BADRUDDIN KHAN Vs. MUNSHI MAHYAR KHAN

JUDGEMENT

(1.) This appeal, though termed by the office as an execution first appeal, is an appeal arising out of proceedings under Section 144, Civil P.C. Such proceedings, as has1 been held by a Full Bench of this Court in Parmeshwar Singh V/s. Sital Din Dube , are not proceedings in; execution of decree. The facts which have given rise to this appeal are as follows : The applicant in this appeal filed a suit in the year 1927 for specific performance of a contract of sale against Munshi Mahyar Khan, defendant-respondent 1, and Kunwar Nand Lal deceased, predecessor-in- interest of defendants-respondents 2 to 4. The suit was dismissed, by the trial Court of the Civil Judge with costs. By executing their decree for costs defendant- respondent 1 realized from the plaintiffs a sum of Rs. 683 on 22 June, 1928 and Nand Lal deceased realized Rs. 662-2-6 his costs on 24 January 1929. The plaintiffs filed an appeal against the decree of the trial Court and on 24 July 1930 this Court allowed the appeal, set aside the decree of the trial Court and passed a decree for specific performance of the contract in the following terms: The result therefore is that we allow this appeal and setting aside the decree of the Court below decree the plaintiffs claim for the specific performance of the contract in terms entered in the unregistered sale deed dated 22 November, 1926 (Ex. 18). We fix 25 August 1930 as the last date for the deposit of Rs. 13,850 (half of the sale consideration) plus Rs. 275 (costs of stamp) to the credit of Mahayar Khan, defendant 1, in the Court Mow. If the amount is not deposited within the time fixed, the suit will stand dismissed with costs. In case the amount is deposited within the time allowed, the plaintiffs shall be entitled to costs in both Courts which shall also include the sum of Rs. 275 (costs of stamp), the defendant Kunwar Nand Lal must execute a fresh deed of sale in terms of Ex. 18 and present it for registration within the time allowed by law : if he neglects or refuses to do so the plaintiffs will be at liberty to proved in the mariner allowed by Order 21, Rule 34, Civil P.C. The balance of the sale consideration, viz. Rs. 13,550, should be deposited in the Court below within one week of the date of the registration and will be to the credit of His Highness the Maharaja of Benares, unless defendant 1 satisfies the Court that the mortgage deed of 15 May 1913 has been fully satisfied, in which case defendant 1 would be entitled to the whole amount. In case the second inistalment is not deposited by the plaintiffs, defendant 1 will be at liberty to execute the decree against them.... Execution.

(2.) The plaintiffs applied for an urgent copy of the judgment on 25 July 1930, but as the judgment was not ready and the High Court closed for the long vacation on 31 July 1930, the judgment was not actually signed by the Judges till shortly before the reopening of the Court in October 1930. The copy of the judgment was ready on 7 October 1930 and was actually delivered to plaintiff's counsel on 16 October 1930. In the meantime the date fixed for the deposit had expired. On 22 August, 1930 the plaintiffs by means of a tender which was signed by the Civil Judge deposited in the Government Treasury the sum of Rs. 13,550 and they deposited in the Court of the Civil Judge stamp papers of the value of Rs. 275. Without waiting for the registration of the document, they deposited the balance of Rs. 13,550 in Court within a week of their previous application in; was directed in the decree of this Court.

(3.) On 23 August the plaintiffs applied for execution of their decree on the ground that they had complied with the terms of the decree of this Court and were entitled to execute it. As a copy of this Court's judgment was not available to the office of the Civil Judge, no report was made on the application for execution and copies of the judgment and decree of this Court were awaited. In the meantime the defendants rushed to the Court and on 16 October 1930 filed objections to the effect that the decree of this Court had not been complied with inasmuch as the sum of Rs. 13,550 had been deposited not to the credit of defendant 1, Mahyar Khan, as ordered in the decree of this Court, but to the credit of defendant 2, Kunwar Nand Lal deceased and further that instead of depositing Rs. 275 in cash to the credit of defendant 1 the plaintiffs had deposited stamp papers of that value.