedings.
7. In both the above-mentioned cases the view taken was that where the plaintiff's suit for possession by pre-emption was decreed with costs the deposit by him of a sum sufficient to cover the decree after deducting the costs, would be sufficient compliance with the decree. It was, however, not held in either of these two cases that the plaintiff could deduct from the amount which he had to deposit under the decree not only the costs awarded by the decree but also the costs subsequently incurred by him in executing the decree. The learned lower Courts were, therefore, wholly in error in seeking support from Kapuria Mal's, AIR 1922 Lah 142 and Bechai Singh's (1911) 10 Ind Cas 454 (All) cases (supra) for the case set up by the plaintiff-pre-emptor. In fact the appellant can claim that the plaintiff was not entitled to deduct anything spent by him in execution proceedings as this was not part of the decree which he was required to comply with before he could get possession. He was entitled to deduct only the sum allowed as costs by the decree under which he claimed a right to get possession. His right did not extend to deducting any other amount which he may be entitled to recover from the judgment-debtor. In order to be entitled to execute the decree obtained by him the successful pre-emptor has to show that he has sufficiently complied with the decree which he has obtained. If in terms of the decree costs are allowed to him he would be within his rights to deduct the amount of costs while depositing the amount which he was required to deposit under the decree so that his suit could not stand decreed. Any other amount which is not part of the decree obtained by him cannot be adjusted against the amount he is required to deposit under the decree as it is not part of the decree. Taking this view of the matter, I find that by failing to deposit Rs.22.05 on or before 15th July, 1967 the plaintiff has failed to comply with the decree. He is, therefore, not entitled to take possession of the land. In fact, his suit stands dismissed and the question of getting possession in execution of the decree would not arise.
8. On behalf of the appellant it was also pointed out that even if the plaintiff was allowed o deduct the costs incurred by him in execution proceedings the deposit would still fall short of the amount required to be deposited by him. In this connection, reference was made to the statement of Jagir Singh, Ahalmad of the Court of the Subordinate Judge First Class, Nabha, P.W. 1, who had produced the execution file in Execution Case No. 30 dated 7th March, 1967 decided on 24th June, 1967. On the basis of this file he deposed that in the execution application Rs.61.70 was claimed as costs of the suit and Rs.35 as costs of the execution application. In his report, however, he had only assessed expenses at Rs.72 as he had not allowed any fee for the pleader. There is nothing in the statement of Jagir Singh as to what was awarded by the trial Court as costs of the execution application. The learned Courts below, however, took great pains to come to the conclusion, on a reference to the relevant rules, that the plaintiff would have been entitled to Rs.25 as pleader's fee and have further held that he could deduct Rs.35 which he had incurred as costs of the execution application from the amount he had to deposit under the decree.
9. The view of the learned Courts below is clearly erroneous. What the plaintiff would have been able to claim is an entirely different matter so far as the decision of this case is concerned, as we are only concerned to determine as to what costs were actually awarded by the execution Court. The plaintiff has failed to bring material on the record to establish that he had been awarded Rs.35 as costs of the execution application. This being the position, the learned Courts were not justified in holding that the plaintiff would also deduct Rs.35 which could have been costs allowed to him by the executing Court. Even if it be accepted that the plaintiff could deduct the costs incurred by him in execution application, it will not advance his case as he has failed to establish that Rs.35 had been awarded to him as costs in these proceedings.
10. For the reasons stated above, I am of the view that this second appeal must succeed as the plaintiff-pre-emptor had failed to comply with the decree and his suit consequently stands dismissed. The vendees are, therefore, entitled to possession of the land. The appeal is consequently allowed and the orders of the Courts below are set aside. Considering the circumstances of the case the parties will bear their own costs throughout.
11. Appeal allowed.