42 Civil Revision No3541 of 1993 Ill d b IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No3541 of 1993 Date of Decision Septembcr 2010 Moti Lal and others Petitioncrs Versus Bhaan Sineh and othcrs espondents 1L CORAM HONBLE NlR JUSTICE HEMANT GUPTA 0 1 Whether Reportersoflocal papers may be allowed to see thc 1 D judgment2 2 To be refcrred to the Reportersor not2 I 3 Whether thejudgmentshould be reportedin the Digest2 Z Present Shri CB Gocl Advccate and Shri Nitin Jain Adrrocatc for the petitioners It Shri RS Chahar Advocate for the respondents a5 Hemant GuptaLQ11 al Kailash Chander the predecessor4leintcrest of the petitionersfiled a suit claiming a decree for joint posscssionof the Z land measuring143 acres and 5 marlas It as the case of the plaintiff Ll that his father Paman Singh scld the property of the plaintiff to defendant No 2 vide registered sale deed dated 1761958 for Rs160001 when thc plaintiffwas minor Snlce the alienation was effected of the property of the rninor the plaintiff claimed possessionof land to the extent of his share The learned trial Court decreed the suit on 2051971 As per decree Exhibit DH12 the plaintiff was to deposit a sum of Rs224001 by 3061971 and in the event of failure of the plaintiff to . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 43 Civil Revision No 3541 of 1993 121 S deposit the said amount it was ordered that the suit shall stand dismissed Operativepart of the decree dated 2051971 reads as under This suit coming on this day for final disposalbefore me ShBP Jindal Sub Judge II Class GurgaonCamp Rewaril In the presence of Shri Shashi Bhushan Advocate for the plaintiffand that of Shri Mange Lal Yadav Advocate for he defendant it is ordered that a joint decree for possessionin respect of 143 st acres 5 marlas out of the land mentioned in Para No 3 of the P tX plaint in possessionin favour of the plaintiff and against the defendant on the plaintiff depositing a sum of 0 Rs224001oy 30197 In case the plaintiff fails to deposit this amount by the presczibeddate his suit shall stand dismissed D The plaintiff filed an appealagainst the said decree On 86 197 1 vide order Exhibit DH13 the learned first AppellateCourt Z stayed the deposit of the amount after consideringthe argument of the plaintiff that the suit should have been decreed without any er I payment The said interim order continued from time to time It was 08 vide order Exhibit DH14 stay order alreadypassedwas extendcd till r further orders W7 Z The appeal filed by the plaintiff was partly allowed on 81 3111973 videjudgmentand decree Exhibit DHl5 and Exhibit DH16 The learned flrst AppellateCourt granteddecree for joint possession on the condition that the appellantpays Rs152001 to the vendee The operativepart of the order reads as underl 13 In the result this appealpartiallysucceeds and is allowed I set aside the judgment and decree of the lerned trial Judge and pass a decree for joint possession of 143 Standard Kanals and 5 Standard Marlas out of the suit land mentioned in para 70f the plaint ln favour of the appellant against thc . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 44 Civil Revision No 3541 of 1993 131 1 0 7 1 6 respondentson the condition that the appellant pays Rs152001 to BhagwanSingh vendee and only then the decree should be executable It is a Ot case where the partiesshould be left to bear their own costs throughout and I order accordingly 93 The defendantlendee came up 111 appeal before this Court the appealwas allowed The judgmentand decree of the first Appellate Court were set aside and that of the trial Court were restored on 1591982 However lIl second appeal there was no condition in respect of deposit of the amount within any stipulated period 0 It was on 205 1983 the plaintiffdepositedthe amount of I D Rs4001 vide voucher Exhibit DHW111 and Oled an execution to seek possessionof the land measuring143 acres and 5 marlas It was 111the said execution the JudgmentDebtoravendee filed objections on Z 28 985 Vide order impugned111 thc present revision the said 2 objectionshave been acceptedand the execution dismissed on the groundthat the petitionershave not compliedwith the conditions c8 imposed by the Iearned trial Court whereby the petitioners were granted40 days time to depositthe sum of Rs224001 Z Learned counsel for the petitioners has vehemently m arguedthat the decree passedby the learned trial Court on 2051971 was stayed by the flrst Appellate Court on 81971 The first AppellateCourt modified the decree and reduced the amount to be depositedas Rs52001 However there was no time limit granted by the learned flrst AppellateCourt duringwhich sald amount was to be deposited While allowingthe appealof the vendee this Court has not granted any time to the plaintiff to deposit the amount of Rs224001 Since the decree passedby the trial Court stood merged with the decree passedby the flrst AppellateCourt and subsequently . