Hakam Singh and Others vs Nachaattar Singh and Another

J.V. Gupta, J.—This petition is directed against the order of the Additional District Judge, Faridkot dated 21st August, 1979, whereby the application u/s 144 CPC for restoration of possession of the land in dispute was dismissed.

Smt. Punna Devi filed a suit for pre-emption challenging the sale dated 30th January, 1957 executed in favour of Hakam Singh, Balwant Singh and Avtar Singh vendees. The said suit was decreed by the Additional District Judge vide his judgment dated 7th May, 1938. The land at the time of sale was under mortgage for Rs. 19,150/- with one Hamam Singh. The vendees had not redeemed the mortgage, and, therefore, the learned Additional District Judge ordered that if Punna Devi (pre-emptor) deposited Rs. 6900/- on or before 7th July, 1958, she would get possession of the land, otherwise her suit would stand dismissed. Dissatisfied with the same, the vendees Hakam Singh and others filed first appeal in the High Court. During the pendency of the appeal Punna Devi sold the suit land on 7th June, 1958 to Nachhattar Singh and Ors. (Respondents). These Respondents paid Rs. 19,150/- to the mortgagee and redeemed the suit land from him. After its redemption they took its possession and started cultivating the same Ultimately the said appeal filed by the vendees in this Court was accepted on 8th May, 1968 The High Court allowed an additional sum of Rs. 700/- to be paid by the pre-emptor Smt. Punna Devi within two months, besides proportionate costs. There is no dispute that the proportionate costs were assessed at Rs. 26058 Punna Devi died on 18th June, 1968, before she could deposit the amount in question. The amount was later on deposited by the Respondents in the Court of Additional District Judge, Faridkot in two instalments i.e. Rs. 900/- were deposited on 1st July, 1968 i.e. within two months, as had been allowed by the High Court, and the balance amount of Rs. 60.58 on 19th August, 1968.

The vendees-Petitioners sought restoration of the possession of the suit land u/s 144 of the CPC on the ground that the decree of the High Court dated 8th May, 1968, whereby the amount of Rs. 700/- as Pre emption money and the costs of Rs. 250.58 were to be deposited by Smt. Punna Devi by 8th July, 1968 but she did not deposit the same and she died before the said date. According to the Petitioners the deposit male by the Respondents, if any, was not valid as they had no right to deposit the same because the sale in their favour by Smt Punna Devi had not conferred a valid title on them as Smt. Punna Devi hereself could not become the owner till she had deposited the additional amount allowed by the High Court. According to them the deposit of the said amount by the Respondents was of no consequence. It was also pleaded that the entire amount including the costs was not deposited within the given time and as such the Petitioners were entitled to the restoration of the possession.

In the reply filed on behalf of the Respondents it was pleaded that they had every right to deposit the amount in question being the successors of Smt. Punna Devi and had rightly deposited the same within the given time. They had already redeemed the mortgage and had taken actual possession of the suit land.

The learned Sub Judge came to the conclusion that the additional amount of Rs. 700/- as allowed by the High Court, was deposited within time by the Respondents. The amount of costs of Rs. 26058 paise did not form part of the pre-emption money, and, therefore, if a a sum of Rs. 60/- out of the costs of the Rs. 260.58 paise was deposited beyond the period of two months, it was of no consequence The decree of the High Court was rightly complied with by the Respondents. In view of these findings the application was dismissed.

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I do not find any merit in this petition. From the judgment of the High Court (Copy Ex A 7) it is quite evident that the costs to be paid by the pre-emptor were not a part of the pre-emption money. The direction of the High Court reads as under:-

We would accordingly allow this appeal to the extent that the preemptor Respondent Punna Devi would pay Rs. 700/- more to the vendees. This sum should be paid with in two months from today and in default of payment of this amount her suit shall stand dismissed. The vendees will get proportionate costs of this appeal.

It is, therefore, evident that the costs did not form part of the preemption money. Admittedly, the sum of Rs. 700/- was deposited within the given time i.e. on 1st July, 1968.

Faced with this situation, it was contended on behalf of the Petitioner that since the preemption money as directed by the High Court was not deposited by the preemptor Smt. Punna Devi, the suit will be deemed to have been dismissed on this ground alone. According to the learned Counsel, Nichattar Singh Respondent was not entitled to deposit the money on her behalf. In support of his contention, he referred to Hazari and Others Vs. Neki and Others, Faqir Ali Shah v. Ram Kishan (1903) 8 P.L.R. 88, Kifayat Ali and Anr. v. Ram Singh ILR VII All. 359.

I do not find any merit in this contention either. Admittedly, the preemptor Punna Devi had died on 18.6.1968 before she could deposit the amount in question The amount was deposited by the Respondent on her behalf being successor-in-interest. Thus, no fault could be found with the said deposit by the Respondent. It was held in Ala Singh v. Hazari AIR 1976 S.C. 1066, that where lands having been sold by the decree holder preemptor after perfecting his title, the vendees would be the persons claiming under the original preemptor decree-holder and if the preemptor could have made an application for execution of the decree as decree holder, the purchasers of land from the preemptor would certainly be claiming under him therefore, their application for execution would certainly be maintainable u/s 146 of the Code of Civil Procedure.

In these circumstances, I do not find any infirmity or illegality in the impugaed order as to be interfered with in the revisional jurisdiction. Consequently, the petition fails and is dismissed with costs.