JOGDHAYAN - ¥. “,BABU‘RAM AND OTHERS : November 23, 1982
“4D. A. Dpsal, BAHARUL ISLAM AND V. BALAKRIsHNA ERaDI, JJ.)
‘Gonstitution of Tadia, 1950, Article 136--Supreme “Court exercises its discretionary power -under- Article: 136-of the’ Constitution. to meet the ends of justice? or to rémove ‘miscarriage. of justice perpetrated: in a:case—Presemption suit-—Judgment—Decree- holder by-bona. fide «mistake fails. to- deposit : 0:25"Paise, but inches good later with the. permission of ‘the. Court—Whether.-in- view of the provisions, of Order XX, Rule 14(1)(b) of the Civil Procedure Code, theisuit should
-be'deeméd to have been dismissed and consequently execution of the decree .is impermissible—Whether the default could not be condoned. —
Appellant—plaintiff-in the: pre-emption suit agairist ‘the*respondent 1 (vetidee) and*Respondent 2(Vendor) got.a decree, - As per the’Trial “Court decree the appellant deposited a.sum-of Rs, 15}500'as:the price ‘of the land: and‘Rs7 100 as, the charges on account. of registration.and other expenses. of.-the=deéd, Respondent 1 (vendee) filed. an appeal and the Additional .District. Judge dismissed the appeal with “the modification directing the appellant to deposit.a sum of Rs. 1836-25 more in the -trial Court’'for payment to the veidee, within ‘15.4.1967 ; in case of failure the suit was directed to be dismissed. On 14.4.1967, the appellant deposited Rs, 1836-06 instead of Rs: 1836-25. He; however, made good the: -shortn deposit. of 25 ‘Paise2on 28310;1968 swith the.:permission' Of the Court saverring that the omission . to tdeposit : 25 - paise? wast due -to ‘bona fide mistake. The vendee filed a..regular second: appeal and the High Gourtiwhile dismissing the appeal directed the appellant to deposit. within .three,.months* time, a further sum of Rs. 500 for the improvements made- to the land. .The appéllant deposited this sum within the time limit.
In the execution case filed' before the executing court, the respondent vendee filed an application under .order XX Rule 14(1){b), raising an objection to the maintainability of the Execution ‘Petition on. the plea that short deposit of 25 Paise within 15.4.1967 amounted.to deemed dismissal of the suit:itself and that the default could not be condoned. ‘The -executing court by its order dt.
1.2.1969 overruled the objections. The Judgment. debtor’s appeal before the Il”
Additional District Judge, was accepted holding that the provisions of order XX Rule 14(1)(6) C.P.C. were mandatory, the short deposit was not due to bona fide mistake and the default could not be condoned. The appellant preferred a second execution appeal before the High Court, without a certified copy of the order of the executing Court, but with an application for exemption from filing the certified copy. The appellant was directed on 25,11.1969 to file the es t i oe socDHAYAN y, BABURAM (Baharul Islam, J. si 845 certified copy “‘as soon as it is available”, The appellant obtained a certified copy on June 3, 1970 and filed it in the High Court on July 17, 1970. The appellant filed’ - an application-on July, 17, 1970 under section 5 of the Limitation Act for condonation of delay. The preliminary objection raised by the Respondent ' No, 1 that the appeal was barred by limitation, was accepted by the learned ~ ‘Single Judge and the Execution second appeal thus stood dismissed. “Hence © the appeal after mbisining special leave of the Court. . .
Stare ng appeal, the Court :
HELD: 1, The High Court cimailtieal an error in not adverting | to and not exercising its powers under Section 148 of the Code. of Civil Procedure’
and in dismissing the appeal without going into the merit of the matter. Under sectionl48 C.P.C., the Court has enough power to enlarge time from time to time. ~
The power given to the Court under section 148, is discretionary and is given for
_ the purpose of senate the ends of j Justice in case of necessity.
tf , . ; (848- CD, aes 850-B]
is Under Order XX, rule 14C.P.C, the plaintiff decree fiolder, i in order to get delivery of possession of the land, has to fulfill two conditions ; (i) he has
" to deposit in the court the purchase money. together with the cost, if any decreed * against bim, and (ii) the - neni a must be made on or before the date fixed by the s ; Court.- (849°EF] ot : : eo ’
- : Re - i « i . « S & ¥ Pe
‘ipeevees3 in view ee the deposit: of 25 Paise having been made, under the ~ ‘orders of the court after the acceptance of the bona fide mistake, the finding of the first executing appellate court that the non-deposit could not be due to
“any bona fide mistake is absolutely untenable for the reason. that while the appellant has 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. Indeed, the appellant is the victim of Court’s Craze for technicalities of law at the cost of src ocaes : * me —_ . - (845-H, 849-G-H, 850-A]
crv. APPELLATE Junispicrion “Civil Appeal No. 94 of 1972. .
