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Smt. Jodhayan Vs. Babu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 94 of 1972
Judge
Reported inAIR1983SC57; 1983(31)BLJR93; 1982(2)SCALE1061; (1983)1SCC26; [1983]1SCR844; 1983(15)LC15(SC)
ActsCode of Civil Procedure (CPC) - Sections 148 - Order 20, Rule 14 and 14(1) - Order 41, Rules 1 and 3A - Order 42, Rule 1; Limitation Act - Sections 5
AppellantSmt. Jodhayan
RespondentBabu Ram and ors.
Appellant Advocate Uma Datta and; Krishna Datt, Advs
Respondent Advocate S.K. Mehta, ; P.N. Puri and ; M.K. Dau, Advs.
Prior historyAppeal by Special Leave from the Judgment and Order dated the 23th July, 1971 of the Punjab and Harayana High Court in Execution Second Appeal No. 1941 of 1969
Excerpt:
.....p.l.r. 664 and man mohan lal v. b. d. gupta, (1962) lxiv p.l.r. 51, referred to. - 1836.25 more in the trial court for payment to the vendee, within 15.4.1967; in case of failure the suit was directed to be dismissed. 1836.25. he, however, made good the short deposit of 25 paise on 28.10.1968 with the permission of the court on the allegation that the omission to deposit 25 paise was due to bona fide mistake. his plea was that the short deposit of 25 paise was due to a bona fide mistake on his part, but that the shortage was made good on october 28, 1968 after obtaining necessary permission from the trial court. 9. in the result, we allow the appeal with costs, set aside the orders of the high court as well as the first execution appellate court and restore the order of the original..........objection was upheld by the learned single judge; as a result he dismissed the execution second appeal filed by the appellant herein. the appellant prayed for leave to appeal under letters patent. the prayer was also rejected.6. hence this appeal by special leave.7. shri s.k. mehta, learned counsel appearing for respondent no. 1 submitted that the execution appeal filed by the appellant in the high court was incompetent as the certified copy of the impugned order of the lower appellate court was not filed alongwith the memorandum of appeal. we do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the high court at the time of the admission and was allowed to file the certified copy 'as soon as it is.....
Judgment:

Baharul Islam, J.

1. In this appeal by special leave under Article 136 of the Constitution, the appellant is the victim of Court's craze for technicalities of law at the cost of justice. This Court exercises its discretionary power under Article 136 of the Constitution to meet the ends of justice or to remove miscarriage of justice perpetrated in a case.

2. This appeal arises out of an execution proceeding. The facts material for the purpose of disposal of this appeal may be stated thus. The appellant was the plaintiff in a pre-emption suit and got a decree. Respondent No. 1 was the vendee and respondent No. 2, who was the real brother of the plaintiff-appellant, was the vendor. The suit was for pre-emption and possession in respect of some agricultural land. The trial court decreed the suit on payment of Rs. 15,500 as the price of the land and Rs. 100 as the charges on account of registration and other charges of the deed. The appellant deposited the amount as directed by the Court.

3. Respondent No. 1 filed an appeal and the Additional District Judge who heard and disposed of the appeal dismissed the appeal with the modification directing the appellant to deposit a sum of Rs. 1836.25 more in the trial court for payment to the vendee, within 15.4.1967; in case of failure the suit was directed to be dismissed. On 14.4.1967, the appellant deposited Rs. 1836.00 instead of Rs. 1836.25. He, however, made good the short deposit of 25 paise on 28.10.1968 with the permission of the Court on the allegation that the omission to deposit 25 paise was due to bona fide mistake. Respondent No. 1 filed a regular second appeal before the High Court of Punjab and Haryana. The High Court affirmed the decree of the first appellate Court but ordered the appellant to deposit a further sum of Rs. 500.00 for the improvements made to the land. The appellant was given three months' time to make the payment of the said sum of Rs. 500.00, failing which, it was directed, the suit would stand dismissed. The appellant deposited this sum too within the time limit.

