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PETITIONER: HARNAMA SINGH (DEAD) LRS. ON RECORD & OTHERS

       Vs.

RESPONDENT: SHRI HARBHAJAN SINGH

DATE OF JUDGMENT22/08/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. RAMASWAMY, K.

CITATION:  1992 AIR  109            1991 SCR  (3) 703  1992 SCC  Supl.  (1) 709 JT 1992 (1)   546  1991 SCALE  (2)497

ACT:     Code  of  Civil Procedure, 1908--Section 148  read  with Section  15(1), the Punjab Pre-emption Act and Article  136, Constitution  of  India, 1950--Suits  for  pre-emption--Dis- missed  under  Order  20,  Rule  14-Deposit  of  pre-emption amount--Extention  of time--Whether to be raised  in  appeal before the Supreme Court.     Constitution of India, 1950--Article 136--Appeal--Depos- it  of pre-emption amount--Whether to be raised  before  the Supreme Court.

HEADNOTE:     Three  brothers  executed four sale deeds  on  June  25, 1968, to respondent. The 4th brother, whose legal  represen- tatives are the appellants, filed four suits of  pre-emption against  the  vendee-respondent and those  were  decreed  on terms  of payment of pre-emption money on or  before  August 30, 1970.     The plaintiff-pre-emptors-appellants filed four  appeals before  the  District Judge for the reduction  of  the  pre- emption  money. On an application moved by  the  pre-emptors the time for deposit of the amount fixed under the decree by the Trial Court was extended till further orders.     The  appeals were rejected under Order 41 Rule 3 of  the Code of Civil Procedure as being insufficiently stamped  and not properly presented.     Before  hand, however on 26.10.1970, the  plaintiff-pre- emptors,  deposited  the  pre-emption amount  in  the  Trial Court.     The  pre-emptors  sought execution  of  the  pre-emption decrees. The vendee-judgment debtor raised objections  stat- ing  that the suits stood automatically dismissed  for  non- deposit of the pre-emption money within the time identically stipulated under the decrees. The objection was sustained by the Trial/Executing Court. 704     The appeal to the Appellate Court at the instance of the preemptors,  was allowed, permitting the execution  to  pro- ceed.     A  Single  Judge  of the High Court  in  further  appeal upheld  the  view of the District Judge,  but  the  Division

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Bench of the High Court allowed the Letters Patent  Appeals, upholding the objection made by the vendee-respondent,  that there were no decrees which could be executed, against which these appeals by special leave to this Court .were filed.     The  appellants contended that the controversy could  be determined on the anvil of Section 148 of the Code of  Civil Procedure by extending time by the Court, as it was  extend- able  when any period was fixed or granted by the Court  for the  doing  of any act prescribed or allowed by  the  Court, even  though  the  period originally fixed  or  granted  had already expired; that this Court should exercise its plenary power in the interests of justice to extend the time. Dismissing the appeals, this Court,     HELD:  1.  There is no law of pre-emption  permitting  a decree  to be drawn in terms of Section 15(1) of the  Punjab Pre-emption  Act.  Were  the Court to exercise  at  all  the discretions on the subject, the Court would in any event  be completing  the  process of decreeing the suits;  the  suits which have been held to fall down under Order 20 Rule 14  of the Code of Civil Procedure, tantamounting to their dismiss- al, and that too on present day when such decrees cannot  be passed. [707C-D]     2.  The objections of the vendee must  remain  sustained and  the pre-emptor-appellants must fail in the  event,  not getting their suits for pre-emption decreed. Decretal  money deposited by the appellants may be permitted to be withdrawn by them, if not already withdrawn. [707F-G]     Atarn  Parkash v. State of Haryana & Ors., [1986] 1  SCR 399, followed.     Jogdhayan v. Babu Ram & Ors., [1983] 1 SCR 844 and Jagar Dhish Bhargava v. Jawahar Lal Bhargava and Others, [1961]  2 SCR 918, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  2266-69 of 1979. 705     From  the  Judgment  dated 9.8.1978 of  the  Punjab  and Haryana High Court in L.P.A. Nos. 576 to 579 of 1975. Harbans Lal and M.V. Goswami for the Appellants. Iqbal Singh for the Respondent. The following Order of the Court was delivered:         These appeals by special Leave are directed  against the  common  judgment and decree of the Punjab  and  Haryana High Court passed in L.P.A. Nos. 576-79 of 1975.     Three brothers, by means of four sale deeds executed  on June  25,  1968,  sold some parcels  of  land  to  Harbhajan Singh-respondent  herein.  The 4th brother by  the  name  of Ujagar Singh, whose legal representatives are the appellants herein,. filed four suits of preemption ,against the  vendee and those were decreed on July 15, 1970, on terms of payment of  pre-emption  money on or before August  30,  1970.  Four appeals  were filed by the plaintiff-pre-emptors before  the District  Judge for the reduction of the pre-emption  money. On  an  application moved by the pre-emptors  the  time  for deposit  of the amount fixed under the decree by  the  Trial Court was extended till further orders. The appeals  finally were  rejected  under Order 41 Rule 3 of the Code  of  Civil Procedure  as  being insufficiently stamped  and  hence  not properly    presented.    Before   hand,    however,    ’the laintiff-pre-emptors all the same, deposited the pre-emption amount  in  the Trial Court, on their own,  on  October  26, 1970.

