Dayal Singh vs Shisha Singh and another

Gokal Chand Mital, J.—Dyal Singh sought to pre-empt the sale made in favour of Shisha Singh and Amrik Singh on the ground that the vendor was related to him which relationship gave a right to sue for pre-emption. The specified relationship was established and the trial Court decreed the suit for pre-emption on 28th September, 1983 with a direction to deposit the pre-emption amount by 20.11.1983, failing which the suit for pre-emption would stand dismissed. The vendees went up in appeal and on 8lh November, 1983 got stay of dispossession, and notice of the appeal was issued to the pre-emptor. Before the appellate Court, the pre emptor filed an application for absolving him from complying with the decree for depositing the decreetal amount by 20th November, 1983. That application was dismissed by the appellate Court on 18.11.1983. Thereafter, the preemptor filed an application before the trial Court for the extension of time for depositing the decretal amount. That application was dismissed on 26.10 1983. Nevertheless, the pre emptor deposited the decretal amount on 26-11-1983. When the appeal came up for hearing before the appellate Court on 16.12.1983, in view of the two orders dated 18.11.1983 and 26.11.1983, by which the appellate Court and trial Court did not absolve the pre-empter to deposit the decretal amount nor extended the time for deposit, the vendees brought to the notice of the Court that the pre-emptor''s suit stood dismissed as the deposit was not made by 20.11.1983, and, therefore, the appeal was infructuous and be dismissed as withdrawn. The Pre-emptor was also represented on that date before the appellate Court, and the appellate Court dismissed the appeal as withdrawn since it had become infructuous.

It is thereafter that the pre-emptor took out execution of the pre-emption decree, in which the vendees raised objections. The Executing Court by order dated 15.10.1985 accepted the objections and came to the conclusion that since deposit was not made by 20.11.1983, the suit stood dismissed, and thus the execution could not be taken out This is revision by the pre-emptor.

The counsel for the pre-emptor has argued that as the appellate Court granted stay of dispossession on 8.11.1983, the entire pre-emption decree remained in abeyance and till stay continued, the pre-emptor was absolved from depositing the pre-emption amount and the deposit made during the continuance of the appeal was within time and should be taken as due compliance of the terms of pre-emption decree and on this argument, reversal of the order of the Executing Court is prayed for. He relied on Anant Ram v. Sant Singh 1979 R. L. R. 557 in which Dattaraya Tawalay Vs. Shaikh Mahboob Shaikh Ali and Another, , has been followed, in support of his contention.

The proposition of law enunciated is correct and would have been applied if the facts in the aforesaid two cases had been identical with the facts of the present case. In the Dattatraya''s case (supra) the vendee had obtained stay from the appellate Court and during the continuance of the stay, the date of deposit expired and ultimately the appeal was heard on merits and the decree of the trial Court was upheld while dismissing the appeal the trial Court did not specifically extend the date of deposit. On those facts, it was held that in view of the stay order, the entire decree was put in abeyance and the pre-emptor was also not obliged to comply with his reciprocal part of depositing the pre-emption amount and on dismissal of appeal even if the appellate Court had not granted extension of time, he was well within his right to deposit the amount within time, which was granted by the trial Court Similar were the facts in the other cited case.

However, the facts of this case are distinguishable. In the present case after the appellate Court granted the stay, the pre-emptor moved the appellate Court by an application for absolving him from depositing the amount within time granted by the trial Court. But that application was dismissed after hearing both the sides on 18-11-1983 i.e. before the time fixed by the trial Court had expired. Yet he did not deposit the said amount. Then he made an application before the trial Court for extension of time, which was dismissed on 26 11.1983 Both these orders clearly gave the impression to the vendees that the pre-emption suit stood dismissed because the deposit was not made by 20.11.1983 That is why when the appeal came up for hearing on 16.12.1983, it was stated that it had become infructuous and be dismissed. If the pre-emptor had filed revision against the order dated 18.11.1983 or 26.11.1983 by which he was not excused or granted extension regarding the deposit, the vendees would not have withdrawn their appeal as having become infructuous. It is because of the inaction of the pre-emptor not to challenge the two orders against him, that the vendees got the appeal dismissed as withdrawn because it had become infructuous. Hence on the peculiar facts of this case, no interference is called for.

Assuming for the sake of argument, that the dismissal of applications of the pre emptor by the appellate Court on 18.11.1983 and by the trial Court on 26.11 1983 do not stand in his way and the decision in Dattatraya''s case (supra) would be applicable, the deposit made on 26-11-1983 during the pendency of the appeal would be due compliance of the decree. But in that situation it would be proper exercise of jurisdiction in the interest of justice to recall the order dated 16.12.1983 by which the appeal was dismissed as withdrawn under the impression that it had become infructuous in view of the orders dated 18.11.1983 and 26.11 1983, so that the appeal is heard on merits. The moment this procedure is to be followed the appeal before the District Judge would become pending and would have to be allowed because of the latest decision of the Supreme Court in Atam Parkash v. State of Haryana (1986) 89 P. L. R. 329, wherein the provisions for seeking of pre-emption on the ground of relationship has been held to be ultra vires, which is the sole ground for pre-emption in this case, and the suit for pre-emption will have to be dismissed. In this view of the matter, ultimately there will be no relief to the pre-emptor. The learned Counsel for the pre-emptor has fairly stated that in this view of the matter it would be futile exercise to send the case back to the trial Court after recalling the order dated 16.12.1983 for decision of the appeal on merits because the same will be allowed and pre-emption suit dismissed in view of Atam Parkash''s case (supra) and the matter can be finally disposed of by this Court. The formality of sending the case back to the District Court is not being observed and the matter is set at rest here.

For the reasons recorded above, this revision is dismissed with no order as to costs.