Civil Revision No. 4172 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 4172 of 2010 Date of decision : March 13, 2012 Gaje Singh and others ....Petitioners versus Chamela Ram and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Palli, Senior Advocate with Mr. Sunil Garg, Advocate, for the petitioners Mr. Sanjay Mittal, Advocate, for respondent nos. 1 and 2 None for respondent no. 3 L.N. Mittal, J. (Oral) Decree holders Gaze Singh etc. have invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to assail order dated 28.4.2010, Annexure P/1 passed by learned executing court i.e. learned Additional Civil Judge (Senior Division), Narwana thereby dismissing application/execution of decree holders for permission to redeposit preemption money and for delivery of Civil Revision No. 4172 of 2010 -2- possession of the suit land in execution of decree and thereby allowing objections preferred by respondents no. 1 and 2/judgment debtors (JDs). Suit filed by petitioners against respondents for preemption of sale of the suit land was decreed by trial court vide judgment and decree dated 15.12.1982, Annexure P/2 directing the plaintiffs-preemptors to deposit the preemption money on or before 4.2.1983. Petitioners accordingly deposited the preemption money on 3.2.1983. First appeal preferred by respondents no. 1 and 2/vendees was dismissed by District Judge vide judgment and decree dated 8.8.1984. Regular Second Appeal (RSA) No. 2646 of 1984 preferred by vendees – respondents no. 1 and 2 herein was dismissed by this Court vide order dated 27.8.2004, Annexure P/4 when counsel for preemptors was not present and only counsel for vendees/appellants was present. During pendency of aforesaid regular second appeal, this Court passed interim order dated 17.12.1984 staying dispossession and permitting the preemptors to withdraw the entire preemption money without prejudice to their rights in the appeal. Accordingly, the petitioners withdrew the preemption money on 11.9.1985. After dismissal of the second appeal, petitioners moved application on 5.11.2005 in the trial court for permission to redeposit the preemption money. Respondent nos. 1 and 2 filed reply Annexure P/6 Civil Revision No. 4172 of 2010 -3- alleging interalia that they had filed special leave petition in the Hon'ble Supreme Court against order dated 27.8.2004 of this Court and the Hon'ble Supreme Court had ordered status quo regarding possession vide interim order dated 16.12.2005 and therefore, preemptors cannot be permitted to redeposit the preemption money. In view of this submission of respondents no. 1 and 2, aforesaid application moved by the petitioners on 5.11.2005 was adjourned sine-die by the trial court vide order dated 9.2.2008 till disposal of the special leave petition. Ultimately, the Hon'ble Supreme Court vide order dated 12.1.2009 dismissed the special leave petition. Thereafter petitioners filed application on 27.1.2009 for redeposit of the preemption money and for execution of the decree by delivery of possession of the suit land. Respondents no. 1 and 2 filed objections dated 9.5.2009 contending that the petitioners had failed to deposit the preemption money within 51 days from the dismissal of RSA on 27.8.2004 and therefore, the decree has become inexecutable. Learned executing court vide impugned order Annexure P/1 upheld the aforesaid stand of respondent nos. 1 and 2 and dismissed the application/execution filed by the petitioners and allowed objections of respondents no. 1 and 2/JDs. Feeling aggrieved, decree holders have filed this revision petition. Civil Revision No. 4172 of 2010 -4- I have heard learned counsel for the parties and perused the case file. Counsel for the petitioners contended that preemption money was deposited by the petitioners in time pursuant to decree of the trial court and the same remained deposited even during pendency of first appeal but was withdrawn pursuant to interim order passed in second appeal. It was contended that no period was specified by this Court for redeposit of preemption money while dismissing the RSA vide order dated 27.8.2004 and therefore, the petitioners within limitation period for filing the execution petition have right to execute the decree by redepositing the preemption money. It was also contended that interim order dated 16.12.2005 from the Hon'ble Supreme Court was obtained by respondents no. 1 and 2 on the plea that preemptors had withdrawn the preemption money during pendency of the appeal before the High Court, but ultimately the Hon'ble Supreme Court dismissed the SLP and therefore, petitioners have right to redeposit the preemption money. It was also contended that in reply to earlier application dated 5.11.2005 moved by the petitioners to redeposit the preemption money, respondents no. 1 and 2/JDs in their reply Annexure P/6 themselves pleaded that petitioners could not be permitted to redeposit preemption money on account of pendency of SLP and interim order granted in SLP and therefore after dismissal of SLP, petitioners have Civil Revision No. 4172 of 2010 -5- right to redeposit the preemption money. On the other hand, counsel for respondents no. 1 and 2 contended that trial court had granted period of 51 days to the preemptors for depositing the preemption money and therefore, on dismissal of second appeal by this Court, the petitioners had to redeposit the preemption money within 51 days of the dismissal of RSA. In this context, it was pointed out that in decree framed by this Court in RSA, it was stipulated that decree of the lower appellate court affirming the decree of the trial court stood affirmed and it would mean that preemption money had to be deposited within period of 51 days as originally given by the trial court for deposit of preemption money. It was also contended that Rattan Singh petitioner no. 3 while appearing in the witness box stated that they learnt of dismissal of RSA