Case: Jogdhayan Vs. Babu Ram and Others

The Facts Material No. I Filed An Appeal The Additional District Judge Who Heard Disposed Of The Appeal Dismissed The Appeal The Modification Directing TheTo Deposit a Sum Of Rs. . More In The TrialJudgment -debtor preferred an appeal in the Court of the IInd Additional District Judge, who, by his order dated October 24, 1969 set aside the order of the executing court. He held that the provisions of order 20, rule 14(1)(b) of theCode of Civil Procedure were mandatory, and as such the suit should be deemed to have stood dismissed. He also held that the short deposit of 25 paise was not on account of mistake and the default could not be condoned.The appellant preferred a second execution appeal, being Execution Second Appeal No. 1941 of 1969 in the High Court. The appeal 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 followingCertified copy to be filed as soon as it is available .................................. "Sd/- R.S.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.Hence this appeal by special leave.

Reasoning: 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.