Allowed

Jogdhayan v. Babu Ram and Others

Supreme Court23 Nov 19821982 INSC 85 · [1983] 1 S.C.R. 8441982 INSC 85

Case brief

AI extract

What is this about?

A pre-emption decree holder failed to deposit purchase money by 25 paise within the time limit but made good the shortfall later. The executing appellate court dismissed the suit as deemed dismissed, finding the default not due to bona fide mistake. The Supreme Court allowed the appeal, found the mistake bona fide, and directed exercise of discretion to condone the delay.

What did the court decide?

High Court and first execution appellate Court orders set aside; original executing Court order restored; execution of decree to proceed.

Jogdhayan versus Babu Ram and Others — Execution and Attachment | Supreme Court (1983)

¶1

.A
i\ 844
JOGDHAY:AN
v.
'j BABU-, RAM AND OTHERS
. .B

¶2

• November 23, 1982

¶3

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

¶4

·Constitution of' 'India, 1950, Article 13Supreme Court · extrcies Its diicretionary power under··Article· 136·of the" Constitution. ·to ·meet the·endsof 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:sPai:e, but makes good.later wJth the- permission ,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_ 0 impermi&sible-Whether the default could not be condoned.

¶5

.-)
<br>

¶6

,'Appellant-:plainfift'·in the' pre-emption suit agail:ist 'the·respondent 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 5soo··as• ·the ·price XJf 1 be land: and ··Rs:' 100 aa', the chafges on account. of .!)gistration~and 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 E 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 mistake. The vendee filed a.,regular second,- appeal and the High Court• while ,..4 F. 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.

¶7

In the execution case filed before the executing court, the respondent vendee·filed 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 G , of that 25 the default Paise within could 1~".4.1967 not be amounted.to condoned. -The ·-executing deemed dismissal court ofthe by its suit: itself order and 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 H 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;

¶8

	loooiiAYAN_v,BA~URAM(Baharulislam._J.) S45
	. certified copy..as soonasit isavailble...The appellant obtained a certified copy ·onJune3, 1970and filed itinthe HighCourtonJuly17, 1970.The appellant. filed' · an·applicationonJuly,17, 1970under_ section_S_orthe LimitationActfor , condonationof.delayThe preliminary objection raised by the Respondent No,1that the appeal was barredbylimitation, was aCcepted by the learned_ lingle Judgeandthe Exeootion second appeal thus stood dismissed. Hence theappeal after obtaining special leaveofthoCoiut. Allowing the appeal, theCourt.^{· ·'}	A B
. . •.	HELD:1.The HighCourtcommittedanerrorinnotadvertingto andnotexercisingits powers underSection148orthe CodeofCivil Procedure· andindismissing the appeal without going into the meritofthe matter.Under_ sectionl48 C.P.C., theCourthas enough power to enlarge time from time to time. The power giventotheCourtunder section148,isdiscretionarY and is givenfor the purPoseofsecuring the endsofjustice in caseofnecessity. 1 . [848-CD,E-F,850-BJ	C·
•	_2._UnderOrderXX.rule14C.P.C. the plaintiff decree holder,inorder togetdeliveryofpossessionofthe land, hastofulfill two conditions :(i)he has ·todepositinthe court theprcbasemoney . together with the cost,ifany decreed . against him.and(ii)the . deposit mustbemadeonorbefore the date fixedbythe Coun.[849:E-Fl · · .- ,However,inviewofthe deposit·of_25_Paise haviogbeenmad,under the ordersofthe court after the acceptanceofthebonafide mistake, the findingof the first executing appellatecourtthatthe non-deposit could notbedueto . ' anybonafide mistake is absolutely untenable for the reasonthatwhile the appellant has depositedin·totalRs.17,936.00_fro;ntimetotime u directedby the Ccurts, therewuabsolutelynoreason as towhy·he wouldnothave deposited . ·,_2S_Paise. unlessitwasduetoamistake. Indeed, the appellantisthe victim ofCoun•s.cra:zcfortechnicalitiesoflawatthe costorjustice. . [845·H, 849-0-H,-850-A) ·	D E
-~	·.CIVILAPPELLATEJuRisoi~oN:· Civil Appeal No.94of1972•. .................. ._ . . . . · ' AppealbySpecial leave fromtheJudgmentandOrderdated ·:the23rd July.1971.ofthe PunjabandHazyanaHighCourt in. Execution Seeond Appeal No.1941_oC_1969. . .-·· - .	F
	.... . .· ... . /.. .... . _: Uma Datta_and_Krishna Dati_fortheAppellant~.· S.K. Mehta, P.N.·Purl_and_M.K. D.uafor_theResponde~t: ·' ' ----.. . ' · ·/_TheJudgment<:>ftheCo_urtwasdeliveredby. . , . BAHAllUL ISLAM,J•..Inthis appealbyspecial leave under ·Article 136oftheConstittiori,theappell'ant is the victimfCourt's crazefortechnicalitiesof'Jawatthecostofjustice. ThisCourt	G '. H

¶9

(19831 1 s.c.R.

¶10

846 SUPRt!MB COURT RBPORTS

¶11

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.

¶12

This appeal arises out of an execution proceeding. The facts material for the purpose of disposal of this appeal may be ·B ·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 of- some 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 .c charges on account of registration .and other charges of the deed. The appellant deposited the amount as directed by the Court.

¶13

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 D 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 E 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 J 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. .