nine months after it was dismissed, but application to redeposit the preemption money was not moved even thereafter within 51 days of the date of knowledge and therefore, impugned order of the executing court is justified. It was also contended that if preemption money is not deposited within stipulated period, the suit stands dismissed and the decree becomes inexecutable. Reliance in support of this contention has been placed on various judgments namely Dattatraya vs Shaikh Mahaboob Shaikh Ali and another, 1970 AIR (SC) 750; Dinesh minor son of Rama Nand and another vs. Lal Singh and others, 2007(2) RCR (Civil) 864; Sulleh Singh Civil Revision No. 4172 of 2010 -6- vs. Sohan Lal, 1975 PLJ 400; Naguba Appa vs. Namdev, 1954 AIR (SC) 50; Harnama Singh (dead) LRs. On record and others vs. Harbhajan Singh, 1992 Supp (1) SCC 709; Smt. Parmeshri vs. Naurata, AIR 1984 P&H 342; Anoop Singh vs. Smt. Harbans Kaur and another, 1978 PLJ 393; Jagtar Singh and another vs Kartar Singh and others, 1979 PLJ 205; Resham Singh and others vs. Manmohan Singh Kent and others, AIR 1985 P&H 193; Pandurang and another vs. Saraswatibai and another, AIR 1976 Bombay 369; Panni Lal vs. Daya Ram, 1985(2) PLR 157 and Ram Mehar vs. Udmi Ram and others, 2006(3) RCR (Civil) 220. I have carefully considered the rival contentions. There is no dispute with the legal proposition laid down in the judgments cited by counsel for respondents no. 1 and 2 that if preemption money is not deposited within the period directed by the court, the preemption suit shall stand dismissed and the decree would become inexecutable. However, in the instant case, the petitioners deposited the preemption money within stipulated period as per direction of the trial court. The petitioners did not withdraw the preemption money even during pendency of first appeal inspite of interim stay order. However, during pendency of second appeal, which took 20 years to decide, the preemption money was withdrawn pursuant to interim order passed by this Court. While finally disposing the Civil Revision No. 4172 of 2010 -7- second appeal, this Court vide order Annexure P/4 did not specify any time period for redeposit of the preemption money. Consequently, it cannot be said that the petitioners had to redeposit the preemption money within 51 days of dismissal of the second appeal only because the trial court had granted period of 51 days for deposit of the preemption money. The same period cannot be imported into order Annexure P/4 passed by this Court when no such direction was given by this Court while dismissing the second appeal. Consequently, the petitioners had to deposit the preemption money within limitation period for execution of preemption decree. It is also significant to notice that respondents no. 1 and 2 in their SLP obtained interim order on the only contention that the preemption money deposited by the petitioners had been withdrawn during pendency of appeal in this Court. However, ultimately, the said SLP was dismissed by the Hon'ble Supreme Court. The aforesaid interim order was passed on 16.12.2005. Consequently, respondents no. 1 and 2 took the same plea before the Hon'ble Supreme Court that preemption money which was deposited earlier had been withdrawn later on and had not been redeposited, but this plea did not find favour with the Hon'ble Supreme Court and ultimately the SLP was dismissed. The petitioners had already moved application on 5.11.2005 to redeposit the preemption money but the said Civil Revision No. 4172 of 2010 -8- application was adjourned sine die till decision of SLP on plea of respondents no. 1 and 2 themselves in their reply Annexure P/6 regarding interim order passed by the Hon'ble Supreme Court in SLP. Immediately after dismissal of SLP vide order dated 12.1.2009, the petitioners again moved application on 27.1.2009 for redeposit of the preemption money. Consequently, it cannot be said that there has been any default on the part of the petitioners in redeposit of the preemption money. Counsel for respondents no. 1 and 2 conceded that in none of the judgments cited by him, the proposition as involved in the instant revision was involved i.e. the trial court had specified time for deposit of preemption money but in appeal, no such time was specified and even in such situation, the period granted by the trial court had to be imported in the order of the appellate court by implication. In my considered opinion, on principle of law, the period stipulated by the trial court cannot be imported in the order of the appellate court. Even on principle of justice, equity and good conscience, the petitioners are entitled to succeed because they fought litigation for almost three decades and now they are sought to be deprived of the fruits of the decree as upheld upto Hon'ble Supreme Court, by raising objection that the preemption money was not redeposited within time although no period was specified by this Court for redeposit of the preemption money while Civil Revision No. 4172 of 2010 -9- dismissing the second appeal. For the reasons aforesaid, I find that impugned order Annexure P/1 passed by the executing court is unsustainable. The petitioners are entitled to redeposit the preemption money and to execute the decree passed in their favour as affirmed upto Hon'ble Supreme Court. Accordingly, the instant revision petition is allowed. Impugned order Annexure P/1 passed by the executing court is set aside. Objections preferred by respondents no. 1 and 2 are dismissed. Petitioners are permitted to redeposit the preemption money in the trial court/executing court within two months from today, failing which they shall not be entitled to execute the decree. On deposit of the amount within the said period, the petitioners shall be entitled to execute the decree. Parties are directed to appear before the executing court on 2.4.2012. ( L.N. Mittal ) March 13, 2012 Judge 'dalbir '