Gurmel Singh vs Mukhtiar Singh and Others

C.G. Suri, J.—Regular Second Appeal Nos. 1292 and 1973 of 1969 filed by the vendee arise out of the same pre-emption suit and can, therefore, be disposed of by one judgment.

Gajjan Singh, the father of the plaintiff-respondents, sold the land in dispute to the appellant for a sum of Rs. 22,000/- on 30-5-1966. His four sons who are respondents before me filed a suit for pre emption within time and the trial Court granted a decree on 11.6 1968. The last date fixed for deposit of the balance of sale price Rs. 22,000/- was 30.6.1968. The vendee filed an appeal on 24.6 1968 and on his application, the lower appellate Court stayed appellant''s dispossession by an order dated 25.6.1968, untill the decision of the appeal. There is no clear direction in the stay order granted by the lower appellate Court that this stay of vendee''s dispossession would imply the postponement of the date of deposit of pre-emption money or would suspend the running of the time allowed to the plaintiff pre-emptors for making the deposit.

The plaintiff-pre-emptors had failed to deposit the pre-emption money within the time allowed by the trial Court. They, however, filed a cross-appeal before the lower appellate Court on 15.7.1968, that is to say, after the last date fixed for the deposit of pre-emption money had passed. The grievance of the plaintiff-appellants was that the trial Court had granted less than three weeks time for the deposit of a substantial amount of about Rs. 20,000/- and that the time granted was wholly inadequate. It was none of the plaintiff''. grounds of appeal that the stay order obtained by the vendee had suspended the running of the period fixed by the trial Court for the deposit.

The lower appellate Court disposed of the two cross-appeals by its judgment dated 23.7.1969. The appeal filed by the vendee was found to have no force and was consequently dismissed. As regards the appeal filed by the plaintiff pre-emptors, it was observed that the order granted on the vendee''s application staying his dispossession had the effect of deferring the operation of the trial Court''s order with regard to the deposit of pre-emption amount. The pre-emptors were, therefore, given further time to deposit the pre-emption money by 2.8.1969. the plaintiffs have deposited the pre-emption money within the time allowed by the lower appellate Court.

The judgment and decree of the lower appellate Court has given rise to the two second appeals filed by the vendee. One of the appeals is against the pre-emptors decree and judgment while other appeal calls in question the order granting further time to the plaintiffs to deposit the pre-emption money.

As regards the vendee''s grievance that there should not have been any extension in time for the deposit of the pre-emption amount, we have the latest pronouncement of the Hon''ble Judges of the Supreme Court in Dattaraya Tawalay Vs. Shaikh Mahboob Shaikh Ali and Another, . wherein it was observed as follows:

The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment-debtors and not a stay with regard the deposit of purchase price by the decree-holder. In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, CPC requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of 0.20, Rule 14, CPC imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are interlinked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of properties the plaintiff decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955, must "be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.

"We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court''s decree, the decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date."

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If so, we are justified in holding that the High Court intended to exercise its power to extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial Court''s decree. That is to say. this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal.

In view of this ruling of the Supreme Court, the lower appellate Court may appear to have been right when it observed that the stay order granted to the vencee, on his application, had the effect of suspending the operation of the order with regard to the deposit of the preemption money. This stay order had been obtained by the vendee before the last date fixed for the deposit of the per emption money by the plaintiff-per-emptors. The amount was then deposited within a period of about 10 days fixed by the lower appellate Court. I, therefore sec no force in the submission made by Shri Dhingra, the learned counsel for the appellant-vendee, he plea of waiver raised by the v;adee ha? been negatived by both the Courts below. It was a question of fact which cannot be allowed to be reagitated in second appeal. The vendor had purchased some other land in his own name and that of his sons a few days after this sale This would not, however, imply that the respondents had given their consent to the sals in dispute when it had taken pi ice. The question involved is not whether the sale was in act of good management on the part of the vendor or that it was beneficial to the whole family. The second submission made by Shri Dhingra is also untenable.

Shri Dhingra then argued that the vendee should have been allowed the conveyancing exepenses. No plea to that effect had been raised in any of the Courts below. According to the recitals in the sale-deed, the vendor had been advanced a sum of Rs. 1500/- before the execution of the document for meeting the conveyancing charges in seem to imply that the expenses had been borne by the vendor and not by the vendee. This was a plea based on fads and could be disposed of only after giving the parties an opportunity to produce evidence thereon. This plea cannot, therefore, be allowed to be agitated for the first time at the stage of second appeal.

Both the appeals filed by the vendee are dismissed with costs.