PETITIONER:
JOGDHAYAN
Vs.
RESPONDENT:
BABU RAM AND OTHERS
DATE OF JUDGMENT23/11/1982
BENCH:
ISLAM, BAHARUL (J)
BENCH:
ISLAM, BAHARUL (J)
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION:
1983 AIR 57 1983 SCR (1) 844
1983 SCC (1) 26 1982 SCALE (2)1061
CITATOR INFO :
E 1989 SC2073 (17,18)
RF 1992 SC 109 (6)
ACT:
Constitution of India 1950, Article 136-Supreme Court
exercise 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-pre-emption
suit-Judgement-Decree holder by bona fide mistake fails to
deposit 0.25 Paise, but makes 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 the suit should be
deemed to have been dismissed and consequently execution of
the decree is impermissible-Whether the default could not be
condoned.
HEADNOTE:
Appellant-plaintfull in the pre-emption suit against
the respondent (vendee) 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
RB. 100 u tho charges on account of registration and other
expenses of the dead. Respondent I (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
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 averring that the omission to
deposit 25 paise was due to bona fide mistakes. The vendee
held a regular second appeal and the High Court while
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 appellant deposited this
sum within the time limit.
In the execution case filed before the executing court,
the respondent vendee Sled 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 II
Additional District Judge was accepted holding that the
provisions of order XX Rule 14(1)(b) 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
845
certified copy "as soon as is available". Tho appellant
obtained a certified copy A on June 3, 1970 and filed it in
the High Court on July 17, 1970. The appellant filed r 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 obtaining special leave of the Court.
Allowing the appeal, the Court
^
HELD: 1. The High Court committed 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 section
148 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
securing the ends of justice in case of necessity.
[848-C-D, E-F, 850-B]
2. Under order XX, rule 14 C.P.C. the plaintiff decree
holder, 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 him, and (ii) the deposit must be made on or
before the date fixed by the Court. [849-E-F]
However, in view of 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 Courts craze for
technicalities of law at the cost of justice.
[845-H, 849-G.H, 850-A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 94-of
1972.
Appeal by Special leave from the Judgment and order
dated the 23rd July, 1971 of the Punjab and Haryana High
Court in Execution Second Appeal No. 1941 of 1969.
Uma Datta and Krishna Datta for the Appellant.
S.K. Mehta, P.N. Puri and M.R. Dua for the Respondent.
The Judgment of the Court was delivered by
BAHARUL ISLAM, J. In this appeal by special leave under
Article 136 of the Constitution, the appellant is the victim
of Court’s craze for technicalities of law at the cost of
justice. This Court
846
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 Bot a decree. Respondent No. I was
the vendee and respondent No. 2, who was the real brother of
the plaintiff-appellant, was the 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. I 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 to..
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 proceedings
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 degree 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 executing 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 application for dispensing with the filing
of the certified copy. The High Court while admitting the
appeal passed the following order: E
“Admitted. Certified copy to be filed as soon as
it is available ……………………………. ”
Sd/- R.S. Narula
25.11.69″.
The appellant obtained the certified copy on June 3, 1970
and filed it in the High Court on June 10, 1970. The
appellant filed an application on July 17, 1970 under
section S 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. I raised the
preliminary 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. H
6. Hence this appeal by special leave.
848
7. Shri S.K. Mehta, learned counsel appearing for
Respondent No. I 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 memorandum of appeal. We
do 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 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 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
Section 148 of the Code of Civil Procedure, the Court has
enough power to enlarge time from time to time. Section 148
provides:
“Where any period is fixed or granted by the Court
for the doing of any act prescribed or allowed by this
Code, the Court, may, in its discretion, from time to
time, enlarge such period, even though the period
originally fixed or granted may have expired.”
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.C. and in
dismissing the appeal without going to the merit of the
matter.
Mr. Mehta drew our attention to the second proviso to
subrule of Order 41, rule (1) C.P.C. as amended by Punjab,
Haryana and Chandigarh. The amendment is in the following
words:
“Provided further that the Court may permit the
appeal to be filed with true copies duly authenticated
by an advocate as correct.”
This provision hardly helps him. It is not
understandable, how the counsel for the appellant could file
‘true copies’, when his client had not obtained the
certificate copy of the order tn question.
849
8. The next question for decision is whether the first
execution A appellate Court was justified in holding that
the amount directed to be deposited was not deposited as it
fell short by 25 paise. Order 20, rule 14 CPC provides:
“Decree in pre-emption suits Where the Court
decrees a claim to pre-emption in respect of a
particular scale of property and the purchase money has
not been paid into Court, the decree shall-
(a) specify a day on or before which the purchase
money shall be so paid, and
(c) direct that on payment into Court of such purchase
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 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.
(2) ………………………………………
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 fixed by the Court. F
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 the
850
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. 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, 85 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.
S.R. Appeal allowed.
851