Het Ram vs Rajinder Parshad

J.V. Gupta, J.—This judgment will also dispose of Civil Revision Petition No. 1961 of 1979, as the question involved are common in both the cases.

Both the Petitioners Het Ram and Hari Singh being tenants on the suit land obtained decrees for possession by pre-emption, dated September 26, 1974, in two separate suits. In the case of Het Ram, the pre-emption suit was decreed on payment of Rs. 2,101/- whereas the pre-emption suit of Hari Singh was decreed on payment of Rs. 3,56750 In the former suit, Rs 380/ were deposited as the one-fifth pre-emption money whereas in the latter suit Rs. 642/- were deposited as zare panjim. The pre-emption amounts were to be deposited by the decree holders on or before October 31, 1974, in both the cases. On October 3, 1974, a sum of Rs. 1,631/- was deposited in the case of Het Ram whereas a sum of Rs. 2923.00 was deposited in the case of Hari Singh. There is a report in both the cases dated October 8, 1974 made by the Ahlmad of the Court that the amounts which were to be deposited by October 31, 1974, had been deposited and that the execution proceedings were within two years. On this report, the Court passed the orders the same day, in both the cases, as follows:-

Warrant of possession be issued for 15-11-74. Execution be registered

On November 26, 1974, the execution applications were consigned to the record room as it was reported that the decree holders had got possession of the suit lands. It was on March 20, 1976, that the judgment-debtor filed two separate applications for the restitution of possession on the allegations that the amounts deposited by the decree-holders were short by Rs. 90/-in the former case and Rs 1.70 in the latter case and, therefore, there being no compliance of the decree, the Plaintiff''s suit were liable to be dismissed. The said appplications were resisted by the decree-holders, on the grounds that they bad deposited short pre-emption amounts on account of the mistake of the officials of the Court which granted the decrees for possession by preemption in their favour. On the pleadings of the parties, the following issues were framed:-

Whether the decree-holder complied with the decree dated 26.9.74 by my learned predecessor? If not, its effect?

Whether the application is maintainable?

Relief

Both the Courts below found that the decree-holders failed to comply with the pre-emption decree dated September 26, 1974, The finding of the trial Court under issue No. 2 that the application was maintainable, was not contested in appeal. As a result, the Plaintiffs'' suits were dismissed and it was directed that the possession be restored to Defendant judgment debtor.

On May 1, 1987, the records of the original suit files were sent for in order to do complete justice between the parties. In the said records, the reports of the Ahlmad dated October 8, 1974, are therein. In the execution applications dated October 3, 1974, the decree-holders have stated that the suits had been decreed on payment of Rs. 2,011/-and Rs 3.56580, respectively. Thus, after deducting the zare panjim the balance amounts were deposited on which the reports dated October 8, 1974, were made as noticed in the earlier part of this judgment. According to the learned appellate Court the decree-holders did not bring the applications made by them to Court which passed the decrees seeking the deposit of the pre-emption money so that the executing Court as well as that Court could be in a position to ascertain and pinpoint that the officials of the Court concerned had or had not made any mistake in this regard.

The learned Counsel for the Petitioners contended that the amounts were righty deposited by the decree holders and even the Ahlmad of the Court had made the report dated October 8, 1974, in that behalf. On that account, the warrants of possession were issued and the decree-holder got the possession as well. According to the learned Counsel, it appears that there was some interpolation in the report of the Ahlmad and that being so, the decretal amounts were found short by Rs. 90/- in the former suit and Rs. 1.70 in the latter suit. According to the learned Counsel, if this mistake would have been pointed out at that time, there was time with the decree-holders to deposit that alleged short amounts also within time. As no such mistake was pointed out by the Ahlmad of the Court, the decree-holders could not be allowed to suffer on that account. Moreover, there could not be any question of mala fides for not depositing the requisite amounts earlier; particularly when the decree holders could deposit the amounts well in time, the question of deposit of Rs. 90/- and 1 70, respectively was not very material. In support of the contention, the learned Counsel relied upon Sher Singh v. Puran ( 1985 88 P. L. R. 438., Manohar Singh v. Amar Singh 1985 P. L. J. 364., and Smt. Jodhayan Vs. Babu Ram and Others, .

On the other hand, the learned Counsel for the Respondent submitted that it has been concurrently found by both the Courts below that the decree-holders had deposited the amounts as pointed out and, this being a finding of fact, could not be interfered within revisional jurisdiction. According to the learned Counsel, there must be strict compliance of the decree in a pre-emption suit and since the Plaintiffs failed to comply with the said decrees within the time allowed, the orders passed by the Courts below could not be interfered with in the revisionai jurisdiction. In support of the contentions, the learned Counsel relied upon Panni Lal v. Daya Ram (1985) 88 P. L. R. 157., Habeeb Mohammed v. State of Hyderabad A. I. R. 1954 S. C. 50., Sulleh Singh v. Sohan Lal 1975 P. L. J. 400., and Mt. Ghammo v. Chahat 1970 P. L. J. 176.

After hearing the learned Counsel for the parties and going through the relevant record and the case law cited at the bar, I am of the considered opinion that the Petitioners could not be allowed to suffer on account of mistake of the Court officials.

From the two reports, dated October 8, 1974, made by the Ahlmad of the Court, it is quite evident that as regards the decrial amounts there are overwriting. It appears that when the decree-holders deposited the balance pre-emption monies the judgments of the trial Court may not be there. Later on, when the said judgment were made available to the Ahlmad, he made the necessary corrections in his reports dated October, 8, 1974. Moreover, when the decree-holders got possession in execution of the decrees, no such objection was ever take by the judgment debtor. The applications for restoration were filed more than one year after the possession were delivered. Under the circumstances, the decree-holders could not be allowed to suffer for the fault of the Court officials. If it had been reported by the Ahlmad on October 8, 1974, that the amounts were short then there was still time with the Petitioners to deposit the amounts by October 30, 1974. Since no such report was made; rather orders for warrants of possession were issued, there was no reason for the decree holders to know that the amounts deposited by them were short in any manner. No mala fides could be attributed to the Petitioners for not depositing the short amount because the amount which was not deposited was not only Us. 90/- and 1.70 respectively. Thus, on the facts and circumstances of the case, the finding of the Courts below that there is nothing on the record to show that the decree-holders ever sought the assistance of the Court concerned for depositing the amounts, was against the record. As observed earlier, the original files in which the applications dated October 3, 1974, were there, were never summoned by the Courts below and that is why the said finding was arrived at. In Sher Singh''s case (supra) it was held by this Court that when the time for deposit has expired and the short deposit cannot be styled as either for lack of bona fides or for want of funds the executing Court ought to exercise discretionary power and delayed deposit should be accepted. The rulings relied upon by the learned Counsel for the Respondent have no applicability to the facts of the present case.

Consequently, both the revisions succeed and are allowed. The impugned orders are set aside and the applications for restoration are dismissed with no orders as to costs. However, as the decree-holders had failed to deposit Rs. 90/- and 1 70 respectively, which were to be deposited by October 31, 1974, they are allowed to deposit the said amounts within two months from today with the executing Court, failing which the revision petitions shall stand dismissed.