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PETITIONER: DATTARAYA  S/O  KESHAV TAWALAY

       Vs.

RESPONDENT: SHAIKH MAHBOOB SHAIKH ALl & ANR.

DATE OF JUDGMENT: 24/10/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1970 AIR  750            1969 SCR  (2) 328  CITATOR INFO :  R          1975 SC1957  (2)  E          1989 SC2073  (12,17)

ACT: Code  of Civil Procedure (Act 5 of 1908), O.20, r.  14--Suit for  preemption decreed--Court directs deposit  of  purchase money  by a certain time Appellate Court stays execution  of decree--Purchase    money   deposited   after    the    time fixed--Effect.

HEADNOTE:     The  appellant had obtained a decree for  possession  of certain  lands in a pre-emption suit which he  had   brought against  the   respondents. The respondents’ appeal  to  the District  Court was dismissed. The District  Court  directed the  appellant to deposit purchase money by a  certain  date and  directed  the  respondents on the  deposit  to  deliver possession  of the property.  There was also a direction  in the  decree that in case the amount was not paid on the  due date  the  suit  shall  stand  dismissed  with  costs.   The respondents preferred a second appeal to the High Court  and pending  disposal of the appeal the respondents  prayed  for stay  of  the execution decree.  Before the date  fixed  for depositing  the  purchase money the High  Court  stayed  the execution  of the decree of the lower appellate court.   The appellant deposited the purchase price 3 days after the date fixed  stating that he could not deposit in time as he  fell ill.  Thereafter the High Court dismissed the second appeal, and  the appellant, obtained possession of  the  properties. The   respondents  applied  to  the  Executing   Court   for restitution  of properties on the ground that the  appellant had defaulted in depositing, the purchase money by the  date fixed by the lower appellate court’s decree.  The  appellant contended that the stay order made by the High Court in  the second  appeal prevented him from acting in accordance  with the terms of the lower appellate court’s decree, and in  any case the High Court had dismissed the second appeal and  the decree  holder  would get by necessary implication  a  fresh starting  point for depositing the purchase amount from  the Sate of the High Court’s decree.The Executing Court rejected the  claim of the respondents for restitution.This  decision

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was  affirmed, on appeal by the District Court.But the  High Court  in appeal, took the’ view that there was  default  on the  part  of the appellant in  depositing the  amount   and therefore   the   appellant’s   suit   stood       dismissed automatically  and the appellant was-not therefore  entitled to possession in enforcement of the pre-emption decree.     HELD: The appeal must be allowed.     A  decree in terms of 0.20 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 continue. [517 D, E]     The effect of the order of the High Court dismissing the second  appeal was to give by necessary implication a  fresh starting point 515 depositing  the  amount from the date of  the  High  Court’s decree  and  the appellant could have deposited  the  amount immediately   after  the  High  Court’s  decree.   But   the appellant  had deposited the amount before the date  of  the High Court’s decree and there was no default on the part  of the  appellant  in fulfilling the terms of  the  pre-emption decree. [517 F--G] Satwaji,  Balajiray  Deshamukh  v.  Sakharlal   Atmaramshet, I.L.R.  39 Bom. 175 and Sita v. Ramanth I.L.R. 28 Patna 371, approved.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION:  Civil  Appeal  No.  329 of 1966.     Appeal  by  special leave from the  judgment  and  order dated  October  11, 14, 1963  of the Bombay  High  Court  in Appeal No. 30 of 1962 from the Appellate Decree. D. Narsaraju and R.V. Pillai, for the appellant. M.S.K. Sastri and M.S. Narasimhan, for respondent No. 1. The Judgment of the Court was delivered by- Ramaswami,  J. This appeal is brought, by special leave,  on behalf of the .plaintiff against the judgment of the  Bombay High  Court dated October 11/14,  1963 in Appeal No.  30  of 1962  from  the  appellate  order  of  the  District  Court, Osmanabad  whereby the High Court reversed the  judgment  of the  lower  courts and declared that the appellant  was  not entitled to execute the decree for pre-emption and that  the respondents  were  entitled to be put in possession  of  the properties   of   which  they  were  dispossessed   in   the enforcement of the pre-emption decree.     The  appellant had obtained a decree for  possession  of certain  lands in a pre-emption suit he had brought  against the respondents.  The decree was made in March, 1945 and the appellant was directed to pay the consideration of Rs. 5,000 within  six months from the date of the decree on which  the appellant was to be put in possession of the suit lands.  In case  of default in depositing the sum within the  time  the plaintiff’s  suit was to be deemed to have  been  dismissed. The  respondents preferred an appeal to the  District  Court against  the  decree but the District  Court  confirmed  the decree  on  January 28, 1955.  The amount of Rs.  5,000  was

