Case: Jogdhayan Vs. Babu Ram and Others

was however presented without a certified copy of the order of the executing Court. The appellant, however, made an application for dispensing with the filing of the certified copy. The High Court while admitting the appeal passed the following order:"Admitted. Certified copy to be filed as soon as it is available .................................. "Sd/- R.S. Narula25.11.69".4. The appellant obtained the certified copy on June 3, 1970 and filed it in the High Court on June 10, 1970. The appellant filed an application on July 17, 1970 under section S of the Limitation Act for the condonation of the delay. The second appeal came up for hearing on March 25, 1971 before a single Judge. Respondent No. I raised the preliminary objection that the appeal was barred by limitation. The objection was upheld by the learned single Judge; asa result he dismissed the execution second appeal filed by the appellant herein. The appellant prayed for leave to appeal under Letters Patent. The prayer was also rejected.5. . Hence this appeal by special leave.6. Shri S.K. Mehta, learned counsel appearing for Respondent No. I submitted that the execution appeal filed by the appellant in - the High Court was incompetent as the certified copy of the impugned order of the lower appellate Court was not filed alongwith the memorandum of appeal. We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at t he time of the admission and was allowed to file the certified copy "as soon as it is available." It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970- seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of the Code of Civil Procedure, the Court has enough power to enlarge time from time to time. Section 148 provides:"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court, may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."The power given to the Court under Section 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers under Section 148 C.P.C. and in dismissing the appeal without going to the merit of the matter.7. Mr. Mehta drew our attention to the second proviso to subrule of Order 41, rule (1) C.P.C. as amended by Punjab, Haryana and Chandigarh. The amendment is in the following words:"Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct."This provision hardly helps him. It is not understand able, how the counsel for the appellant could file true copies, when his client had not obtained the certificate copy of the order to question.8. The next question for decision is whether the first execution A appellate Court was justified in holding that the amount directed to be deposited was not deposited as it fell short by 25 paise. Order 20, rule 14 CPC provides:"Decree in pre-emption suits Where the Court decrees a claim to pre-emption in respect of a particular scale of property and the purchase money has not been paid into Court, the decree shall-(a) specify a day on or before which the purchase money shall be so paid, and(c) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs if any) are not so paid, the suit shall be dismissed with costs.(2) .............................................Under order 20, rule 14 CPC, the plaintiff decree-holder, in order to get delivery of possession of the land, has to fulfil two conditions, (i) he has to deposit in Court the purchase money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court.Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was . due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non- deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17, 936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148 CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court.

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

Explanation:
1[ds]We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at t he time of the admission and was allowed to file the certified copy "as soon as it is available." It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970- seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of theCode of Civil Procedure, the Court has enough power to enlarge time from time tothe admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was . due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non- deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17, 936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court.