BISUN PRASAD MISHRA Vs. KAMLA KANT JHA

JUDGEMENT

(1.) The necessary facts to be stated for the disposal of this civil revision application are too many and a bit complicated. I shall, however, briefly state them.

(2.) The petitioner filed Title Suit No. 7 of 1948 on the 10th of January, 1948, against one Mani Misrain for specific performance of contract said to have been executed by her in favour of the petitioner. The consideration money mentioned in the agreement was Rs. 325/-, out of which Rs. 100/- was paid by way of earnest money, and Rs. 225/- was to be paid later. Mani Misrain did not execute the sale deed, and, hence the suit was filed impleading the subsequent transferees as the defendants second party- The suit was decreed by the trial court on the 1st July, 1950- It directed the plaintiff to deposit the balance of Rs. 225/- within fifteen days of the date of the decree. It is not disputed that the said sum of Rs. 225/- was deposited by challan No. 358 in the name of Mani Misrain on the 7th of July, 1950, that is, well within the time granted by the decree. Finally, however, Second Appeal No. 950 of 1951 succeeded in this court on the 28th August, 1958. The judgments and decrees of the courts below were set aside. The case was remitted back to the trial court to try the issue of legal necessity after giving opportunities to the parties to amend their pleadings. The issue was tried. The suit was again decreed by the trial court on the 21st March, 1959. By this time, Mani Misrain was dead, and her heirs were substituted as defendants first party. Being ignorant of the fact that the sum of Rs. 225/- had already been deposited on the 7th of July, 1950, in pursuance of the earlier decree, the trial court again directed the plaintiff to deposit the sum of Rs. 225/- within one month of the second decree dated the 21st of March, 1959. This sum, however, was not deposited. The matter was being litigated further, and eventually the second appeal filed from the lower appellate court's judgment, which affirmed the trial court's judgment dated the 21st March, 1959, was dismissed by this court on the 16th September, 1964.

(3.) In the meantime, the petitioner-decree-holder had executed his decree for specific performance in Execution Case No. 88 of 1963. This execution case was levied on the 28th May, 1963. Miscellaneous Case No. 23 of 1965, which was filed by the judgment-debtors in this case on 22-2- 1965, was however; dismissed for default on the 11th September, 1965. On the 3rd January, 1966, the petitioner filed a fresh challan in the court seeking its permission to deposit the sum of Rs. 225/-afresh. At his risk, the money was allowed to be deposited on the 5th January, 1966. One fact may be noticed here that on the 15th January, 1966, the judgment-debtors filed Miscellaneous Case No. 9 of 1966 objecting to the execution of the decree on the ground that the money was not deposited in time, and, hence, the decree could not be executed. This miscellaneous case was dismissed by the executing court on the 13th December, 1966. The judgment-debtors first party who had filed Miscellaneous Case No. 9 of 1966 filed a miscellaneous appeal in the lower appellate court, but they subsequently withdrew it. The order of the execution court, therefore, holding that the decree was executable became final.