M.M. Kumar, J. - (1.) COULD the Court grant extension of time to make up the marginal deficiency in deposit of pie -emotion amount in execution of a decree passed in favour of a a pre -emptor is the significant question which arises for consideration in the present revision petition?
(2.) THE brief facts of the case are that the decree holder -respondent Inder Singh (now represented by Smt. Mamo his widow, Smt. Resalo, Roshni, Phullo daughters of later Shri Inder Singh, Zille Singh, Dharam Singh sons of late Shri Inder Singh) filed a preemption suit being suit No. 638 of 1794 claiming decree for possession by pre -emption of 24 kanals I marla of land representing 1/2 share of land bearing Rect. No. 407, Rect. No. 59 Killa Nos. 3 to 9, 10/2, 11 to 13, 14/1, 20/1 (Total Killas 14) entered at khewat No. I according to jamabandi 1968 -69 of village Sanch, Tehsil and District Kaithal. It was further claimed that the suit be decreed in respect of the above said land on payment of Rs. 31,100/ -. A decree for possession by pre -emption in respect of land measuring 24 kanal I marla representing 1/2 share of the ownership and 1/4th share of the land measuring 96 kanal 3 tnarlas comprised in Rect. No. 407 Rect No. 59 (Killa Nos. 3 to 9, 10/2 -11 -12 -13 -14/1, 20/1 (Total 14 killas) situated in village Sanch, Tehsil Kaithal as per jamabandi 1968 -69 was passed by the learned trial Court on 5.3.1976. It was directed that a sum of Rs. 31,100/ - be deposited on or before 20.5.1976. Against the decree, first appeal was dismissed on 3.8.1977 and the High Court dismissed R.S.A. No. 1331 of 1977 on 16.7.1986. Even the S.L.P. No.11796 of 1986 also stood dismissed on 9.10.1987. Hence, the decree dated 5.3.1976 had attained finality. It is appropriate to mention that on the direction of the trial Court dated 13.9.1974 1/5th of the pre -emption amount was deposited by the respondent decree holder in the trial Court on 23.10.1974 i.e. at the time of filing of suit in compliance with the provisions of Section 22 of the Punjab Pre -Emption Act, 1913 (as applicable to the State of Haryana). On 7.5.1976, when the suit was decreed, the remaining 4/5th amount of Rs.25,400/ - was also deposited although the trial Court has fixed the date for that deposit to be 20.5.1976. In order to execute the decree, the execution petition was filed being Execution No.75 of 1992. In the execution petition all the afore -mentioned details were given and the petition was thumb marked by the legal representatives of late Shri Inder Singh, respondent -decree holder. To the execution petition, petitioner -Judgment debtor filed objections and an objection was taken in paragraph 4 of the objection petition that the decree holder -respondent did not deposit the full amount and it was mandatory to verify the same before warrant of possession could be issued. In paragraph 5 it was further objected that unless full amount is deposited, the execution is liable to be dismissed because the suit itself stood dismissed and no execution would lie. Another application was also filed by the petitioner -judgment debtor seeking stay of the execution proceedings. In reply to the objections filed by the judgment debtor -petitioner, replication was also filed alleging that the objections were mala fide and were filed to protract the illegal possession. It is also pertinent to point out that the decree -holder respondent revealed in the replication that the decree was also challenged in a suit on the ground of gross negligence and the ex -parte stay order granted in that suit by the Court of Shri Subhash Goel, Sub Judge Kaithal, stood vacated on 21.5.1988. Even the appeal against that order was dismissed on 9.9.1988 and the High Court dismissed the revision petition on 30.9.1988. The decree holder -respondent also filed an application in the original suit being suit No.638 of 1974 under Sections 148 and 151 of the Code of Civil Procedure, 1908 (for short the Code). In the application averments were made that the learned trial Court calculated the amount payable under the decree and filled the same in the challan in words as well as in figures. The challan, after calculation of the amount duly signed by the Sub Judge Ist Class alongwith the date, was given to the decree holder -respondent and a sum of Rs. 25,400/ - was ordered to be deposited. In order to make up the deficiency of Rs.100/ - a request was made for extending time and permission of the Court was sought to deposit the deficient amount of Rs.100/ - in the Court. The learned trial Court after perusal of the record and recording of statements of various witnesses reached the conclusion that the decree holder was not at fault in depositing deficit amount of Rs.100/ -. Vide impugned order dated 24.4.1996, the Civil Judge (Sr. Division) Kaithal, allowed the decree holder -respondent to deposit the short amount of Rs. 100/ - in the Court by 25.5.1996 failing which he was to face the consequences in terms of the decree dated 7.3.1976. The record shows that balance amount of Rs.100/ - was deposited on 6.5.1996 in the Court. The findings of the trial Court are as under: "Moreover, decree in question is silent about the exact pre -emption amount which was to be deposited and the pre -emption money of Rs.25,400/ - had been deposited by DH on the basis of challan Ex. DH, which bears the signatures of Presiding Officer and official who filled the challan by figuring Rs.25,400/ -. The concerned official namely: Chanan Dass and Pawan Kumar have appeared before the Court and proved the signatures of concerned person by whom it has been filled. From this it appears that concerned official has committed error in calculating the pre -emption amount which was to be deposited and it is the view of the Hon'ble Supreme Court in case Jang Singh v. Brij Lal, (1983)85 P.L.R. 884, that due to mistake of court or its official, litigants should not suffer and they cannot be held responsible for that mistake. This authority is extending full support to the stand of the DH and in view of the same, present DH should not suffer if the amount in question has been filled wrongly by concerned official and same view is also of our Hon'ble High Court in supra case Het Ram v. Rajinder Parshad according to which DH cannot be made to suffer for fault of Court officials and no mala fides can be attributed to decree -holder for depositing short amount. This authority is also giving full support to the case of the DH and in view of the same court cannot fix responsibility of DH for depositing short Pre -emption amount."
(3.) IT is against this order, the present revision petition has been preferred by the judgment -debtor.;