Ishwar Singh vs Nihal Singh and Others

Rajendra Nath Mittal, J.—The order will dispose of C.R. Nos. 3286 and 3287 of 1985 which contain common questions of law and fact. The facts in the judgment are being given from C. R No 3286 of 1985.

Briefly, the facts are that Inder Singh was the owner of the property in dispute He sold it to Partap Singh, Respondent No. 2 vide sale deed dated 6.1 1980 for a consideration of Rs. 46,000/- Ishwar Singh, Petitioner instituted a suit for pre-emption on the ground that he was the son of the vendor. Another suit for pre-emption was filed by Nihal Singh, Respondent No. 1 on the ground that he was the brother of the vendor. Both the suits were consolidated and decreed in the alternative. Relevant part of the decree passed by the Court is as follows:

It is ordered that in view of my findings in the judgment of even date, I hereby decree the suit of Ishwar Singh Plaintiff for possession by way of pre-emption of agricultural land measuring 3-1/2 Killas and fully described above on payment by Plaintiff Ishwar Singh to the vendee Defendant a sum of Rs. 52447/- less 1/5th pre emption money already deposited by him on or before 30 10 1932 failing which his suit shall stand dismissed. I further order that in the event of the dismissal of the suit of Ishwar Singh, the suit shall stand decreed in favour of rival pre-emptor Nihal Singh on payment by him a sum of Rs 5247/- (sic) to the vendee Defendant less 1/5th pre-emption money already deposited by him an or before 30. 11.1982 failing which his suit that also stand dismissed.

Nihal Singh, decree-holder filed an application for execution stating that Ishwar Singh, Petitioner had net complied with the condition of the decree as he did not pay the preemption money and did not get possession of the land from the judgment debtor. It is stated that he i e decree holder had deposited the pre emption money in accordance with the order of the Court and, therefore, he was entitled to execute the decree.

Ishwar Singh, Petitioner filed objection petition stating that he had paid the pre emption money to the judgment-bebtor and took possession of the land by executing the decree Consequently, Nihal Singh could not execute the decree. The allegations in the objection-petition were controverted by Nihal Singh. The Executing Court held that the Petitioner did not pay the pre emption money to the judgment-debtor and that he did not take possession of the land in pursuance of the decree. Consequently it dismissed the objections. The Petitioner has come up in revision to this Court.

It is contended by Mr Sarin that the Petitioner had paid the pre-emption money to the judgment-debtor and had obtained the possession through the Court. Now, Nihai Singh Respondent had no right to execute the decree On the other hand, Mr. R. S Mittal, learned Counsel for Respondent No. 1, has vehemently argued that the Court, after appreciating the evidence returned a finding of fact that the Petitioner did not pay the pre-emption money to the judgment-debtor and that he did not take possession of the land. The finding cannot be up set in a revis on petition u/s 115 of the CPC Code, even though it is erroneous In support of his contention he places reliance on D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others,

I have duly cousisdered the arguments of the learned Counsel. From a perusal of the decree it is clear that the suit for pre emption was decreed in fovour of the Petitioner on payment of certain amount. After he had paid the amount, the suit of Respondent No. 1 stood dismissed. The Petitioner and the judgment debtor were concerned parties in the suit filed by the former. The Petitioner stated that he had paid the pre-emption money and the vendee admitted in the Court that he had received that from him. Thereafter, the Court issued warrants of possession vide order dated 20 9 1982, Fx. O5 in pursuance of which the Petitioner was delivered possession of the land on 9 11 1982 (see Ex O 2 report of Girdawar Kanungo) On 15 1 1983, the Court passed an order, Ex. O 4 that the warrant of possession had been received back with a report that the possession had been delivered to decree holder and consequently, the execution application was dismissed as satisfied From the above-said order, it is evident that the Court executed the decree in favour of the Petitioner and delivered possession of the land to him. Once the decree in favour of the Petitioner stood satisfied, Respondent No 1. could not deposit the amount and execute the decree, which was passed in his favour in the alternative The act of the Court to investigate the matter afresh after having executed the decree, in my view, is without jurisdiction Consequently, I am of the opinion, that it is not entitled to execute the decree in favour of Respondent No 1.

Mr. Mittal has referred to M/s D L F. Housing and Construction Co (P) Ltd''s case (supra) wherein it was observed that while exercising the jurisdiction u/s 115, it is not competent to the High Court to correct errors of fact, however, gross or even errors of law unless the said errors have relation 1o the jurisdiction of the Court to try the dispute itself The words "illegally" end "with material irregularity" as used in Cl (c) do not cover either errors of fact or of law; they do net refer to the decision arrived at but merely to the manner in which it is reached. It is further observed that the errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of Saw, after the prescribed formalities have been complied with There is no dispute about the proposition enunciated by their lordships of the Supreme Court. But in the present case there is an illegality in the exercise of the jurisdiction at once the Court had executed the decree in favour of the Petitioner its power to execute the same afresh come to an end. Mr. Mittl), in my view, cannot derive any benefit from the above observations.

The facts of C. R. No. 3287 of 1985 are similar and no other arguments were raised therein.

For the aforesaid reasons, I accept the revision petitions, set aside the orders of the Executing Court and dismiss the execution applications of Respondent No. 1 with no order as to costs.