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JOGDHAY:AN

'j BABU-, RAM AND OTHERS

• November 23, 1982

>'I(D.A. DESAI, BAHARUL: ISLAM AND V.'BALAKRlsHNAERADI; JJ.).

Constitution of' 'India, 1950, Article 13~Supreme ~Court extrcies Its diicretionary power underArticle 136of the" Constitution. to meet theendsof justice., or -to remove (m/scqrriage .. of .justice .perpetr'atedi:-jn a cose..;;).Prt!'oemptlon suit-r-Judgment-Decree holder by, bona .fide 'mistake fails 1o· t:!epsit i O:s~Pai:e,

but makes good.later wJth thepermission , of the. Court- WhttherAn.- Yiewvof tlte pro_visions, of Order X X,. Rule 14( 1)_( b) of the Civil Proctdure Code, .the, suit ..8hould be' deemed to have been dismissed and consequently execution of the decree .is impermi&sible-Whether the default could not be condoned.

,'Appellant-:plainfift'in the' pre-emption suit agail:ist 'therespondent 1 (velii:!ee).atWRespondent 2•(Vendor) g'Ot-a decree. As per the'Triai"G:ourf'decree tbe appellant deposited a.sum-of Rs. l 5sooas• the price XJf 1 be land: and ·Rs:' 100

aa', the chafges on account. of .~!)gistrationand olher l!.pcnses-.:Of.rthe-..deed.

Respondent 1 (vendee) filed. an appeal and the Additional , Disttict. JJ¥, Jge dismissed the app; al with 'the modification directing the appellant to deposit a sum of Rs. 1836-25 more in the trial Court·ror payment to the veildee, within 15.4.1967; in case of failure the.suit was directed to be dismissed .. On 14.4.1967, the appellant deposited Rs. 1836-00 instead of Rs; '1836-25. lie; however, made good the.· slroi-t.l deposit. of 25 PaiseJ on ~8;1 O; t 968 •with the. •permission 'Of the Gourt1averriog , that the omission. to ldrposit 125 paise-twas•: due -to • bona fide

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mistake. The vendee filed a., regular second,- appeal and the High Court• while ,..4

disissing the appeal directed the , appellant to deposit. within .tbree., months' _ time, a furfher sum Of Rs. 500 for the improvements made. to tile land. ~The

appellant; deposited this sum within the time limit.

In the execution case filed before the executing court, the respondent vendeefiled an application under .order XX Rule 14(1){b), raising an objection to the maintainability of the Execution •Petition on the plea that short' deposit of 25 Paise within 1~".4.1967 amounted.to deemed dismissal ofthe suit: itself and that the default could not be condoned. -The ·-executing court by its order dt. 1.21969 overruled the objections. The Judgment. debtor's appeal before the II Additional District Judge, was accepted holding that the provisions of order XX Rule 14(1)(b) C.P.C. were mandatory, the short deposit was not due to bona fide mistake and the default could not be condoned. The appellant preferred. a second execution appeal before the High Court, without a certified copy of tbe order of the executing Court, but with an application 'ror exemption from

6lin~ th~ rtifid copy, Ttl~ appell!lnt WllS directed on ~5.11.1969 to file tbf;

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loooiiAYAN v, BA~URAM (Baharul islam. J.)

S45

. certified copy .. as soon as it is availble... The appellant obtained a certified copy on June 3, 1970 and filed it in the High Court on July 17, 1970. The appellant. filed' an application on July, 17, 1970 under_ section S or the Limitation Act for , condonation of . delay~ The preliminary objection raised by the Respondent No, 1 that the appeal was barred by limitation, was aCcepted by the learned_ lingle Judge and the Exeootion second appeal thus stood dismissed. Hence the appeal after obtaining special leave of tho Coiut.

Allowing the appeal, the Court . '

HELD: 1. The High Court committed an error in not adverting to and not exercising its powers under Section 148 or the Code of Civil Procedure and in dismissing the appeal without going into the merit of the matter. Under_ sectionl48 C.P.C., the Court has enough power to enlarge time from time to time.

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. 1 .

