Case: Dattaraya S/O Keshav Tawalay Vs. Shaikh Mahboob Shaikh All &amp; Anr

appellant in depositing the amount and therefore the appellants suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the pre-emption decree.3. The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment-debtors and not a stay with regard to the deposit of purchase price by the decree-holder. In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.4. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.But the appellant has deposited the amount on May 2, 1955, long before the date of the High Courts decree and there is no default on the part of the appellant in fulfilling of the terms of the pre-emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial courts decree, what was its intention? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial courts decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal. The view that we have expressed is borne out by the decision of the Bombay High Court in Satwaji Balajiray v. Sakharlal Atmaramshet, ILR 39 Bom 175 = (AIR 1914 Bom 132 ). In that case, the plaintiff brought a suit to recover possession of property as purchaser from defendants I to 6 and to redeem the mortgage of defendant 7. The first court having dismissed the suit, the appellate court, on plaintiffs appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1 to 6 of a certain sum within six months from the date of its decree and then to redeem defendant 7, and on the plaintiffs failure to pay within six months from the date of the decree he should forfeit his right to recover possession. All parties being dissatisfied with the decree, the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections. The High Court confirmed the decree and the plaintiffs second appeal and the defendants cross objections were dismissed. Within six months from the date of the High Courts decree the plaintiff deposited in court the amount payable by him and applied for execution. Defendant 7 contended that the plaintiff not having complied with the terms of the decree of the first appellate court, his right to recover possession in execution was forfeited. The lower courts upheld the defendants contention and dismissed the darkhast. On second appeal by the plaintiff, the High Court reversed the decree of the lower court and held that the time for executing a decree nisi for possession ran from the date of the High Courts decree confirming the decree of the lower court, for what was to be looked at and interpreted was the decree of the final appellate court. There is also a decision to the similar effect in Sita v. Ramnath, ILR 28 Pat 371 = (AIR 1949 Pat 514 ). For the reasons already given we hold that the decree of the High Court in Second Appeal should be construed in the present case as affording by implication a fresh starting point to the plaintiff for making payment to the Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.4. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.But the appellant has deposited the amount on May 2, 1955, long before the date of the High Courts decree and there is no default on the part of the appellant in fulfilling of the terms of the pre-emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial courts decree, what was its intention? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial courts decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal.