SARUPI Vs. HAR GIAN

JUDGEMENT

(1.) THE brief facts giving rise to this appeal in an execution case are as under:

(2.) HAR Gian and Ram Hans (hereinafter called the respondents) obtained a decree for specific performance of contract of sale from the Court then presided by Shri Dev Raj Khanna, Subordinate Judge First Class, Gurgaon, respecting land situate within the limits of village-Mewla Maharajpur, against Smt. Sarupi, her husband-Bhim Singh (now deceased; Mam Chand and Mam Chandi are his son and daughter, respectively) hereinafter called the appellants, who were vendors, on March 15, 1961. Ram Devi, who is the mother of Smt. Sarupi, had been impleaded pro forma defendant, being lessee of some of the aforesaid land. It was directed by the said decree that the respondents would pay Rs. 32,500/- (hereinafter called the amount) to the appellants within one month. So, they (the respondents) deposited the amount for payment to the appellants in the trial Court on April 11, 1961. The appellants and also Smt. Ram Devi preferred appeal to this Court. On July 19, 1961, it was directed by this Court that the appellants would not be dispossessed from the land and the respondents could withdraw the amount deposited by them, and they would be required to re-deposit the same in accordance with the final decision in the appeal. So, they withdrew the amount from the trial Court. Bhim Singh died pending the appeal and his son, Mam Chand and daughter, Smt. Mam Chandi had been impleaded as his legal representatives. The said appeal was dismissed on July 14, 1972. No time or date for re-deposit of the amount was, however, mentioned in the judgment and decree recorded by this Court on July 14, 1972. Therefore, the respondents made an application for fixation of the time for re-deposit of the amount and this Court by its order dated August 7, 1972, allowed one month's time for re-deposit of the amount. The respondent again moved application for extension of the time for re-deposit of the amount, alleging that certified copy of the order dated August 7, 1972, had Dot been supplied to them despite their making application for the same and the trial Court did not accept the re-deposit of the amount without the copy of the said order. On that application, this Court by its order dated October 24, 1972, extended time for deposit of the amount for one month. Both these orders dated August 7, 1972 and October 24, 1972, had been passed without any notice to the appellants. The respondents deposited the amount on November 24, 1972, i. e. , within the time allowed by the order dated October 24, 1972, in the Court presided by Shri Tarlochan Singh, Subordinate Judge First Class, Gurgaon. He was, however, not successor of Shri Dev Raj Khanna, who had passed the decree for specific performance, and Miss Kiran Anand was his (Shri Dev Raj Khanna's) successor. Both these Courts, i. e. , presided by Shri Tarlochan Singh and Miss Kiran Anand, are located in one and the same compound at Gurgaon. When the respondents took out execution of the decree, the appellants raised objections under Section 47, Civil Procedure Code, that it (the decree) was inexecutable because neither the amount had been deposited within time allowed by the decree, nor it was deposited in the proper Court. The said objections were resisted by the respondents and the Executing Court framed this issue :--

(3.) BROADLY the facts narrated above are admitted by the parties. The contentions raised by Sh. G. R. Majithia, learned counsel for the appellants, are twofold and may be formulated as under : (1) That the effect of dismissal of the appeal by this Court on July 14, 1972, was that the decree of the trial Court was restored and the respondents were, therefore, required to re-deposit the amount within one month as had been allowed by the trial Court. That means that they were bound to deposit the amount on or before August 14, 1972. It was urged that since orders of this Court dated August 7, 1972 and October 24, 1972, had been passed at the back of the appellants and without notice to them, the same were ineffective. So, Shri Majithia maintained that since the re-deposit of the amount had not been made within the period allowed by the decree, it (the decree) had lapsed and could not be executed. (2) That the amount having not been re-deposited in the Court which passed the decree, it (the re-deposit of the amount) could not be considered as valid deposit.