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 45 Civil Revision No 3541 of 1993 141 1 0 S 5 with the decree of this Court therefore in the absence of any condition of deposit of Rs224001 vithin a specifiedtime the petitionerdecreeholders could depositthe same within a reasonable tlme Alternatively it 1S argued that the petitioners have depositedthe amount on 205 1983 and in exercise of the jurisdiction conferred on the Civil Court under Section 148 CPC the Court should have exercised judicial discretion in extendingthe periodof deposittill 1 the date the deposit was made Reliance is placed upon the 0 judgments of the Honble SupremeCourt reported as IC Kalpana 0 Saraswathi v PSS Somsundaram Chettiar AIR 1980 SC 512 and CD Johri Singh V Sukh Pal Singh and others 1989121PLR 617 and the judgmentsof this Court in Darshan Gir v Suljit Kaur 200111RCR Z 1Civill371 Jagan Nath Anr V Lekh Ram 200011 Cur LJ 418 and Puniab National Bank V Sushil Kumar Garg 200821 ISJ Lr Bankingl 199 It is contended that the decree passedis not in a suit for specific performanceor ln a suit for preemption but in a suit 025 wherein challengewas made to the sale of the property of the minor Since no time was fixed in the order passedby the High Court the 7 Z time fixed by the trial Court loosos significanceand cannot be made L1 basis to return a flnding that the petitionerscannot execute the decree A perusal of the record shows that though the trial Court has granted9O days time to the plaintiff to deposit the surn of Rs224001 but before the expiryof the aforesaid period there wasa staygrantedby the flrst AppellateCourt on 861971The decree of the first AppellateCourt in which the decree of the trial Court rnergedwas subjectto depositof Rs 152001 There was no time limit fixed when the High Court has restored the judgment and decree of . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 46 Civil Revision No 3541 of 1993 15J the trial Court It cannot be said that the time originally Oxed in the judgment of the trial Court came to be revived when the decree of the trial Court was restored The effect of the restoration of decree of the trial Court by this Court would be that the plaintiff has to deposit the sum of Rs224001 but the time limit of 301971 fixed in the said decree cannot be said to be restored as it was impossiblefor performance after the decree of this Court Firstly the clock cannot be turned back and secondly that there was a stay by the Orst 1 AppellateCourt in respectof depositof the amount Since there was no time limit fixed by this Court therefore the petitionerscould 0 S depositthe amount in terms of Article 137 of the Limitation Act 1963 within three years from the date of decree of this Court I Alternatively the petitionershave depositedthe amount Z on 205 1983 though this Court restored the judgment of the trial Court on 1581982 Even if the time of 40 days as is intended to be tX flxed by the learned trial Court is said to be restored in terms of the judgment of this Court it is a fit case where the plaintiff should be C25 permitted to deposit the amount to satisfy the conditional decree Firstly the predecessorin4nterestof the petitionerswho sought to Z avoid the sale was a minor The property of the minor could not have m been sold by the father of the mlnor Such finding has been affirmed by this Court Therefore the benefit of the decree avoidingthe sale of minors share cannot be set at naught on the basis of technicalities when the plaintiff has fought for his rights upto the stage of second appeal Therefore in terms of Section 148 of the Code of Civil Procedure the petitioners have disclosed sufficient reasons for extension of time for depositof Rs224001 to satisfythe conditional decree grantedby the trial Court As per the judgmentsreferred to by the learned counsel for the petitioncrs the Court is possessedof the . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 47 1 Civil Revision No 3541 of 1993 161 jurisdiction to extend the period of deposit ltl respect of conditional decree The reasoninggivenby the learned ExecutingCourt that the periodfor execution of the decree is to be computedfrom the date of decree of the flrst AppellateCourt ie 311 1973 is incorrect The decree passedby the learned first AppellateCourt stands mergedwith the decree passedby this Court when the decree of the trial Court was restored It was so held by the Honble Full Bench of this Court ltl Smt Daya Wanti v Yadvindra Public School Patiala 1996 11PLR C 208 0 The decree of the trial Court stood mergedwith the decree of the first Appellate Court and that of the Orst Appellate Court 49 rnerged with the decree passedby this Court It is the decree of this Court which alone is executable Since no time was grantedby this Z Court therefore the execution which has been filed within 12 years 1S within the period of limitaticn in terms of Article 136 of the Limitation Act 1963 Still further even if the petitionershave not 025 depositedthe amount decreed by the first AppellateCourt but once the decree of the flrst AppellateCourt stood mergedwith the decree of 7 this Court then the decree of the flrst Appellatc Court cannot be Z referred to for any other purpose except for the purpose of examining QW the reasoninggivenby the flrst AppellateCourt while consideringthe aforesaid decree in second appeal Though the time grantedby the trial Court was almost 40 days but said time cannot be deemed to be incorporatedin the decree passedby this Court in the absence of any order of this Court In the absence of any periodOxed by this Court the decree holder could depositthe amount in terms of Article 137 of the Limitation Act 1963 within a periodof three years Therefore the order passed by the learned Executing Court suffers from patent illegalityand cannot be sustained in law . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 48 J 3 Civil Revision No 3541 of 1993 71 4J J 0 4 Consequently the pi esent revlSlOn petition is allowed The impugnedorder is set aside and the matter is remitted back to the learned Executing Court for further proceedings in accordance with la J 1HEMANT GUPTA J JUDGE September 2010 7 13 jo ds 1 L AA 1 0 IlO 1 I D I Z 2 Lr c8 m7 Z QW . uma 2012.07.31 15: 08 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document