DAYAL SINGH Vs. SHISHA SINGH AND ANOTHER

JUDGEMENT

(1.) DYAL Singh sought to pre -empt the sale made in favour of Shisha Singh and Amrik Singh on the ground that the vendor was related to him which relationship gave a right to sue for pre -emption. The specified relationship was established and the trial Court decreed the suit for pre -emption on 28th September, 1983 with a direction to deposit the pre -emption amount by 20.11.1983, failing which the suit for pre -emption would stand dismissed. The vendees went up in appeal and on 8th November, 1983 got stay of dispossession, and notice of the appeal was issued to the pre -emptor. Before the appellate Court, the pre emptor filed an application for absolving him from complying with the decree for depositing the decreetal amount by 20th November, 1983. That application was dismissed by the appellate Court on 18.11.1983. Thereafter, the preemptor filed an application before the trial Court for the extension of time for depositing the decretal amount. That application was dismissed on 26.10 1983. Nevertheless, the pre emptor deposited the decretal amount on 26 -11 -1983. When the appeal came up for hearing before the appellate Court on 16.12.1983, in view of the two orders dated 18.11.1983 and 26.11.1983, by which the appellate Court and trial Court did not absolve the pre -empter to deposit the decretal amount nor extended the time for deposit, the vendees brought to the notice of the Court that the pre -emptor's suit stood dismissed as the deposit was not made by 20.11.1983, and, therefore, the appeal was infructuous and be dismissed as withdrawn. The Pre -emptor was also represented on that date before the appellate Court, and the appellate Court dismissed the appeal as withdrawn since it had become infructuous.

(2.) IT is thereafter that the pre -emptor took out execution of the pre -emption decree, in which the vendees raised objections. The Executing Court by order dated 15.10.1985 accepted the objections and came to the conclusion that since deposit was not made by 20.11.1983, the suit stood dismissed, and thus the execution could not be taken out This is revision by the pre -emptor.

(3.) THE proposition of law enunciated is correct and would have been applied if the facts in the aforesaid two cases had been identical with the facts of the present case. In the Dattatraya's case (supra) the vendee had obtained stay from the appellate Court and during the continuance of the stay, the date of deposit expired and ultimately the appeal was heard on merits and the decree of the trial Court was upheld while dismissing the appeal the trial Court did not specifically extend the date of deposit. On those facts, it was held that in view of the stay order, the entire decree was put in abeyance and the pre -emptor was also not obliged to comply with his reciprocal part of depositing the pre -emption amount and on dismissal of appeal even if the appellate Court had not granted extension of time, he was well within his right to deposit the amount within time, which was granted by the trial Court Similar were the facts in the other cited case.