Manohar Singh vs Amar Singh

J. V. Gupta, J.

Brief facts giving rise to this petition are that two pre emption suits were filed in respect of sale of agricultural land, effected by one Raghbir Singh, one suit was of Manohar Singh, petitioner, and the other was of Jagir Singh. Both the rival preemptors were impleaded as parties, and both the suits were decided on 23rd December, 1972. The disposal of the two suits was by way of a compromise between the parties. For convenience, the order of the trial Court disposing of the two suits reads thus:

"In these suits the parties have compromised and their statements have been recorded separately. In view of the statements of the parties and their counsel, the suit of Manohar Singh plaintiff is decreed to the extent of 16 Kanals 18 Marlas out of the suit land against the defendant subject to payment of Rs. 8101.67 paise by the plaintiff Manohar Singh to the defendant vendees on or before 18.4.1973, less the amount of Zarepanjam, if deposited, failing which the suit of the said plaintiff shall stand dismissed. If the said plaintiff Manohar Singh fails to deposit the said amount within time, then Jagir Singh rival preemptor shall be entitled for possession of 6 K 0 M Rect. No. 24 Killa No. 22 out of the suit land by way of preemption subject to payment of Rs. 2902.80 paise on or before 15.5.73 less the amount of Zarepanjam, if already deposited, and failing which his suit shall also stand dismissed''''.

The decreeholder, Manohar Singh, in fact deposited Rs. 8101.67 including the 1/5th preemption money deposited earlier and sought execution of the decree. In execution of the decree, possession was delivered to him. Later on, an application dated 18th January, 1974, was filed on behalf of the judgment debtors for restitution of the possession, alleging that the sale price deposited by the decreeholder was less by Re. 1/, and, therefore, the suit filed by Manohar Singh, decreeholder, will stand dismissed. This application was contested on behalf of the decreeholder. During the pendency of this application, decreeholder, Manohar Singh also moved application, dated 15th March, 1975, for permission to deposit Re. 1/ more which was found less. However, no orders were passed on that application. Ultimately, the executing Court allowed the application for restitution filed by the vendeejudgment debtors as it was held that the decreeholder has failed to comply with the terms of the decree and the amount deposited by him was less by Re. 1/. In appeal, the learned District Judge maintained the said order of the executing Court. Dissatisfied with the same, the decreeholder, Manohar Singh, has filed this petition in this Court.

At the time of motion hearing, dispossession of the decreeholder was stayed, and the said order was later on affirmed in the presence of the learned counsel for the parties, vide order dated 25th May, 1978. Thus the decreeholderpetitioner has been in possession of the suit land throughout.

The learned counsel for the petitioner contended that the sale price was less by Re. 1/ under bona fide mistake. In any case, no objection was raised on behalf of the judgmentdebtor earlier at the time of the execution of the decree, and the time could be extended later on for depositing the said amount of one rupee. In support of his contention, he referred to Jagdhayan v. Babu Ram and others, AIR 1983 S.C. 57, wherein it was held that where the decreeholder in a preemption suit, deposited the entire amount of purchase money together with the costs decreed against him less 25 paise within the time fixed by the Court and 25 paise too were deposited, but beyond time the finding of first executing appellate Court that the non deposit could not be due to any bona fide mistake, was absolutely untenable for the reason that while the decreeholder had deposited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. It was further held that it was preeminently a case in which the first executing appellate Court ought to have exercised its discretionary powers under Section 148 and accepted the delayed deposit of 25 paise, as was done by the original executing Court.

After hearing the learned counsel for the parties, I am of the considered view that the approach of the Courts below holding that the plaintiff''s suit was liable to be dismissed because he has deposited the sale price by one rupee less, was wholly wrong, misconceived and illegal. The observations of the Supreme Court in the above said case are fully applicable to the present case. The mistake on the part of the decreeholder appears to be on account of the fact that earlier while depositing 1/5th preemption money, he was required to deposit Rs. 1933.60 P. Under that impression, while depositing the balance amount, he thought that he had earlier deposited Rs. 1934/ and thus this mistake has occurred. Under the circumstances, the mistake seems to be a bona fide one and thus it was a fit case where the time could be extended after notice to the judgmentdebtor. The Courts below mainly relied upon Mehr Din v. Brij Lal and others, AIR 1923 Lahore 250, but in view of the Supreme Court decision in Jagdhayan''s case (supra) this is no more a good law. Apart from that as observed earlier, throughout this period, the decreeholder has remained in occupation of the suit land and on that account also, he is allowed to deposit the less amount by one rupee by 15th June, 1985.

In this view of the matter, the petition succeeds, the impugned orders are set aside, and the application for restitution is dismissed, with no order as to costs.