4. The appellant on 28.10.1968 filed an execution case before the executing court to get possession of the suit land. The executing court issued notice to the judgment-debtor (respondent No. 1 herein). The judgment-debtor filed an application under Order XX, Rule 14(1)(b) of the CPC on the ground, inter alia, that the appellant was directed to make the payment of the sum of Rs. 1836.25 within April 15, 1967, but the appellant had deposited only a sum of Rs. 1836.00 within the due date and the amount fell short of 25 paise, and as such the execution proceedings should be struck off. The appellant filed a rejoinder to the objection petition of the judgment-debtor. His plea was that the short deposit of 25 paise was due to a bona fide mistake on his part, but that the shortage was made good on October 28, 1968 after obtaining necessary permission from the trial Court. The executing Court, by its order dated February 1, 1969, held that the short deposit of 25 paise was due to a bona fide mistake on the part of the decreeholder and over-ruled the objection of the judgment-debtor, taking the view that in the interest of justice the default on the part of the decree-holder should be condoned. The Judgment-debtor preferred an appeal in the Court of the IInd Additional District Judge, who, by his order dated October 24,1969 set aside the order of the executing court. He held that the provisions of Order 20, Rule 14(1)(b) of the CPC were mandatory, and as such the suit should be deemed to have stood dismissed. He also held that the short deposit of 25 paise was not on account of mistake and the default could not be condoned.

5. The appellant preferred a second execution appeal, being Execution Second Appeal No. 1941 of 1969 in the High Court. The appeal was however presented without a certified copy of the order of the executing Court. The appellant, however, made an application for dispensing with the filing of the certified copy. The High Court while admitting the appeal passed the following order:

Admitted. Certified copy to be filed as soon as it is available....

Sd/- R.S. Narula

25.11.69.

The appellant obtained the certified copy on June 3, 1970 and filed it in the High Court on June 10, 1970. The appellant filed an application on July 17, 1970 under Section 5 of the Limitation Act for the condonation of the delay. The second appeal came up for hearing on March 25, 1971 before a single Judge. Respondent No. 1 raised the preliminary objection that the appeal was barred by limitation. The objection was upheld by the learned single Judge; as a result he dismissed the execution second appeal filed by the appellant herein. The appellant prayed for leave to appeal under Letters Patent. The prayer was also rejected.

6. Hence this appeal by special leave.

7. Shri S.K. Mehta, learned Counsel appearing for Respondent No. 1 submitted that the execution appeal filed by the appellant in the High Court was incompetent as the certified copy of the impugned order of the lower appellate Court was not filed alongwith the memorandum of appeal. We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at the time of the admission and was allowed to file the certified copy 'as soon as it is available.' It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970-seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of the CPC, the Court has enough power to enlarge time from time to time. Section 148 provides :

Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court, may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

The power given to the Court under Section 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers under Section 148 C.P.C. and in dismissing the appeal without going to the merit of the matter.

Mr. Mehta drew our attention to the second proviso to Sub-rule (2) of Order 41, Rule (1) C.P.C. as amended by Punjab, Haryana and Chandigarh. The amendment is in the following words:

Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct.

This provision hardly helps him. It is not understandable, how the counsel for the appellant could file 'true copies', when his client had not obtained the certified copy of the order in question.

8. The next question for decision is whether the first execution appellate Court was justified in holding that the amount directed to be deposited was not deposited as it fell short by 25 paise. Order 20, Rule 14 CPC provides :

Decree in pre-emption suit-(i) Where the Court decrees a claim to pre-emption in respect of a particular scale of property and the purchase money has not been paid into Court, the decree shall- (a) specify a day on or before which the purchase money shall be so paid, and

(c) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

(2)....

Under Order 20, Rule 14 CPC, the plaintiff decree-holder, in order to get delivery of possession of the land, has to fulfil two conditions; (i) he has to deposit in Court the purchase money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court.

Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non-deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under Section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original executing Court.

9. In the result, we allow the appeal with costs, set aside the orders of the High Court as well as the first execution appellate Court and restore the order of the original executing Court.


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