DATTARAYA S/O KESHAV TAWALAY versus SHAIKH MAHBOOB SHAIKH ALI & ANR.

Citation: [1969] 2 S.C.R. 514 · Decided: 24-10-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

DATTARAYA S/0 KESHAV TAWALAY 
v. 
SHAIKH MAHBOOB SHAIKH ALI & ANR. 
October 24, 1968 
[J. C. SHAH, V. RAMASWAMJ AND A. N. GROVER, JJ.] 
Code of Civil Procedure (Act 5 of 1908), 0.20, r. l~uit for pre-
emption decreed-Court directs deposit of purchase money by a certain 
time-Appellate Court stays .execution of 
decree-Purchase money de .. 
posited after the time fixed-Effect. 
The appellant had obtained a decree for possession of certain lands 
in a pre-emption suit which he had 
brought against the 
respondents. 
The respondents' appeal to the District .Court was dismissed. The Dis-
trict Court directed the appellant to deposit purchase money by a cer-
tain date and directed the respondents on the, deposit to deliver posses-
sion of the property. There was also a direction in the decree that in 
case the amount was not paid on the. due date the suit shall stand dis-
missed with costs. 
The respondents preferred a second appeal to the 
High Court and pending disposal of the appeal the respondents prayed 
for stay of the execution decree. 
Before the date fixed for depositing 
the purchase money the High Court stayed the execution of the decree 
of the lower appellate court. The appellant deposited the purchase price 
3 days after the date fixed stating that he could not deposit in time as 
he fell ill. Thereafter the High Court dismissed the second appeal, and 
the appellant, obtained possession of the properties. The respondents 
applied to the Executing Court for restitution of properties on the ground 
that the appellant had defaulted in depositing, the purchase money by 
the date fixed by the lower appellate court's decree. The appellant con-
tended that the stay order made by the High Court in the second appeal 
prevented him from acting in accordance with the terms of the lower 
appeUate court's decree, and in anY case the High Court had dismissed 
the second appeal and the decree holder would get by necessary implica-
tion a fresh starting point for depositing the purchase amount from the 
rlate of the High Court's decree. The Executing Court rejected 
the 
claim of the respondents for restitution. 
This decision was affirmed, on 
appeal by the District Court. 
But the High Court in appeal, took the 
view that there was default on the part of the appellant in depositing 
the 
amount 
and 
therefore 
the 
appellant's 
suit 
stood 
dis-
missed automatically and the appellant was not therefore entitled 
to 
possession in enforcement of the pre·emption decree. 
HELD : The appeal must be allowed. 
A decree in terms of 0.20 r. 14, Civil Procedure Code imposes obli-
gations on both sides and they are so conditioned that performance by 
one is conditional on performance by the other. To put it 
differently, 
the obligations are. reciprocal a.nd are inter-linked, so that they cannot be 
separated. If the defendants by obt~ini~g the sta'I'. order fro~ the High 
Court relieve themselves of the obligation to deliver possession of the 
properties the plaintiff-decree holder must also be deemed thereby to be 
relieved of the necessity of depositing the money so long as the stay 
order continues. [517 D, El 
The effect of the order of the High Court dismissing. the .second 
appeal was to give by necessary implication a fresh starting point for 
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DATTARAYA v. MAHBOOB (Ramaswami, J.) 
515 
depositing the amount from the date of the High Court's decree and the 
appellant could have deposited the ·amount immediately after the High 
Court's decree. 
But the appellant had deposited the amount before the 
date of the. High Court's decree and there was no default on the part 
of the appellant in fulfilling the terms of the pre-emption decree. [517 
F-G] 
Satwaji, Balajiray Deshamukh v. Sakhar/al AtmGramshet, 
I.L.R. 
39 
Born. 175 and Site v. Ramnath I.L.R. 28 Patna 371, approved. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 329 of 
1966. 
Appeal by special leave from the judgment and order dated 
October 11, 14, 1963 of the Bombay High Court in Appeal No. 
30 of 1962 from the Appellate Decree. 
D. Narsaraju and R. V. Pillai, for the appellant. 
M. S. K. Sastri and M. S. Narasimhan, for respondent No. 1. 
The Judgment of the Court was delivered by-
Ramaswami, J. This appeal is brought, by special leave, on 
behalf of the plaintiff against' the judgment of the Bombay High 
Court dated October 11/14, 1963 in Appeal No. 30 of 1962 
from the appellate order of the District 

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