Baru and Others vs Jeet Singh alias Hazara Singh

Surya Kant, J.—This civil revision has been directed against an order dated November 14, 1983 passed by the Sub Judge, IInd Class, Kaithal, whereby he disposed of two applications, one moved by the petitioners (Baru and others who are the defendants/judgment-debtors) and the other one moved by the respondent (Jeet Singh, who is plaintiff/Decree-holder).

The respondent filed a suit for possession by way of pre-emption which was decreed by the trial Court vide judgment and decree dated March 7, 1983 and he was directed to deposit the pre-emption amount of Rs. 23,902/- less 1/5th, the already deposited amount, on or before May 15, 1983. Aggrieved by the aforementioned judgment and decree, an appeal was filed by the petitioners, namely, the defendants before the learned trial Court. It is not disputed that the Appellate Court vide order dated March 31, 1983 stayed execution of the pre-emption decree besides at the same time observing that "if necessary, time will be given to him (the plaintiff-respondent) for depositing the pre-emption money at the time of final disposal of the appeal." The appeal filed by the petitioners was, however, dismissed vide judgment and decree dated August 29, 1983 and as stated by the learned counsel for the parties the same has already attained finality.

It is also not in dispute that the respondent-decree holder while depositing the amount of Rs. 18,940/- on May 12, 1983, namely, before the expiry of the time limits given to him by the Trial Court for depositing the pre-emption amount, also deposited the compensation for the standing crops in October 4, 1983. After the dismissal of the appeal and having realised that in terms of the pre-emption decree passed in his favour, the petitioner was required to deposit Rs. 19,702/- but he had deposited Rs. 18,960/- only and, therefore, he moved an application before the trial Court for grant of extension of time to deposit the balance amount of Rs. 742/-. A counter application was moved by the petitioners with a prayer that the warrant of possession issued against them may be recalled as the pre-emption decree was conditional and the plaintiff-respondent has failed to comply with the said condition and as such his suit was deemed to have been dismissed. Both the aforementioned applications were heard together and have been disposed of by the learned Sub Judge IInd Class, Kaithal vide his impugned order dated November 14, 1983 vide which he dismissed the application moved by the petitioners whereas the one moved by the respondent for permission to deposit the balance amount of Rs. 742/- even beyond the time given to him to do so in the original decree dated March 7, 1983, was accepted, however, with liberty to the defendants-judgment debtors to receive the same. Aggrieved by this order, the present revision petition has been filed by the defendants/judgment-debtors.

It may not be out of place to mention here that while issuing notice on November 24, 1983, this Court also issued notice regarding stay. However, having brought to the notice of this Court that the respondent had already taken possession of the land in dispute in execution of the decree in his favour, the application seeking stay of dispossession was dismissed on December 15, 1983.

I have heard Shri I.K. Mehta, learned Senior counsel assisted by Shri Balsher Singh, for the petitioners and Shri Yogesh Jassal, learned counsel for the respondent and have perused the record.

On the above mentioned undisputed facts, it is clear that in terms of the judgment and decree passed by the learned trial Court, the respondent was required to deposit the pre-emption amount on or before May 15, 1983. Despite the fact that the execution of the said decree was stayed by the learned first Appellate Court vide order dated March 31, 1983, yet it protected the right of the plaintiff-respondent qua deposit of the preemption money by observing that "if necessary, time will be given to him (Plaintiff-decree holder) for depositing the pre-emption money at the time of the final disposal of the appeal". The respondent, however, deposited an amount of Rs. 18,960/- on May 12, 1983 i.e. even before the expiry of the cut off date, as against the total payable pre-emption amount of Rs. 19,702/-. Though it is proved that while dismissing the appeal of the defendant-judgment debtors on August 29, 1983, the first Appellate Court did not expressly grant further time to the respondent to deposit the balance pre-emption amount but the fact remains that by way of an interim measure, the right of the respondent to do so was duly protected. The doctrine "Actus Curiae neminem gravabit" (an act of the Court prejudice none) is well settled principle of law. Since the execution of the decree was stayed by the first Appellate Court thereby rendering the same in-operative, the compliance of the cut off date for depositing the pre-emption amount, namely, on or before May 15, 1983, could not have been insisted upon. In the light of this fact, when no prejudice appears to have been caused to the defendant/Judgment debtors, the acceptance of the request of the respondent in extending the time to deposit the balance amount of Rs. 742/- (which is stated to have been deposited on November 7, 1983) by the Executing Court, does not cause any material irregularity. It is not and cannot be the case of the petitioner that the learned Executing Court lacked jurisdiction and/ or competence to extent the time. Such a power is inherent in the Court in terms of Section 148 read with Section 151 of the Code of Civil Procedure. In my view the impugned order passed by the learned trial Court falls within the four corners of the principles of law laid down by this Court in Anant Ram (Ant Ram) v. Sant Singh and Ors. 1979 P.L.J. 520 and Bhim Singh v. Smt. Mamo and Anr. 2001(2) P.L.J. 446.

Learned counsel for the petitioners, however, strenuously argued that since the original decree passed by the trial Court was a conditional one and the respondent failed to deposit the entire pre-emption amount on or before May 15, 1983, his suit is deemed to have been dismissed. In this regard reliance has been placed upon the judgment of the Hon''ble Supreme Court in the case of Sulleh Singh and Others Vs. Sohan Lal and Another, .

In my view, the aforementioned judgment is totally distinguishable from the facts of the present case, inasmuch as in that case though the time was fixed by the trial Court to deposit the pre-emption amount, the lower Appellate Court did not grant stay against the said judgment and decree and thus the same remained operative. It is in this backdrop that their Lordships have held that the time fixed by the learned trial Court to deposit the pre-emption amount was mandatory in nature under the provisions contained in Order 20 Rule 14 of the Code of Civil Procedure. As pointed out earlier, in the present case, the execution of the judgment and decree passed by the learned trial Court was stayed by the first Appellate Court besides that "if necessary, time will be granted to him (plaintiff-decree holder) for depositing the pre-emption money at the time of final disposal of the appeal".

For the reasons stated above, I find no merit in this revision petition and the same is hereby dismissed. No costs.