DATTATRAYA Vs. SHAIKH MAHABOOB SHAIKH ALI

JUDGEMENT

(1.) This appeal is brought, by special leave, on behalf of the plaintiff against the judgment of Bombay High Court dated October 11/14, 1963 in Appeal No. 30 of 1962 from the appellate order of the District Court, Osmanabad whereby the High Court reversed the judgment of the lower courts and declared that the appellant was not entitled to execute the decree for pre-emption and that the respondents were entitled to be put in possession of the properties of which they were dispossessed in the enforcement of the pre-emption decree.

(2.) The appellant had obtained a decree for possession of certain lands in a pre-emption suit he had brought against the respondents. The decree was made in March, 1945 and the appellant was directed to pay the consideration of Rs. 5,000/- within six months from the date of the decree on which the appellant was to be put in possession of the suit lands. In case of default in depositing the sum within the time the plaintiff's suit was to be deemed to have been dismissed. The respondents preferred an appeal to the District Court against the decree but the District Court confirmed the decree on January 28, 1955. The amount of Rupees 5,000/- was deposited in Court by the appellant on December 20, 1954 within the time granted in the trial Court's decree but it was subsequently withdrawn by him under orders of the Court. While dismissing the appeal of the respondents and confirming the decree for pre-emption, the District Court directed the appellant to deposit the sum of Rs. 5,000/- on or before April 30, 1955 and directed the respondents on such deposit to deliver possession of the properties. There was also a direction in the decree that in case the amount was not paid on the due date the suit shall stand dismissed with cost. The decree was passed in conformity with Order 20, Rule 14 of the Civil Procedure Code. The respondents preferred a Second Appeal to the High Court and pending disposal of the appeal the respondents prayed for stay of the execution decree. On March 23, 1955 the High Court passed the stay order in the following terms:

(3.) The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment-debtors and not a stay with regard to the deposit of purchase price by the decree-holder. In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.