DES RAJ Vs. VINOD KUMAR LAL CHAND

JUDGEMENT

(1.) THIS execution second appeal has been placed before us in view of the order of harbans Singh, Acting, C. J. , dated the 17th July. 1969 The matters which the learned Judge wanted to be settled by a larger Bench, in our opinion, do not arise as will presently appear from the narration of facts. As the whole case has been placed before us. We have dealt with it and disposed of the same.

(2.) THE land in dispute was sold by Smt. Rallo Devi, the grandmother of the present respondent. This sale was preempted by Vinod Kumar who was the grandson of the vendor. His suit was decreed by the trial Court on the 31st of August. 1962. with regard to two-third of the land on payment of Rs. 19,333-33. A direction was given in the decree that the balance of the pre-emption money had to be deposited by the 10th of November, 1962. The money could not be deposited by the 10th of November, 1962, because the Treasury was closed and, in fact, the deposit was made on the next working day, that is, the 12th of November. 1962. Against the decree, that was prepared, two appeals were preferred: one by the plaintiff-pre-emptor and the other by the defendant-vendee. The vendee's claim in appeal before the learned District Judge was that the pre-emption should have been allowed on payment of Rs. 29,000 and not on Rs. 19,333-33, as was done by the trial Court. On the other hand, the pre-emptor's claim in appeal was that he was entitled to pre-empt one-third of the land. The learned District Judge allowed the pre-emptor's appeal and dismissed the vendee's appeal, with the result that a decree in favour of the pre-emptor was passed on payment of Rs. 29,000. The pre-emptor was given time to make good the balance to make up the amount of Rs. 29,000 by the 6th of. August, 1968. This was done within time. Against the decision of the learned District Judge, the vendee appealed. He contested the decision of the lower appellate Court on the ground, that possession by pre-emption could only be allowed to the extent of two-third of the land sold. This plea prevailed with this Court, with the result that the trial Court's decree was restored.

(3.) WHEN the pre-emptor proceeded to execute the decree, an objection was raised before the executing Court that as the pre-emption money, namely. Rs. 19,333-33 had not been deposited on the 10th of November. 1962, the pre-emption suit should be deemed to have been dismissed; and. therefore, no decree could be passed and there was nothing to execute. This objection was rejected by the executing Court and so also by the appellate Court. Both the Courts proceeded on the view that the pre-emption money was in deposit in the Court before the 6th of august, 1968, and as the trial Court's decree had merged with the decree of the district Judge the deposit was within time. The vendee is dissatisfied with this decision and has come up in appeal to this Court.