[848-CD, E-F, 850-BJ

2. Under Order XX. rule 14 C.P.C. the plaintiff decree holder, in order to get delivery of possession of the land, has to fulfill two conditions : (i) he has to deposit in the court the prcbase 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

Coun. [849:E-Fl · .-

, However, in view of the deposit of 25 Paise haviog been mad~, under the orders of the court after the acceptance of the bona fide mistake, 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 _fro; n time to time u directed by the Ccurts, there wu absolutely no reason as to why he would not have deposited . ·, 2S Paise. unless it was due to a mistake. Indeed, the appellant is the victim of Coun•s.cra:zc for technicalities of law at the cost or justice.

[845H, 849-0-H,-850-A) ·

.CIVIL APPELLATE JuRisoioN: Civil Appeal No. 94 of 1972 •.

... ............... ._ . . . . ' Appeal by Special leave from the Judgment and Order dated ·:the 23rd July. 1971. of the Punjab and Hazyana High Court in.

-~ Execution Seeond Appeal No. 1941 oC 1969. . . -·· - .

.. . . . .· . . . . /.. . . . . . : Uma Datta and Krishna Dati for the Appellant~. ·

S.K. Mehta, P.N.Purl and M.K. D.uafor the Respondet:

' ' ----. . . ' · / The Judgment <:>f the Co_urt was delivered by .

. , . BAHAllUL ISLAM, J •.. In this appeal by special leave under Article 136 of the Constittiori, the appell'ant is the victim f Court's craze for technicalities of 'Jaw at the cost of justice. This Court

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846 SUPRt!MB COURT RBPORTS (19831 1 s.c.R.

exercises its discretionary power under_ Article 136 of the Constitution to meet the ends of justice or to remove miscarriage of justice perpetrated in , a case.

2. This appeal arises out of an execution proceeding.

The facts material for the purpose of disposal of this appeal may be stated thus. The appellant was the plaintiff in a pre-emption suit and got a decree. Respondent No, 1 was the vendee and respondent No.2, who was the real brother of the plaintiff-appellant, was then vendor. The suit was for pre-emption and possession in respect ofsome agricultural land. The trial cour.t decreed the suit on payment of Rs. 15,500 as the price of the land and Rs, 100 as th(1 charges on account of registration .and other charges of the deed.

The appellant deposited the amount as directed by the Court.

3 Respondent No. 1 filed an appeal and the Additional District Judge who heard and disposed of the appeal dismissed the appeal with the modification directing the appellant to deposit a sum of Rs. 1836.25 more in the trial court for payment to the vendee, within J 5.4.1967 ; in case of failure the suit was directed to be dismissed. On .14.4.1967, the appellant deposited Rs. 1836.00

istead of Rs. 1836.25. He, however, made good the short deposit of 25 paise on 28. 10.1968 with the permision of the Court on the allegation that the omission to deposit 25 paise was due to bona fide mistake. Respondent No. I_ filed a regular second appeal before the High Court of Punjab arid Haryana. The High Court affirmed the.decree of the first appellate Court but ordered, the appellant to deposit a further sum of Rs. 500.00 for the improvements made to the land. The appellant was given three months' time to mit.ke the payment of the said sum ofRs. 500.00, failing which, it was directed, the 'suit would stand dismissed. The appellant deposited, this sum too .within the time limit. .

4. The appellant on 28.10.1968 filed an execution case before the executing court to get possession of the suit land. The executing court issued notice to the judgment-debtor (respondent o. J herein).· The judgment-debtor filed an application under Order XX, rule l4(l)(b) of the Code of Civil Procedure on the ground, inter alia, that the appellant was directed to make the payment of the sum of Rs. 1836.25 within April 15, 1967, but the appellant had dep.osited only a sum of Rs. 1836:oo within the due date and the

amoutt fell short of 25 paise, and as such the execution proceedings

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JOODHAYAN v. BABtJRAM (lJaharu/ /slam, J.) 847

should be struck off. The appelJant filed a rejoinder-to the objection petition of the judgment-debtor. His plea was that the short deposit , of 25 paise was due to a bona fide mistake on his part, but that the shortage was made. good on October 28, 1968 after obtaining necessary permission from the trial Court. The executing ourt, by its order dated February . l; 1969, held that the short deposit of

25 paise was due to a bona fide mistake on the part of the decree-- holder and over-ruled the objection of the judgment-debtor, taking . , . the view that in the interest of justice 'the default on the part of the decree-holder should be condoned. The Judgment-debtor preferred an appeal in the Court of the lind . Additional District Judg, e, 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(l)(b) of the Code 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 p1istake and the default could not be condoned.

