http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: JOGDHAYAN

       Vs.

RESPONDENT: BABU RAM AND OTHERS

DATE OF JUDGMENT23/11/1982

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR   57            1983 SCR  (1) 844  1983 SCC  (1)  26        1982 SCALE  (2)1061  CITATOR INFO :  E          1989 SC2073  (17,18)  RF         1992 SC 109  (6)

ACT:      Constitution of  India 1950,  Article 136-Supreme Court exercise 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-pre-emption suit-Judgement-Decree holder  by bona  fide mistake fails to deposit 0.25 Paise, but makes good later with the permission of the  Court-Whether in view of the provisions of Order XX, Rule 14(1)(b) of the Civil procedure Code the suit should be deemed to  have been dismissed and consequently execution of the decree is impermissible-Whether the default could not be condoned.

HEADNOTE:      Appellant-plaintfull in  the pre-emption  suit  against the respondent  (vendee) and  Respondent 2  (Vendor)  got  a decree.  As   per  the  Trial  Court  decree  the  appellant deposited a  sum of  Rs. 15,500 as the price of the land and RB. 100  u tho  charges on account of registration and other expenses of  the dead. Respondent I (vendee) filed an appeal and the  Additional District Judge 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  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. He, however, made good  the short  deposit of 25 Paise on 28.10.1968 with the permission  of the  Court averring  that the omission to deposit 25  paise was  due to bona fide mistakes. The vendee held a  regular second  appeal  and  the  High  Court  while dismissing the  appeal directed  the  appellant  to  deposit within three  Months’ time, a further sum of Rs. 500 for the improvements made  to the land. The appellant deposited this sum within the time limit.      In the execution case filed before the executing court, the respondent  vendee Sled  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

25 Paise  within 15.4.1967  amounted to  deemed dismissal of the suit  itself and that the default could not be condoned. The executing  court by its order dt. 1.2.1969 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 the order of the executing Court, but with an application for exemption from filing the certified copy. The appellant was directed on 25.11.1969 to file the 845 certified copy  "as soon  as is  available".  Tho  appellant obtained a  certified copy A on June 3, 1970 and filed it in the High  Court on  July 17,  1970. The appellant filed r an application  on  July  17,  1970  under  section  5  of  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  single Judge and  the Execution second appeal thus stood dismissed. Hence the appeal after obtaining special leave of the Court.      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 of the  Code of Civil Procedure and in dismissing the appeal without going  into the  merit of  the matter. Under section 148 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.                                       [848-C-D, E-F, 850-B]      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  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. [849-E-F]      However, in view of the deposit of 25 Paise having been made, 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 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. Indeed, the  appellant   is  the   victim  of   Courts   craze   for technicalities of law at the cost of justice.                                      [845-H, 849-G.H, 850-A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  94-of 1972.      Appeal by  Special leave  from the  Judgment and  order dated the  23rd July,  1971 of  the Punjab  and Haryana High Court in Execution Second Appeal No. 1941 of 1969.      Uma Datta and Krishna Datta for the Appellant.      S.K. Mehta, P.N. Puri and M.R. Dua for the Respondent.      The Judgment of the Court was delivered by      BAHARUL ISLAM, J. In this appeal by special leave under Article 136 of the Constitution, the appellant is the victim

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

of Court’s  craze for  technicalities of  law at the cost of justice. This Court 846 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 Bot a decree. Respondent No. I was the vendee and respondent No. 2, who was the real brother of the plaintiff-appellant,  was the  vendor. The  suit was for pre-emption and  possession in  respect of some agricultural land. The  trial court  decreed the  suit, on payment of Rs. 15,500 as  the price  of the land and Rs. 100 as the charges on account  of registration  and other  charges of the deed. The appellant deposited the amount as directed by the Court.      3 Respondent  No. I  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 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.  He, however, made good the short deposit of 25 paise on 28. 10.1968 with the permission of the Court on the allegation that  the omission to deposit 25 paise was due to bona fide  mistake. Respondent  No. 1 filed a regular second appeal before the High Court of Punjab and 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 make the payment of the said sum of Rs.  500.00, failing  which, it  was directed,  the  suit would stand dismissed. The appellant deposited this sum to.. 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  No. 1 herein). The judgment-debtor filed an application  under order XX, rule 14(1)(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 deposited only a sum of Rs. 1836.00 within the due date and the amount fell short of 25 paise, and as such the execution proceedings 847 should be struck off. The appellant 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 Court,  by its order dated February 1, 1969, held  that the  short deposit of 25 paise was due to a bona fide mistake on the part of the degree 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  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 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 mistake and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

default could not be condoned.      5. 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 following order: E           "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 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. H      6. Hence this appeal by special leave. 848      7. 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 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 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.      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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

    This  provision   hardly   helps   him.   It   is   not understandable, how the counsel for the appellant could file ’true  copies’,   when  his  client  had  not  obtained  the certificate copy of the order tn question. 849      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. F      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 850 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.      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. 851