- (1.) Anup Singh has filed this appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court dated March 8, 1976, by which E.S.A. No. 1437 of 1974 filed by him was dismissed.
(2.) Though detailed facts have been given in the judgment of the learned Single Judge, yet in order to appreciate the controversy raised before us certain salient features of the case may be noticed, which read as under :- Smt. Harbans Kaur respondent and Anoop Singh appellant, the two rival pre-emptors, filed separate suits to pre-empt the sale effected by one Mohinder Singh in favour of Gurwant Singh on November 14, 1963. The trial Court found that Smt. Harbans Kaur had a preferential right of pre-emption and consequently, a decree was granted in her favour on payment of the pre-emption amount on or before March 1, 1966, failing which the suit of Smt. Harbans Kaur was to stand dismissed. Anup Singh appellant was also held to be entitled to a decree but only if Smt. Harbans Kaur failed to deposit the pre-emption amount and in that event he was allowed to deposit the pre-emption amount by April 1, 1966. Anup Singh filed an appeal against the judgment and decree of the trial Court. The appellate Court set aside the judgment and decree of the trial Court holding that Anup Singh had a preferential right as compared to that of Smt. Harbans Kaur. Dissatisfied with the judgment and decree of the first appellate Court, Smt. Harbans Kaur filed regular second appeal in this Court which was allowed on March 4, 1970, and the case was remanded to the appellate Court with the direction that after re-appraising the evidence the appeal be decided afresh. On a reconsideration of the matter, the lower appellate Court affirmed the judgment and decree of the trial Court. It is an admitted case of the parties that Smt. Harbans Kaur did not deposit the pre-emption money on or before March 1, 1966, and that it was deposited by her only on March 29, 1966. After the decision of the first appellate court dated August 10, 1970, Smt. Harbans Kaur took out execution proceedings in which the appellant raised an objection that there was no decree which could be executed by Smt. Harbans Kaur as she had failed to deposit the pre-emption amount within the prescribed time and her suit would be deemed to have been dismissed. The objection was rejected by the executing Court; so also the appeal by the first appellate Court. Still dissatisfied, Anup Singh filed Execution Second Appeal No. 1437 of 1974 in this Court. The learned Single Judge, relying on the observations of Ramaswami, J. in Dattatraya v. Shaik Mahaboob Shaikh Ali and another, 1970 AIR(SC) 750 held that if the judgment-debtor allowed the appellate court to deal with the decree of the trial Court as if it was still subsisting although the decree-holder had made a default in complying with such a condition incorporated therein as would have entailed the dismissal of the suit, then by necessary implication the time for complying with the decree stood extended and for the purpose of compliance the executing Court had to look to the final decree and not the original one. This finding of the learned Single Judge was based on the observations of their Lordships of the Supreme Court in Dattatraya's case, which read as under :- "It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial Court's decree, what was its intention ? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial Court's decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal ... ... ..." In view of the said finding, the learned Single Judge also dismissed the appeal. It is in these circumstances that the present appeal has been filed.
(3.) It was vehemently contended by Mr. Mittal, learned counsel for the appellant, that the observations in Dattatraya's case, on which reliance has been placed by the learned Single Judge, have no relevancy to the facts of the case in hand and that those observations were made by their Lordships with reference to the peculiar facts of that case. It was further contended by the learned counsel that the non-deposit of the pre-emption money within the stipulated time by Smt. Harbans Kaur would result into the dismissal of her suit, and that there was no decree in favour of Smt. Harbans Kaur, which could legally be executed. In support of his contention, the learned counsel placed reliance on the judgment of the Supreme Court in Sulleh Singh and others v. Sohan Lal and another, 1975 AIR(SC) 1957;