The appellant preferre_d a secon'd 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. ·. Th~ appeliant,,· however, made an applies.:

tion 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. Narula

. 25.11.69".

, 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 5 of the -Limitation ~Act for the condonation ofthe delay. The second appeal came up for hearing on March 25, 1971 before a single Judg~. Respondent No.

1 raised the priliminary objection that the appeal was barred by limitation. The objection was upheld by the learned single Judge; as a 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. . ..

6. Hence. this appeal b! special leve.

 [ l9f;3i l s.c.l\.

7. Shri S.K. Mehta, learned counsel appearing for Respondent No. 1 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 appelhite Court was not filed alongwith the memoran.dum-of appeal.

We do not find any substance in the

submission~ for the reason, as we have already stated above, that 1 the appe1lant was granted time by the High Court at the 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. thl;\t the copy was not filed at all, nor it is his submission that the Court had

I f L 1 - . . no power to' grant time to file the copy of the impugned order. As stated, above, the eopy was obtainedon 3.6.1'970~ and filed in court on 10~6.1970....:.....seven ·. days after the copy was obtained. So he filed the petition under Section S of the Limitation Act. There was no reason as to why the delay could not be condoned. Th~~:t apart, under Scctlon'l48"oft:lie Code"~ of' Civil Procedure, the Coutt has enough . power to enlarge time from time to time. Section '148 l>rovides'': •-:

D "W.here any period is fixed or granted by the Court

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t . for., the~ do.iilg .. of any act. prescribed or allowed by this

Code, tbe;.Gourt, may; in: its discretion,· from time to time;· enJarge. such period. even though the period originaily'fii"td.,

or1granted, may ba¥e expired."

The power.given to the Court under Section 148 is diScretionary and is-given for the purpose of securig the ends of jJstie> in case . of necessity. In our opinion, the High Court committed'aii'error

in not !ldvertig>to, and not exercising its powers under Section 148 C.P.C?an(f in'dfmis.sing the appeal without going to the merit of the matteri ·

Mr .• Mehta drew our attention to the second proviso to su~: rule:. (2)tof·Otder 41,- ruie (1) 'c.P.C. as amended 'by. Pbnjab, Haryana .. and Chandigarh.' The amendment. is in the f(, llowing'

. . ' ! words\;

"Provided further that the Court roay permit the appeal.to be filed with true . copies duly authenicatd ' by" an advocate as correct~" · ·. q ~- •

This provision hardly helps him .. It is not understandable, how. the counsel for the appeUant could file 'true c9pies', whe!l his client had not obtained thec:ertified 'copy~ of the order iii) questioh .

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JOGDhAYAN V. BABURAM (Baharu/ iilam, ],) 849

8. · The next question for .deision is whetHer 'the" first execution,·

A . . . ' . . "' . ' appellate Coutt was justified in holding that the ~'mount directed to

be deposited was not deposited as it fell short·by 25:paise. Order,,. 20; rule 14 CPC provides t · ~~

\ ' ''Decree. in:. pre-emption suii-(i):.. Where the Court J • . decrees a. claim to pre-emption'in respec~ of a particular .• '~

scale of property ang . the purchase money has not , been

paia into Court, the decree' shall~

1 • · : • . ,... '

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• • "( .r • •• • '"~. ~~~ 'I t*' {a). specify a day on or before which the purchase money shall be so paid, and

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(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 io .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 plainiff 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 ap.y, decreed against him and (ii) the deposit must be made on or before the date ftJed 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 25paise 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 nor due to any bona ·. fide mistake, but it was a default and tbereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding f the first executing lppellate Co.urt .that the non-deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while tlie

850 {1983] t s.c.a.

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 rst execution appellate Court ought to -have exercised ics discretionary powers under section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original executing Court.

9. In the result. we allow the appeal with costs, set aside the orders of the High Court as well as the first execution appellate

Court and restore the order of the original executing Court.

S.R.

Appeal allowed.

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