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Jagtar Singh and anr. Vs. Kartar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 310 of 1975
Judge
Reported inAIR1980P& H313
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 20, Rule 14; Punjab Pre-emption (Repeal) Act, 1973 - Sections 3
AppellantJagtar Singh and anr.
RespondentKartar Singh and ors.
Cases ReferredIn Sulleh Singh v. Sohan Lal
Excerpt:
.....to be called the repealing act), 1973. 3. according to the learned counsel for the appellants, by dismissing the objections of the vendee-judgment-debtors, no new decree for pr-emption bad to be passed or affirmed so as to attract the provisions of the repealing act at the time when the illegal compromise was effected by hardial singh the next friend of the minor plaintiffs, the time far deposit of the decretal amount bad not et expired and 18 days were still left. after this compromise bad been set aside by the civil court and the parties having been relegated to the position existing before the compromise, the plaintiffs were within their right to make deposit of the decretal amount before the expiry of 18 days. in these circumstances, the original decree for preemption on was..........oct. 21, 1971, holding that the deposit of the decretal amount was not in accordance with the pre-emption decree and was thus invalid aggrieved by this order, the plaintiffs-decree-holders challenged the same in appeal, but to no effect. the order was challenged in second appeal. the learned single judge though agreed with the contention of the appellants that the deposit of the decretal amount had been made within time yet dismissed the appeal on the ground that the acceptance of the appeal will tantamount to passing a new decree of pre emption in the suit which could not be done as the punjab pre-emption act had been repealed by s. 3 of the punjab pre-emption (repeal) act (ii of 1973) (hereinafter to be called the repealing act), 1973.3. according to the learned counsel for the.....
Judgment:

Harbans Lal, J.

1. Execution second appeal was dismissed by the learned single Judge by his order dated Apr. 9, 1975 The same has been challenged in this letters patent appeal.

2. The admitted facts are that the land in dispute was sold by one Bhag Singh in favour of Kartar Sm respondent. This sale was pre-empted by the present appellants in a suit for pre-emption filed on May 20, 1966 through their next friend and uncle Hardial Sin as they were minors at that time. The suit was decreed on Oct. 13, 1966, with the direction that the plaintiffs-decree-holders will deposit the balance of the sale price of Rs. 12,000/- on or before Feb. 15, 1967. On Jan 28 1967 the said next friend Hardial Singh entered into a compromise With the vendee-respondent and relinquished thy claim of the plaintiffs-decree-holders for a consideration of Rs. 6,300/-. This compromise, however, had been effected without the permission of the Court On Oct. 23, 1968, the plaintiffs-appellants through their mother, Jagir Kaur, challenged this compromise through a suit for declaration on the ground that the same was fraudulent an illegal and not binding on them. This suit was decreed on Dec. 30, 1969, and the parties were relegated to the position held by them before the compromise entered on Jan. 28, 1967. This decree was not challenged by the vendees and therefore, became final. The initial deposit of Rs. 3,000/- equivalent to one-fifth of the sale price made at the time of the filing of the suit for pre-emption had also been withdrawn. After the second suit had been decreed, the appellants deposited the amount of Rs. 15,000/- equivalent to the sale price on Jan. 12, 1970, that is within 30 days of the decree under the orders of the Court. The plaintiffs-decree-holders thereafter filed execution application to obtain possession of the land in dispute The vendees challenged the executability of the decree and filed objections under S. 47, Civil P. C. These objections found favour with the executing Court and the execution application was dismissed by order dated Oct. 21, 1971, holding that the deposit of the decretal amount was not in accordance with the pre-emption decree and was thus invalid Aggrieved by this order, the plaintiffs-decree-holders challenged the same in appeal, but to no effect. The order was challenged in second appeal. The learned single Judge though agreed with the contention of the appellants that the deposit of the decretal amount had been made within time yet dismissed the appeal on the ground that the acceptance of the appeal will tantamount to passing a new decree of pre emption in the suit which could not be done as the Punjab Pre-emption Act had been repealed by S. 3 of the Punjab Pre-emption (Repeal) Act (II of 1973) (hereinafter to be called the Repealing Act), 1973.