- “Apes by Special leave from ‘the Tédgmedt and Order dated :the 23rd July, 1971 of the Punjab ‘and Haryana High § Court i in Execution Second id Appeal No. at of 1969. Se
Uma Datta and Krishna Datt for the ‘Appellant: : ;
S. K. Mehta, P, >. Puri and aM. K. Dua for the Respondent,
- The Judgment of the Court v was delivered by ..
BAHARUL ISLAM, J in this: appeal by seeictat leave under : “ Article 136 of the Constitution, the appellant is the victim of Court's - craze - for technicalities of | law at the cost of j Justice. This Court
846 "SUPREME COURT REPORTS {1983} 1 s.c.k.
exercises its discretionary power under Article 136 of the Constitution to meet the ends of justice or to remove miscarriage of justice perpetrated in a case. ,
2. This appeal arises out of an execution proceeding. The facts material for the purpose of disposal of this appeal may be ‘stated thus. The appellant was the plaintiff in a pre-emption suit and got a decree. Respondent No, | was the vendee and respondent
No. 2, who was the real brother of the plaintiff-appellant, was then © vendor, The suit was for pre-emption and possession in respect of: some agricultural land. The trial court decreed the suit on payment of Rs. 15,500 as the price of the land and Rs. 100 as the charges on account of registration and other charges of the deed. The appellant deposited the amount as directed by the Court.-
3 Respondent No. 1 filed an appeal and the Additional District Judge who heard and disposed of the appeal dismissed the appeal with the modification directing the appellant to deposit a sum of Rs. 1836.25 more in the trial court for payment to the vendee, within 15.4.1967 ; in case of failure the suit was directed to be dismissed. On .14.4.1967, the appellant deposited Rs. 1836.00 instead of Rs. 1836.25. He, however, made good the short deposit of 25 paise on 28.10.1968 with the permission of the Court on the allegation that the omission to deposit 25 paise was due to bona fide mistake. Respondent No. 1 filed a regular second appeal before the High Court of Punjab and Haryana. The High Court affirmed the.decree of the first appellate Court but ordered the appellant to .
‘deposit a further sum of Rs. 500,00 for the improvements made to the land. The appellant was given three months’ time to make the payment of the said sum of Rs. 500.00, failing which, it was directed, the ‘suit would stand dismissed. The appellant deposited this sum too within the time limit, _
4. The appellant on 28.10.1968 filed an execution case before the executing court to get possession of the suit land. The executing court issued notice to the judgment-debtor (respondent No. 1 herein). The judgment-debtor filed an application under Order XX, rule 14(1)(b) of the Code of Civil Procedure on the ground, inter alia, that the appellant was directed to make the payment of the sum of Rs. 1836.25 within April.15, 1967, but the appellant had deposited only a sum of Rs. 1836.00 within the due date and the amount fell short of 25 paise, and as such the execution proceédings
JOGDHAYAN v. BABURAM (Baharul Islam, J.) 847 should be struck off. The appellant filed a rejoinder to the objection
_ petition of the judgment-debtor. His plea was that the short deposit - of 25 paise was due to a bona fide mistake on his part, but that the shortage was made good on October 28, 1968 after obtaining necessary permission from the trial Court. The executing Court, by its order dated February 1, 1969, held that the short deposit of . 25 paise was due to a bona fide mistake on the part of the decree-. holder and over-ruled the objection of the judgment-debtor, taking .
the view that in the interest of justice ‘the default on the part of the decree-holder should be condoned. The Judgment-debtor preferred an appeal in the Court of the IInd. Additional District Judge, who, by his order dated October 24, 1969 set aside the order of the execut- ‘ing court. He held: that the provisions of Order 20, rule 14(1)(b) of the Code of Civil Procedure were mandatory, and as such the suit should be deemed to have stood dismissed. He also held that the short deposit of 25 paise was not on account of mistake and the default could not be condoned.
