BHAGWATI DEVI Vs. CHANDRIKA PRASAD

JUDGEMENT

(1.) This is a defendant's second appeal against concurrent judgments of the Courts below dismissing the defendant's application under Section 144, Civil P.C. The plaintiff-respondent brought a suit in the Court of the City Munsif of Benares for pre emption of a house in that city and on 22 May, 1932 the learned Munsif decreed the suit. The operative portion of the order reads as follows: Plaintiff's suit is decreed with costs on payment of Rs. 2,150 within a month. In case of non-payment the suit would stand dismissed with costs.

(2.) The amount of the costs awarded to the successful plaintiff by this decree came to Rs. 186.4.0. The plaintiff deposited the sum of Rs. 2150 in Court on 20th June 1932 and on 1 July 1932 he applied for execution of the decree praying for delivery of possession over the house and for the realization of the costs by attachment out of the sum of Rs. 2,150 which he had deposited in Court. In the meanwhile the defendant, the vendee, preferred an appeal against the pre- emption decree and on 11 November 1933 this appeal was heard and determined and the decree of the Court of first instance modified both as to the amount to be deposited and as to the costs. Under the decree of the lower Appellate Court the plaintiff was directed to deposit a sum of Rs. 2,650 instead of Rs. 2,150 and he was awarded a sum of Rs. 169-10-0 as costs in both Courts due to him from the defendant, whereas the defendant was awarded a sum of Rs. 92- 7-0 as coats in both Courts due to him from the plaintiff. The plaintiff was given a period of three months to deposit the additional sum required by this decree.

(3.) On 9 February 1934 the plaintiff deposited a sum of Rs. 330-6-0 in Court and claimed that this sum was sufficient to satisfy the terms of the Appellate Court decree. It will be observed that the Appellate Court had directed that the plaintiff should deposit a sum of Rs. 500 in excess of the sum directed by the learned Munsif. The plaintiff did not deposit the full sum of Rs. 500 but deposited the said sum of Rs. 330-6-0 which is the difference between Rs. 500 and Rs. 169-10-0 which was the amount of costs awarded to him by the lower Appellate Court.