JOHRI SINGH Vs. SUKH PAL SINGH

JUDGEMENT

(1.) This appeal by special leave is from the judgment of the High Court of Punjab and Haryana allowing the revision petition, setting aside the order of the Senior Subordinate Judge and dismissing the application of the decree-holder praying for permission to deposit the balance amount of the pre-emption decree.

(2.) On 21-9-1975 the Court of the Senior Subordinate Judge decreed a claim to pre-emption in favour of the appellant and against the respondents subject to the deposit of the purchase-money being Rs. 41,082/- less the amount of 'Zare-Panjum' on or before 31-12-1975 failing which his suit would stand dismissed. The appellant by application dated 22-11-1975, annexing a treasury challan, obtained permission to deposit 4/5th of the purchase-money amounting to Rs. 33582/-and the amount was deposited on 28-11-1975, although the last date for depositing the amount was 31-12-1975. On 4-12-1975 he filed an execution petition for being delivered possession of the land and the possession was actually delivered on 29-1-1976.

(3.) It appears, on 21-1-1976 the office reported that the amount deposited fell short of the decretal amount by Rs. 100/-. Thereupon two separate applications were filed by the respondents-judgment-debtors and the appellant- decree-holder. The former in their application prayed that the latter having not complied with the condition of the decree, he having deposited Rs. 100/-less, the decree was a nullity and the suit stood dismissed, and hence, the land be restored to them. The appellant-decree-holder in his application prayed for condonation of the delay and for permission to deposit the balance of Rs. 100/-stating that there was an inadvertent arithmetical mistake on his part as also on the part of the Court officials. The learned Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit and relying on Jang Singh v. Brijlal, (1964) 2 SCR 145 and holding that the mistake of the decree-holder was shared by the Court, condoned the delay and allowed '10 days' time to deposit the balance of Rs. 100/- failing which the suit should stand dismissed. The respondents having moved in revision therefrom under S. 115, CPC, the High Court by the impugned judgment, holding that the decree-holder himself filed the application annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials, and applying Labh Singh v. Hardayal, (1977) 79 Pun LR 417, allowed the revision petition, set aside the order of the Senior Subordinate Judge and dismissed the appellant-decree-holder's application for condonation and permission to deposit the balance of Rs. 100/. Hence this appeal.