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   After  the rejection of their appeals,  the  pre-emptors sought execution of the pre-emption decrees which  attracted objections by the vendee-judgment debtor. The primary objec- tion raised was that the suits stood automatically dismissed for  non-deposit  of the preemption money  within  the  time identically  stipulated  under the questioned  decrees.  The plea of the vendee was based on the mandate of Order 20 Rule 14, Civil Procedure ’Code whereunder the Court when  decree- ing  the claim to pre-emption is required to specify in  the decree  on  or before which the pre-emption money  shall  be paid, if not already paid, and further if it is not so paid, the  suit  shall stand dismissed with  costs.  (Whatever  is relevant in Order 21 Rule 14 alone has been taken note  of). The  date  specified by the Trial Court as said  before  was August  30, 1970 and under the interim orders of the  Appel- late  Court the time for depositing the said money  was  ex- tended till 706 further  orders. Undeniably the Court never passed any  fur- ther orders in that regard and thus the time for  depositing the said money stood extended without any limit. The. objec- tion was sustained by the Trial/ Executing Court. On  appeal to  the Appellate Court at the instance of the  pre-emptors, the  District  Judge took .a contrary  view  permitting  the execution  to  proceed. A learned Single Judge of  the  High Court in appeal upheld the view of the District Judge, but a Division Bench of the High Court. In Letters Patent Appeals, reversed the District Judge as also the Single Judge uphold- ing  the objection by the vendee that there were no  decrees which could be executed.     We  have heard learned counsel for the appellant for  he alonewas present.     There has been a sea change in the law of pre-emption in the  States of Punjab and Haryana where from  these  appeals have  arisen. Whereas in Punjab the Punjab  Pre-emption  Act itself  has been repealed, in Haryana it  has  substantially been  chopped down by justicing. This Court in Atam  Parkash v. State of Haryana & Ors., [1986] 1 SCR 399 declared  ultra vires  section 15(1) of the Punjab Pre-emption Act,  as  ap- plicable  to  Haryana, whereunder certain relatives  of  the vendor had been given the right to pre-empt a sale of immov- able. property. The view of this Court and the present state of  law is not by any means insignificant or irrelevant  for judging the present matter and for resolving the controversy in hand. Rather its pervasive thought permeats the mind.     Learned  counsel for the appellants would have the  con- troversy determined on the anvil of Section 148 of the  Code of Civil Procedure, pleading for time to be extended by  the Court,  as  it  is extendable when any period  is  fixed  or granted by the Court for the doing of any act prescribed  or allowed  by  the Court, even though  the  period  originally fixed or granted has already expired. He has brought to  our notice that in the main matter when the appeal was  rejected by  the District Judge as being insufficiently stamped  time was asked from the District Judge to make good the deficien- cy  in  the stamp duty but that was rejected and  though  he concedes that the matter was not taken up in revision before the High Court, it is still contended that this Court should exercise its plenary power to extend the time in the  inter- ests  of justice and have the Court fee made good.  He  also concedes  that when the District Judge was asked  to  extend and  specify the time for deposit of the pre-emption  money, he had declined to exercise his discretion, so as to regula- rise payment, when the appellants had by themselves 707

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deposited the pre-emption money on October 26, 1970  before- hand,leaving the matter to be agitated before the  executing Court.  Likewise  it is contended that this  Court  can  and should  specify the time for deposit so as to regularise  it in exercise of powers under Section 148 C.P.C. He also high- lights that the mistake herein was that of the Courtand  for both the propositions he takes aid of Jogdhayan v. Babu  Ram & Ors., [1983] 1 SCR 844 and Jagat Dhish Bhargava v. Jawahar Lal  Bhargava and Others, [1961] 2 SCR 918. In any event  he concedes that for the later wrongful non-exercise of discre- tion  of  the District Judge, the matter was  not  taken  in Second  Appeal or Revision, as the case may be,  before  the High Court. We  have  pondered  over, the matter. Our  view  may  appear some-what slanting but we cannot disassociate ourselves from the canvass now spread, showing there is no law of  pre-emp- tion  permitting  a decree to be drawn in terms  of  Section 15(1) of the Punjab Pre- emption Act. Were we to exercise at all the discretions on the subject afore-mentioned we  would in  any  event be completing the process  of  decreeing  the suits;  the  suits which have been held to fall  down  under Order 20 Rule 14 of the Code of Civil Procedure, tantamount- ing  to  their dismissal, and that too on present  day  when such decrees cannot be passed. The High Court however, took the controversy in a different- light.  It  took the view that  the  insufficiently  stamped appeals be/ore the District Judge were no appeals in the eye of  law, as was contende don behalf of the vendee,  and  the view  of the District Judge in not extending time was  right as  it was rightly considered that the appeals had not  been entertained at all. Support was also taken for its  view by the  High  Court from the circumstance of the order  of  the Court extending time ex-parte, which conferred no obligation on  the vendee to treat the decree operative against him  as and  when the pre-emptors chose to deposit  the  pre-emption money.  The High COurt on this reasoning restored the  judg- ment  of the Trial/Executing Court,upholding the  objections of the vendee. Where the High Court arrived by following one way, we have been led to arrive by another. The end  result, however,  is  the  same that the objections  of  the  vendee mustremain sustained and the pre-emptor-appellants must fail in  the  event,not getting their suits for  pre-emption  de- creed. The appeals must thus inevitably fail and are  hereby dismissed.  Decreetal money deposited by the appellants  may be  permitted to be withdrawn by them, ii not already  with- drawn. No costs for there is no opposition. V.P.R.                                        Appeals   dis- missed. 708