5. The appellant preferred a second execution appeal, being |
Execution Second Appeal No. 1941 of 1969 in the High Court. The appeal was however presented without a certified copy of the order of the executing Court. ‘The appellant;, however, made an applica- tion for dispensing with the filing of the certified copy. The High Court while admitting the appeal passed the following order :
“Admitted, Certified copy to be filed as soon as it i available... As eeeauessenegtenansasvesenasenages sie tsseseseraeed is
Sd/- R.S. Narula ’ 25.11.69".
_ The appellant obtained the certified copy .on June 3, 1970 and filed itin the High Court on June 10, 1970. The appellant filed an application on July 17, 1970 under section 5 of the-Limitation Act for the condonation of the delay. The second appeal came up for.
hearing on March 25, 1971 before a single Judge. Respondent No. 1 raised the priliminary objection that the appeal was barred by limitation. The objection was upheld by the learned single Judge ; “asa result he dismissed the execution second appeal filed by the
‘appellant herein. The appellant prayed for-leave to appeal under Letters Patent. ‘The prayer was.also rejected. *
‘
6.. Hence.this appeal by special leave.
Dd
Gi
Ht
<—
848 SUPREMB COURT REPORTS [1983] 1 sek.
7. Shri S.K. Mehta, learned counsel appearing for Respondent
No. 1 submitted that the execution appeal filed by the appellant in
, the High Court was incompetent as the certified copy of: the _ impugned order of the lower appellate Court was not filed alongwith the rhemorandum-of appeal. Wedo not find any substance in the submission’for the reason, as we have already stated above, that the appellant was granted time by the High Court at the time of-the.
copy was not filed at all, nor it is his submission that the Court had no power to ‘grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970° and filed in court on 10. 6.1970-—seven - days after the. copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under oa
“admission and was allowed to file the certified copy ‘‘as soon as it is available.” ‘It is not the contention ‘of the respondent. that the.
Section‘148’of ‘the Code” of Civil Procedure, the Court has enough power to enlarge time from time to time. Section’ 148 provides’:
t “Where any period is fixed -or granted by the Court a. forithes doing-of any: act- prescribed ‘or allowed by this - 1 Code, the:Court, may, in' its discretion, from time to time,’ ‘enlarge. such period, even though the period ortsianlly: ‘fixed aie may have expired.” t The power.given to the Court under Section 148 is discretionary and is-given for the purpose of securing the ends of justice, in case
‘of necessity. In our opinion, the High Court committed ‘an error in not adverting, to, and not exercising its powers under Section 148
C.P.Ciand in “dismissing the appeal without going to the merit of the matter! -
Mr. :Méhta drew our attention to the second Proviso to sub?
rule: (2)vof Order 41,- rule’ (1) C.P.C. as amended’ by, Punjab,
Haryana. -and Chandigarh: The amendment , is in the following wanes _ “Provided further that the Court may permit the | appeal, to’ be filed with true copies duly authenticated by” an advocate as ‘correct. 2
* This provision hardly’ digi him. It is not understandable, how the counsel for the appellant could file ‘true copies’, when his client had not obtained the cértified ‘copy: of the order in’ question.
" JOGDHAYAN ¥. BABURAM (Baharul Islam, J): 849 be The next question for: decision is wheitler’ the’ first execution _ / appellate Court was justified-ia holding that’ the’ ‘amount directed to be- deposited was not deposited as it fell short” ‘by a5: ‘paise. Order.
20; rule 14 CPC provides : oa \ + af “Decree .in'. pré-emption suit—(i) = Where -the Court? decrees a-claim to pre-emption in respect ofa particular * scale of property and - the purchase money has not ,been paid into Court, ‘the decree shall—~ a
(a) specify"a day on or before which 1 the’ purchase money shall be so paid, and , (c) direct that on payment into Court of such pirchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause
_ (a), the defendant shall deliver possession of the a property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but. that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
Under Order: 20, rule. 14 CPC, the plaintiff decree-holder, in order to get delivery of possession of the land, has to fulfil two conditions ; (i) he has to deposit in Court the purchase money together with the cost, if any, decreed against him and (ii) the
- deposit must be made on or before the date figed by the Court. .
Here the admitted position is that the appellant 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 was deposited, but beyond time. The executing Court
” held that the short deposit was due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona
-. fide mistake, but it was a default and thereby the executing appellate
Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non-deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while tlie
850 SUPREME COURT REPORTS (1983] 1 s.c.k.
appellant has 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 toa mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original executing Court.
9. In the result, we allow the appeal with costs, set aside the orders of the High Court as well as the first execution appellate - Court and restore the order of the original executing Court.
_ SR. . | Appeal allowed,