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deposited  in  Court by the appellant on December  20,  1954 within  the time granted in the trial court’s decree but  it was subsequently withdrawn by him under orders of the Court. While   dismissing  the  appeal  of  the   respondents   and confirming  the decree for pre-emption, the  District  Court directed the appellant to deposit the sum of Rs. 5,000 on or before  April 30, 1955 and directed the respondents on  such deposit to deliver possession of the properties.  There  was also  a direction in the decree that in case the amount  was not paid on the due date the suit shall stand dismissed with costs.  The decree was passed in conformity with O.20,  r.14 of  the Civil Procedure Code.  The respondents  preferred  a Second Appeal to the High Court and 516 pending  disposal of the appeal the respondents  prayed  for stay  of the execution decree.  On March 23, 1955  the  High Court passed the stay order in the following terms:                  "Stay  of execution of decree of the  lower               appellate  court is granted on condition  that               the appellant furnishes security to the extent               of the amount of costs." The order was received by the trial court on April 19, 1955. The appellant who was directed under the terms of the  lower appellate court’s decree to deposit the sum of Rs. 5,000  on or  before  April 30, 1955 made default  in  depositing  the amount  on that date. He, however, deposited the  amount  on May  2,  1955.  Since  the deposit  was  not  made  in  time according   to  the  lower  appellate  court’s   decree   an application  was filed along with the deposit  stating  that the  amount could not be paid in time as the appellant  fell ill.  The Second Appeal preferred by the respondents to  the High  Court  was dismissed on October 6, 1960 and  the  pre- emption  decree  in favour of the appellant  was  confirmed. Thereafter  on  February  3,  1961  the  appellant  flied  a Darkhast  for possession of the suit properties.  Since  the application  was  within a year of the decree  of  the  High Court  a warrant for possession was issued by the  Executing Court  without notice to the respondents and  the  appellant also obtained possession of a portion of the suit properties under  the  aforesaid  warrant.  On February  8,   1961  the respondents filed an application in the Executing Court  for restitution  of  the properties taken possession of  by  the appellant on the ground that the appellant had defaulted  in depositing the purchase money on or before April 30, 1955 as required  by  the  lower appellate court’s  decree  and  the Executing  Court  was in error in issuing  the  warrant  for possession  of  the suit properties.   The  application  for restitution  was  contested by the appellant on  the  ground that  the  stay order made by the High Court in  the  Second Appeal  prevented  him from acting in  accordance  with  the terms of the lower appellate court’s decree and in any  case the  High  Court  had dismissed the Second  Appeal  and  the decree-holder  would  get by necessary implication  a  fresh starting  point for depositing the purchase amount from  the date  of  the  High Court’s  decree.   The  Executing  Court rejected  the claim of the respondents for  restitution  and ’allowed  the  execution case of the appellant  to  proceed. Against  this order of the Executing Court  the  respondents went up in appeal to the District Court which dismissed  the appeal and confirmed the order of the Executing Court.   The respondents  thereafter took the matter in Second Appeal  to the  Bombay High Court which differed from the view  of  the District Court and allowed the appeal.  The High Court  took the view that there was default on the part of the appellant in depositing the amount and therefore the appellant’s

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517 suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the  pre- emption decree.     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 O.20,  r.  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  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.     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 Court’s 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 Court’s decree and there is  no default on the part of the appellant in fulfilling 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 518 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  court’s 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 court’s 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

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Second Appeal. The view that we have expressed is borne  out by  the  decision  of  the  Bombay  High  Court  in  Satwaji Balajiray Deshamukh v.  Sakharlal Atmatarnsher(1).  In  that case, the plaintiff brought a suit to recover possession  of property  as purchaser from defendants 1 to 6 and to  redeem the  mortgage  of  defendant  7.   The  first  court  having dismissed  the  suit, the appellate  court,  on  plaintiff’s 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 plaintiff’s 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 plaintiff’s  second appeal and the defendants’ cross objections were  dismissed. Within  six months from the date of the High Court’s  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  defendant’s  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 Court’s 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(2).  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.     For  the  reasons  expressed we hold  that  this  appeal should  be allowed, the judgment of the, Bombay  High  Court dated October (1) I.L.R. 39 Bom. 175.      (2) I.L.R. 28 Patna 371. 519 11/14,  1963 should be set aside and the application of  the first  defendant  made on February 8, 1961  for  restitution under  s.  144  of  the  Civil  Procedure  Code  should   be dismissed.  In  the  circumstances of this case  we  do  not propose to make any order as to costs of this appeal. T.P.                    Appeal allowed. 520