3. According to the learned counsel for the appellants, by dismissing the objections of the vendee-judgment-debtors, no new decree for pr-emption bad to be passed or affirmed so as to attract the provisions of the Repealing Act at the time when the illegal compromise was effected by Hardial Singh the next friend of the minor plaintiffs, the time far deposit of the decretal amount bad not et expired and 18 days were still left. After this compromise bad been set aside by the civil court and the parties having been relegated to the position existing before the compromise, the plaintiffs were within their right to make deposit of the decretal amount before the expiry of 18 days. Therefore, the deposit was made within time. In these circumstances, the original decree for preemption on was perfectly valid operative an executable, argued the learned counsel. No doubt, as a result of the declaratory decree by which the alleged compromise entered into by the next friend of the plaintiffs with the vendee relinquishing the right of the decree-holders (was set aside) the original decree was restored and the acceptance or the rejection of the objections by the vendee-judgment-debtor during execution proceedings will have no effect on the legal by or the validity of the decree as such. In case of acceptance of the objections the decree will be held to be inexecutable and in case of rejection, the decree will be executable in accordance with law. In either case, the legality of the decree when it was passed remained intact and was not in any way affected. The legal position is quite different when decree for pre-emption is the subject matter of appeal whether in the District Court or in the High Court and the final decision in the appeal results in either affirmation of the decree or the dismissal of the same. In that case, the Repealing Act stood in the way of disposing of the appeal in either way. S. 3 of the Repealing Act only prescribed the prohibition that no court shall pass a decree in any suit for pre-emption. It is settled law as laid down by their Lordships of the Supreme Court in Amarjit Kaur v. Pritam Singh 1974 Pun LJ 406: (AIR 1974 SC 2068), that an appeal is a rehearing of the suit and if the High Court was to dismiss the appeal it would be passing a decree in a suit. In case of affirmation of a decree also, a new decree of affirmation has to be passed. However the execution proceedings cannot be treated at the same level and the executing court cannot go behind a decree, nor has it the jurisdiction to affirm, modify or reverse the same I am, therefore, of the view that the Repealing Act bas not taken away the jurisdiction of the appellate Court in the present case in which the only matter waiting decision is the validity of the objections filed by the vendee-judgment-debtor.

4. As regards the other contention, the learned counsel for the appellants is on a tenuous ground. His contention is that by the declaratory decree in the second suit filed on behalf of the appellants in which the compromise was held to be illegal and the parties were relegated to their original position as existing before the compromise, the time for making deposit of the decretal amount in the pre-emption decree was automatically extended by 18 days which period was still available for making deposit before the illegal compromise was entered into. It is not disputed that during the pendency of the second suit, the execution of the pre-emption decree in the first suit was not stayed, nor was any specific order passed in the decree in the second suit extending the time for the appellants to make deposit of the decretal amount within a specified time. In these circumstances, it is not possible to hold that the time for deposit of decretal amount in the pre-emption decree was automatically extended or the unexpiredrio8 of 18 days was revived.

5. In Naguba Appa v Namdev, AIR 1954 SC 50, it was held that under O. XX, R. 14, Civi1 P. C. (dealing with pre-emption decrees) mere filing of an appeal did not suspend the decree of the trial Court and unless the decree was altered in any manner by the Court of appeal, the preemptor was bound to comply with the directions.

6. In Sulleh Singh v. Sohan Lal, AIR 1975 SC 1957, the decree in a pre-emption suit passed by the trial Court was challenged in appeal However, the lower appellate Court did not grant any stay to the plaintiffs-decree-holders. They also did not deposit the pre emption amount within the stipulated period. It was held that it was incumbent upon the lower appellate court to have dismissed the suit and that it had no jurisdiction to extend the time for payment.

7. It was held by a Full Bench of this Court in Labh Singh v Hardayal, AIR 1977 Punj and Har 294, that in case proper pre-emption amount was not deposited in terms of the decree the executing Court was bound to see that the pre-emption amount for which the decree had been passed was paid to the judgment-debtor and that the same was deposited in time. It was held as follows:

'If that is not done, it cannot he said as a matter of law that since no such grievance was made in the grounds of appeal, therefore, the objection cannot be taken at the stage of the execution.'

8. In view of the above decisions, the position of law is beyond controversy that the decretal amount in pre-emption suits must be deposited within the time specified in the decree. Unless the execution of the decree is stayed during the pendency of the appeal or other proceedings by a competent court, time for deposit of the, decretal amount does not get extended automatically. In case of default the suit stands dismissed and the judgment-debtor is within his right to raise an objection regarding the inexecutability of such a decree in execution proceedings. In the present case, the pre-emption suit was decreed on Oct. 13, 1966, and the balance pre-emption amount was to be deposited on or before Feb. 15, 1967. This period had not been extended by any court. As such the deposit of the decretal amount by the appellants on Jan. 12, 1970, cannot be held to be a valid deposit on any ground. Consequently, the objections of the vendee-judgment-debtor were rightly allowed by the executing Court and the lower appellate Court. In view of the same there is no merit in this appeal which is hereby dismissed. However, in view of the circumstances of the case, there will be no order as to costs.

S.S. Sandhawalla, C.J.

9. I agree.

10. Appeal dismissed.


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