¶14

The appellant on 28.10.1968 filed an execution case before the executing court to get possession of the suit land. The executing G 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 H 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

¶15

--~ \

¶16

']-. -·

¶17

- ~--	JOODHAYAN_v.BABtJRAM(lJaharu//slam,_J.) 847 should be struck off. The appelJantfileda rejoinder-to the objection petitionofthe judgment-debtor. His pleawasthat the short deposit , of25paise was due to a bona fide mistake onhispart, but that the shortage was made. good on October 28,1968after obtaining necessary permission from the trial Court. The executing~ourt, byits order· dated February .l;1969,held that the short depositof _25_paise was duetoa bonafidemistakeonthe partofthe decree-- holder and over-ruled the objectionofthe judgment-debtor, taking . the view that in the interestofjustice'thedefaultonthe partofthe decree-holder should be condoned. The Judgment-debtor preferred anappealinthe Courtofthelind. Additional District Judg,e,who, byhis order dated October24,1969set aside the orderofthe execut- ing· court. He held that the provisionsofOrder20,rule 14(l)(b)of the CodeofCivil Procedure were mandatory, andassuchthesuit shouldbedeemed to have stood dismissed. He also held thatthe short depositof25.paise wasnoton accountofp1istake and the default couldnotbe condoned.	A 8 , . c '
i	S. The appellant preferre_dasecon'd execution appeal, being . Execution Second Appeal No.1941of1969in the High Court. The appeal was however presented without a certified copyof'the order ofthe executing Court.·.Th~appeliant,,· however, made an applies.: tion for dispensing with the filingofthe certified copy.· The High Court while admitting the appeal passed the following order : ·• Admitted. Certified copytobefiled as soon as_it_is available.,....................'..........................................." . - "' . Sd/- R.S. Narula . 25.11.69".	0 E· F
,. -,	, The appellant obtained the certified copy.onJune_3,1970 and filed itin the High Court on June10,1970. The appellant filedan· applicationonJuly 17, 1970 under section_5_ofthe -LimitationAct· for the condonationofthedelay. The second appeal cameupfor hearing on March_25,_1971before a singleJudg.RespondentNo. 1 raised the priliminary objection that the appeal was barredby limitation. The objection was upheld by the learned singleJudge; asa result he dismissed the execution second appeal filedby"the ·appellant herein. The appellant prayed for-leavetoappeal under Letters Patent. 'The prayer was also rejected. . .. 6. · Hence. this appealb!specialle~ve.	G} H

¶18

· [ l9f;3i l s.c.l. A 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, that¹ 8 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 no power was not to' grant filed I at all, nor it is time f L to file the 1 his copy submission that the Court of the impugned - order. . had . As stated,above, the eopy was obtained- on 3.6.1'970~ and filed in court c 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 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." I. E· 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 · · . . F Mr .• Mehta dre·w 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; . . ' ! I . "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 the·c:ertified 'copy of the order iii) questioh .

¶19

' ..

¶20

. . . . ·' . . ~ ..

¶21

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

¶22

,l	8.· · The next question for.deisioniswhetHer'the" first execution,· . . '.."' .' appellate Coutt was justified in holdingthat·the·'mountdirectedto be·deposited·wasnot deposited as itfellshort···by 25:paise. Order,,. 20; rule14CPC providest · · · ~~ <br>' ''Decree.in:.pre-emptionsuii-(i):..Where·theCourt_J• . decreesa.claim to pre-emption·'inrespecofaparticular.•' scaleofproperty ang . the purchase money hasnot,been paia intoCourt,thedecree'shall 1 • · · : · • .,... '· - • : - c·· •~• "( .r_ • •• • '". ~~~ 'I ~t*' {a).specify· a dayonorbefore which the· purchase money shallbeso paid, and	A . · B
ry-··.. /	--~ f • (c)direct. that on payment into Courtofsuch purchase money, together with the costs (if.any) decreed against the plaintiff, onorbefore the day referredtoio .clause (a), the defendant shall deliver possessionofthe property to the plaintiff, whose title thereto shall be deemedtohave accrued from the dateofsuch payment, but. that,ifthe purchase money and the costs (if any) are not so paid, the ·suit shallbedismissed with costs.	D
	(2) ...................................................................	E
	Under Order 20, rule14CPC, theplain~iffdecree-holder, in ordertoget deliveryofpossessionofthe land, has tofulfiltwo conditions ;(i)he hastodeposit in Court. the purchase' money together with the cost,ifap.y,decreed against him and·(ii)the deposit must be madeonor before the date ftJedbythe Court. .	F
	Here the admitted position is that the .appellant deposited the· entire amountofpurchase money together with the costs decreed against him, less 25·paise within the time fixed by the Court and25 paise too was deposited, but · beyond time. The executing Court held that the short depositwas.duetoa bonafidemistake, while the executing appellate Court held that it wasnorduetoany bona ·.fidemistake, but it was a default and tbereby the executing appellate Court deprived the decree-holderofthe legitimate fruitsofthe decree heobtained in all the Courts. The finding~fthe first executing lppellate Co.urt .that the non-deposit could not be due to any bona fidemistake,isabsolutely untenable for the reason that while tlie	G H

¶23

{1983] t s.c.a.

¶24

850

¶25

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 8 by the original executing Court.

¶26

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.

¶27

¶28

........ ' .
S.R. Appeal allowed.
·,
··-

Jogdhayan v. Babu Ram and Others

Case brief

What is this about?

What did the court decide?

Jogdhayan v. Babu Ram and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Board of Trustees of the Port of Bombay versus Dilipkumar Raghavendranath Nadkarni and Others

Roop Lal Singh versus Nachhattar Singh

Shradha Devi versus Krishna Chandra Pant & Others

Smt. Kanwal Sood versus Nawal Kishore and Another

Food Inspector, Municipal Corporation, Baroda versus Madanlal Ramlal Sharma and Another

Dr. Asim Kumar Bose versus Union of India & Others