RA No.2-CII of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RA No.2-CII of 2009 and CR No.1645 of 1992 Date of Decision: 26.10.2009 Kanihya @ Kanhi (dead) through L.Rs. ..Petitioner Vs. Sukhi Ram & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.R.K.Gupta, Advocate, for the applicant/respondent. Mr.Rajiv Sehrawat, Advocate, for the petitioner. Vinod K.Sharma,J. (Oral) This application under Order 47 Rule I of the Code of Civil Procedure (for short the Code) has been moved for review of the order dated 4.12.2008 passed in CR No. 1645 of 1992. The plaintiff/petitioner had filed a suit for possession by way of pre-emption. The suit was decreed vide judgment and decree dated 11.8.1988 and the plaintiff/petitioner was directed to deposit a sum of RA No.2-CII of 2009 2 Rs.9214/- less 1/5th of pre-emption amount already deposited at the time of filing of the suit failing which it was ordered that the suit of the plaintiff would be deemed to have been dismissed. The plaintiff/petitioner failed to deposit the complete decretal amount within the stipulated period, and after about 3 years moved an application under section 148 of the Code for permission to deposit the balance sum of Rs.14/- on the plea that the delay in depositing the amount be condoned. The application was dismissed. The petitioner challenged the order by way of CR No. 1645 of 1992 titled Kanihya @ Kanhi Vs. Sukhi Ram & Ors. The petitioner had submitted before this court, that the less amount was deposited in view of the order of the learned court, therefore, no party can be allowed to suffer for the fault of the court. It was also submitted that on the application moved by the petitioner, the learned Sub Judge had passed a specific order directing the petitioner to deposit Rs.7,600/-. In view of these submissions, revision was allowed by this court by relying upon the judgment of this court in the case of Het Ram Vs. Rajinder Parshad, (1988-I) PLR 549. This review petition has been filed on the plea, that on inspection of file it has been revealed that there was neither any application nor any treasury challan for deposit of decretal amount as claimed by the petitioner. In the file of the Executing Court there was no order of the court for deposit of Rs.7600/-. It was also pointed out in the review petition that while decreeing the suit a specific order was passed directing the plaintiff/petitioner to deposit a sum of Rs.9214/- less 1/5th of pre-emption RA No.2-CII of 2009 3 money on or before 10.10.1988. Therefore, it was the responsibility of the plaintiff/petitioner to calculate the exact amount and it was not for the learned court to do so. Notice of the review petition was given. Reply has been filed. Strangely enough along with the reply the plaintiff/petitioner has placed on record the original application which was said to have been moved before the court on which an order was passed for deposit of Rs.7600/-. It is not understood how the judicial record is in custody of the plaintiff/petitioner. Even order passed by the learned Sub Judge was not to deposit the amount of Rs.7600/-. Reading of the order shows that it was on the request of the plaintiff/petitioner to deposit Rs.7600/-, that an order was passed by learned courts to the effect that the petitioner could deposit Rs.7600/- on his responsibility. The learned court had merely accepted the amount which the applicant wanted to deposit. Similarly a treasury challan in original was also kept by the plaintiff/petitioner. The learned counsel for the respondents is, therefore, correct to contend that there was no order on the application that the execution court directing the petitioner to deposit the less amount. In reply to the review petition it is admitted that there was no order on the file of the executing court directing to deposit less amount, as original juridical record was in custody of the plaintiff/petitioner. It is well settled law that right of pre-emption is piratical right which can be defeated by any lawful means, furthermore, it is not disputed that the decree was conditional, therefore, it was not open to the court to RA No.2-CII of 2009 4 have casually allowed the petitioner to deposit the money after expiry of the period stipulated in the decree. Once it is proved on record that the less amount deposited was not on account of the fault of the court, no error could be found with the judgment passed by the learned trial court in dismissing the application moved by the petitioner. The impugned order, therefore, deserves to be upheld as only reasons for allowing the revision was, that no party should be allowed to suffer for the fault of the court. For the reasons stated above, this review application is allowed, orders dated 4.12.2008 is recalled and the revision petition filed by the petitioner is dismissed by upholding the order passed by the learned executing court. 28.10.2009 (Vinod K.Sharma) rp Judge