- (1.) The suit of the plaintiff-petitioner for pre-emption was decreed by the trial Court on February 26, 1977, on payment of Rs. 9,616.00 less the one-fifth preemption money already deposited. The said amount was to be deposited on or before April 22, 1977. Meanwhile the defendant filed an appeal against the judgment and decree of the trial Court and also made an application under O. XLI, R. 5, of Civil P. C. (hereinafter called the Code), for the stay of the execution of the decree against him. The execution of the decree was consequently stayed. Thereupon, the plaintiff made an application that he may be allowed not to deposit the pre-emption money because the execution of the decree had been stayed. On that application the lower appellate Court passed the following order : "Heard. In view of the fact (that?) the execution of the decree has been stayed in appeal, so the respondent pre-emptor may not deposit the amount till the decision of the appeal, Executing Court be informed." This order was passed on April 14, 1977, whereas the pre-emption money was to be deposited on or before April 22, 1977. The appeal was ultimately dismissed by the lower appellate Court on Nov. 7, 1977, but no order was passed to fix the time for deposit of the pre-emption money. On Dec. 17, 1977, when it came to the knowledge of the petitioner that no time had been fixed by the lower appellate Court for depositing the pre-emption money, he moved the necessary application under Section 152 of the Code, for the correction of the decree passed by the lower appellate Court. That application was resisted on behalf of the vendee-defendant and the learned Senior Subordinate Judge with enhanced appellate power after hearing the learned counsel for the parties dismissed the same with the observations that the plea that no order was passed by the Court for depositing the amount is palpably false because the order is clear that the applicant was to deposit the amount after the dismissal of the appeal which was disposed of on November 7, 1977. Dissatisfied with the same, the plaintiff has come up in revision to this Court.
(2.) The learned counsel for the petitioner contended that since the pre-emption money, as directed by the trial Court, was not deposited in view of the order passed in the appeal on April 14, 1977, the lower appellate Court shall have fixed some time for the deposit of the pre-emption money at the time of the disposing of the appeal. Since no such time was fixed in the judgment and decree of the lower appellate Court, the said omission could be rectified on the application filed on behalf of the petitioner under Section 152 of the Code. In support of this contention, the learned counsel relied upon Partap Kaur v. Sardara Singh, AIR 1974 Punj and Har 298. On the other hand, the learned counsel for the respondents contended that the petitioner was allowed not to deposit the pre-emption money till the decision of the appeal which, according to the learned counsel, meant that the amount was to be deposited immediately after the disposal of the appeal on November 7, 1977 or in any case within the time therefrom which was left with him between the date of the interim order dated April 14, 1977 and the order of the trial Court directing the deposit of the pre-emption amount on April 22, 1977.
(3.) After hearing the learned counsel for the parties, I find in the contention raised on behalf of the petitioner.;