NARAIN Vs. KANI BAI W

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 17th February, 1976 passed by the learned Addl. District Judge, Jhalawar, in Civil Appeals No. 27 of 1975 and 9 of 1975, dismissing the Appeal No. 9 of 1975 and maintaining the judgment of the learned Munsif and Judicial Magistrate, Aklera dated 11th October, 1975 and allowing appeal No. 27, of 1975, by which the suit of the plaintiff was dismissed.

(2.) BRIEFLY stated the facts of the case are that the plaintiff obtained a conditional decree against the defendants for pre -emption in respect of certain lands on 17th April, 1974. The decree provided that the defendant shall deliver possession of the suit land to the plaintiff on latter's depositing Rs. 3,000/ - in the court within two months from the date of judgment and in case of default, the suit shall stand dismissed with costs. In the decree, it was also directed that Rs. 3,000/ - may be paid to defendant Madan Mohan or his guardian Mangi Lal. The other relevant facts are that two months period allowed for paying or depositing the amount expired on 17th June, 1975 which fell during the summer vacation which lasted upto 29th June, 1975. The court re -opened on 30th June 1975. On opening of the court on 30 -6 -1975, the plaintiff obtained triplicate challans from the court to deposit the amount in the Bank. Due to half yearly closing the Bank did not accept the amount on that day, and, therefore, the same was deposited on 1st July, 1975. After depositing the amount the plaintiff decree -holder filed an execution application and obtained possession of the land in dispute from the defendant. Upon their dispossession the defendants filed an application on 19th September, 1975, before the executing court contending that on plaintiff's failure to deposit Rs. 3,000/ - on 17th June, 1975 in a court, the suit of preemption stood dismissed automatically and, thus, the question of execution of the pre -emption decree became irrelevant. It was prayed by the defendants that the possession of the suit land be restored to them. The objections raised by the defendant judgment debtor were contested by the decree -holder contending that there was summer vacation from 2nd June, 1975 to 29th June, 1975 and, thus, it was not possible for him to deposit the purchase money in accordance with the command of the decree passed by the court on 17th April, 1975. It was also contended by the decree -holder that he had a right to deposit the amount of opening day after vacation. It was thus, submitted by the decree holder that in the facts and circumstances of the case it should be held that the decree holder has deposited the amount within the time fixed by the court in the decree of pre -emption. The learned Executing Court held that the money was not deposited when it ought to have been deposited by the decree -holder and the suit for pre -emption was dismissed. The executing Court also directed that the possession of the land in question be restored to the defendants. An appeal was preferred. The appellate Court also confirmed the order of dismissal of the suit.

(3.) I have given my thoughtful consideration to the respective submissions made by the learned Counsel for the parties. In my opinion, the facts of Chandanmal's case (supra) are not applicable to the case in hand. In that case, the civil courts were not completely closed. As per the order of the High Court of former State of Jodhpur no civil cases could be taken up by the civil court except as were more than one year old as on 1st day of May, 1949. There was also a clear direction that the civil courts would entertain plaints and petitions in urgent cases during the vacation. But in the instant case, the position is not the same. The High Court gave the directions that all plaints and appeals in civil cases which but for the closing of the court could have been filed during the vacation shall be filed on the day the court would reopen. Further, it appears that the case in which the decree for pre -emption was passed was based on the law of pre -emption in Marwar in 1922. The learned Division Bench did not consider the provisions of General Clauses Act. In the Rajasthan General Clauses Act, 1955, there is a clear provision which provides for computation of time, which is reproduced as under: 11. Computation of time, where, by any Rajasthan Law, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open; Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1908 (Central Act IX of 1908, applies.