Madanlal vs Khushi Ram and Another

I.S. Israni, J.—This is a civil revision petition against the order of learned Civil Judge, Alwar dated 3-5-1982, by which the application of the petitioner under Order 47 and Section 151, C.P.C. was dismissed (Civil Misc. Application No. 79/80).

A suit for pre-emption was instituted in the trial Court, which was partially decreed. The suit was decreed in respect of the portion which was valued by the trial Court at Rs. 4000/- and the claim of the petitioner regarding the portion valued at Rs. 1800/-was rejected However, the learned Civil Judge omitted to mention the date up to which the aforesaid amount as per the provisions of Section 13 of the Rajasthan Pre-emption Act, 1966''! and Order 20 Rule 14, C.P.C. was to be deposited. Therefore, an application for rectification in the decree was moved on 20-2-80. This application of the petitioner was rejected the trial Court on the ground that since appeal has been filed, therefore, the application could not be entertained.

Shri R.K. Mathur, learned counsel for the petitioner has contended that it was the duty of the trial Court to have mentioned the date by which the amount had to be deposited and it had ample powers under Sections 151/152, C.P.C. as also under Order 47 to rectify this mistake, so that the petitioner could deposit the amount as decided by the court.

Learned counsel Shri B.K. Pathak, appearing for the non-petitioners contended that now since both the parties have filed appeals against the order of trial Court, which are pending in the court of Addl. District Judge, Kishangarhbas, therefore, the matter may be left for decision to the first appellate court. Reliance has been placed on Gian Chand Vs. Joginder Singh and Another, in which a similar question arose. This was a case in which after a pre-emption decree was awarded, an appeal was filed and the decree of the trial court was stayed by the first appellate court and therefore, the amount was not deposited by the decree-holder. However, the appellate court while deciding the appeal omitted to fix a date for depositing the amount. Therefore, an application was filed u/s 152, C.P.C. and it was held by this court that since the appeal has been dismissed without fixing time for depositing of pre-emption money, which the appellate court was bound 10 fix, this omission could be corrected under the provisions of Section 152, C.P.C. Therefore, the date for deposit of the pre-emption amount was fixed in the revision petition itself. Reliance has also been placed on Dattaraya Tawalay Vs. Shaikh Mahboob Shaikh Ali and Another, and Partap Kaur and Another Vs. Sardara Singh and Another, which are also to the same effect.

I am therefore, clearly of the view that the learned trial court was wrong in not exercising its undoubted jurisdiction u/s 152, C.P.C. and that would have set at rest this controversy. In this case since both the appeals filed are still pending in the court of learned Additional District Judge, Kishangarh-bas, it is directed that in the event the appeal led by respondent Khusi Ram s/o Jai Karan ahajan who was originally defendant in the al court is dismissed, the learned first appellate court shall fix a date for depositing the pre-emption amount by the petitioner Madanlal and necessary rectification shall also be made in the decree awarded by the trial court in this respect. No controversy now remains so far as this point is concerned for decision by the first appellate court.

The revision petition is allowed as indicated above with no order as to costs.