PARTAP KAUR Vs. SARDARA SINGH

JUDGEMENT

(1.) THIS appeal under Clause X of the Letters Patent is directed against the decision of the learned Single Judge of this Court reversing in appeal the decision of the courts below and dismissing the execution application.

(2.) IN order to appreciate the controversy it is necessary to state the relevant facts. A suit for pre-emption was filed on 4th April, 1963, for possession of 240 kanals 14 marlas of land by Mst. Partap Kaur and Gurbux Singh. This suit was decreed by the Subordinate Judge on 26th March, 1965. The plaintiffs were directed to deposit rupees 12,000/- in court by 26th May, 1965, after deducting 1/5th of the preemption money already deposited by them. Failure to deposit the amount would have resulted in dismissal of the suit. This decree was appealed against by the vendee and the appeal was partially allowed by the learned District Judge, ferozepore on 20th November, 1965. The result was that the decree in favour of gurbux Singh was maintained to the extent of 1/3rd on payment of Rs. 4,000/- on or before 20th December, 1965, failing which his claim was to be dismissed with costs and the suit of the pre-emptors regarding 2/3rd of the land was dismissed. It may be mentioned here that the direction by the learned District Judge to deposit the money on or before 20th December, 1965, was meaningless, because the preemptors had already deposited Rupees 12,000/-, i. e. ; much more than the amount for which the learned District Judge maintained the decree. Against the decree of the learned District Judge the parties preferred tow appeals. One appeal was by the vendee, namely, R. S. A. No 1737 of 1965 and the other was by the pre-emptors, namely, R. S. A. No. 154 of 1966. The vendee obtained an ex parte order of stay on 3rd January, 1966, to the effect that the possession of the land be not delivered to the pre-emptors. An application was moved for the vacation of the stay order and, in the alternative, a prayer was made that the pre-emptors might be allowed to withdraw the pre-emption money. Gurdev Singh, J; then passed the following order on 2nd February, 1966:

(3.) IN our opinion, the learned Single Judge was in error in allowing the appeal of the vendee. It was incumbent upon the learned Single Judge when the decree of the Lower Appellate Court was affirmed to allow time to the pre-emptors to put in pre-emption money because by an order of this Court it had been allowed to be withdrawn. This was an omission and the same could be supplied at any time under Section 152 of the Code of Civil Procedure, and at the stage when the appeal was before the learned Single Judge, he could have supplied this omission. Moreover, the decision of the Supreme Court in Dattatraya v. Shaikh Mahaboob shaikh Ali, AIR 1970 SC 750, is directly in point and that decision also provides that is for the final Court to fix the time for deposit of the pre-emption money where a stay order has been obtained. Therefore, we are clearly of the view that the learned Single Judge was wrong in not exercising his undoubted jurisdiction under Section 152 of the Code of Civil Procedure and that would have set at rest all this controversy.