MUNSHI Vs. PUNNA RAM

JUDGEMENT

(1.) ONE Darya Ram (who has not been impleaded as a party to this appeal) had entered into a written agreement for the sale of the property in dispute to Punna ram, plaintiff-respondent (hereinafter referred to as the decree holder) on August 30, 1967, wherein he had agreed to execute the sale-deed on or before June 5, 1968. The decree-holder came to know that Darya Ram was proposing to commit breach of the agreement by selling away the property in question to Munshi appellant (hereinafter referred to as the judgment-debtor), and, therefore, filed a suit for injunction against Darya Ram to restrain him from selling the property to the judgment debtor. The judgment-debtor who had also been impleaded as a defendant in that suit contested it, filed his written statement and even appeared as a witness in that suit. It is stated that on an objection against the maintainability of the suit for injunction, the said suit was withdrawn by the decree-holder and thereafter the suit for specific performance of the agreement for sale from which the present proceedings have arisen, was instituted by him. In the period that intervened between the dismissal of the suit for injunction and the institution of the suit for specific performance, Darya Ram conveyed the property to the judgment-debtor. The judgment-debtor resisted the suit for specific performance also, but the same was ultimately decreed by the trial Court on July 23, 1971. Along with Regular First Appeal No. 350 of 1971, which was filed by the judgment-debtor against the decree for possession by specific performance also, but the same was ultimately decreed by the trial Court on July 23, 1971. Along with Regular First Appeal No. 350 of 1971, which was filed by the judgment-debtor against the decree for possession by specific performance of the agreement for sale the judgment-debtor made an application for stay of execution of that decree. While admitting the appeal on August 11, 1971, Dhillon, J directed the stay of execution proceedings ad interim with notice of the application for stay to the other side. After hearing the counsel for the judgment-debtor and the decree-holder, Dhillon J dismissed the said application (C. M. 2391-C of 1971) in the regular First Appeal, by his detailed order, dated September 6, 1971, and vacated the ex parte stay granted by the learned Judge earlier on August 11, 1971. The regular First Appeal had admittedly been correctly filed in this Court as the jurisdictional value of the suit for specific performance was Rs. 25,000/ -.

(2.) AFTER the vacation of the stay order by the High Court, the judgment-debtor filed objections against the execution of the decree in the executing Court which were dismissed on January 18, 1973. Though the judgment-debtor had himself filed the Regular First Appeal against the decree in this Court, he chose a wrong forum for preferring his appeal against the order of the executing Court, dated january 18, 1973. He filed the appeal before the learned District Judge, Karnal, on february 15, 1973. Along with the memorandum of appeal, the judgment-debtor made an application for stay of the execution of the decree against him. While admitting the appeal on the same day, that is on February 15, 1973, the learned district Judge, Karnal, is stated to have issued notice of the appeal to the decree-holder for September 19, 1973, and notice of the application for April 4, 1973. He also granted ex parte ad interim stay of the execution proceedings. Since a long date had been given for the disposal of the application for stay, the decree-holder made an application under Order 39, Rule 4 of the Code of Civil Procedure on february 28, 1973, for vacating the ex parte stay order mainly on two grounds, viz. (I) the Court of the District Judge had no jurisdiction to entertain or deal with the appeal as the valuation of the suit from which the execution proceedings had arisen was Rs. 25,000/- ; and (ii) the High Court had already vacated the stay order on September 6, 1971. When the application came up for motion hearing before the learned District Judge, he chose to issue, notice of the same to the decree-holder for the date already fixed in the stay proceedings, that is for April 4, 1973. It is not disputed by Mr. Diali Ram Puri, learned counsel for the judgment-debtor, that notice of that application along with a copy of the application for vacating the stay was served on the judgment-debtor appellant before April 4, 1973, and that the judgment-debtor-appellant appeared before the learned district Judge on that day in pursuance of that notice. On the date of hearing of the stay proceedings, the judgment-debtor filed a written reply to the application for vacating ex parte stay wherein he insisted that the District Judge and not the high Court had the pecuniary jurisdiction to hear the execution appeal. It is somewhat strange that the learned District Judge did not decide the stay matter on that day, but merely directed that the application for stay as well as the application for vacating the ex parte stay would be heard with the appeal itself on september 19, 1973, for which date the notice in the appeal had already been issued. In our opinion, the order of adjournment, dated April 4, 1973, virtually amounted to confirming the stay order till the hearing of the appeal, and for all practical purposes amounted to a dismissal of the application for vacating the ex parte stay order.

(3.) FACED with the situation referred to above, the decree-holder rushed to this court and filed Civil Revision 535 of 1973, against the ex parte order of the learned District Judge, dated February Court, dated April 4, 1973, whereby he had not disposed of the application for vacating the ex parte stay. The revision petition was allowed by this Court (Dhillon, J.) after notice to the judgment-debtor, and after hearing his counsel on May 31, 1973. The stay order granted by the District judge was vacated. It was specifically observed by the learned Judge allowing the revision petition that the District Judge should not have granted the stay after the high Court had refused to stay the execution proceedings by order, dated september 6, 1971. When the judgment-debtor found that the stay order had been vacated, and he would have to be dispossessed in execution of the decree of the trial Court, he went to the Court of the District Judge and made an application to that Court to return the appeal to him on the ground that the Court of the district Judge lacked pecuniary jurisdiction to hear the appeal. He had refused to admit this position and in fact he had not only contested it in writing in his reply to the decree-holder's application on April 4, 1973, before the District Judge, but had also joined issue with the decree-holder on that point at the hearing of the revision petition in the High Court. It was in hat situation that the High Court had expressly left the question of pecuniary jurisdiction of the District Court to hear the execution appeal open as that point was pending consideration in the appeal itself which was at that time sub-judge before the District Judge. Yet, suddenly the correct legal position dawned on him after the stay order had been vacated by the high Court. The learned District Judge allegedly passed an ex parte order, dated june 6, 1973, on the application of the judgment-debtor without even giving notice of that application to the decree-holder who was a party to the appeal, and on whom notice of the appeal had already been served for September 19, 1973. The learned district Judge observed that as per the statement of the counsel for the appellant (judgment-debtor), the jurisdictional value in the case was Rs. 26,000/-, and the appeal had, therefore, been wrongly filed in his Court instead of being filed in the High Court. He, therefore, ordered (on June 6, 1973) that in view of the jurisdictional value of the appeal being Rs. 26,000/-, the appeal had been wrongly filed in his Court and it should be returned (to the judgment-debtorappellant)for presentation to the proper Court. The judgment-debtor lost not time at all in taking back the appeal from the Court of the District Judge on the same day and presented the same to this Court on June 7, 1973, along with two miscellaneous applications. In C. M. 1918-C of 1973, under Order 41, Rule 5 of the code, prayer was made for staying dispossession of the Judgment-debtor in execution of the decree in question till the final decision of the appeal. In C. M. 1919-C of 1973, the prayer was for condonation of delay or extension of time for filing the appeal under Section 5 of the Limitation Act (hereinafter called the Act)on the ground that delay in the presentation of the appeal had resulted from a bona fide mistake in preferring the appeal to the Court of the District Judge, karnal.