LexJOGDHAYAN versus BABU RAM AND OTHERS
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844
JOGDHAY:AN
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'j BABU-, RAM AND OTHERS
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November 23, 1982
>'I(D.A. DESAI, BAHARUL: ISLAM AND V.'BALAKRlsHNAERADI; JJ.).
·Constitution of' 'India, 1950, Article 13~Supreme ~Court · extrci~es Its
diicretionary power under··Article· 136·of the" Constitution. ·to ·meet the·endsof
justice., or -to remove (m/scqrriage .. of .justice .perpetr'atedi:-jn a ·cose..;;).Prt!'oemptlon
suit-r-Judgment-Decree holder by,bona .fide 'mistake fails· 1o·· t:!ep~sit i O:~s~Pai:e,
but makes good.later wJth the- permission ,of ·the. Court- WhttherAn.- Yiewvof tlte
pro_visions, of Order X X,. Rule 14( 1)_( b) of the Civil Proctdure Code, .the,suit ..8hould
·be' deemed to have been dismissed and consequently execution of the decree .is
impermi&sible-Whether the default could not be condoned.
,'Appellant-:plainfift'·in the' pre-emption suit agail:ist 'the·respondent 1
(velii:!ee).atWRespondent 2•(Vendor) g'Ot-a· decree. ·As per the'Triai"G:ourf'decree
tbe appellant deposited a.sum·-of· Rs. l 5~soo··as• ·the ·price XJf 1 be land: and ··Rs:' 100
aa', the chafges on account. of .~!)gistration~and olher ~l!.pcnses-.:Of.rthe-..deed.
Respondent 1 (vendee) filed. an appeal and the Additional ,Disttict. JJ¥,Jge
dismissed the app;al with 'the modification directing the appellant to deposit ·a
sum of Rs. 1836-25 more in the ·trial Court···ror payment to the veildee, within
·15.4.1967; in case of failure the.suit was directed to be dismissed .. On 14.4.1967,
the appellant deposited Rs. 1836-00 instead of Rs; '1836-·25. lie; however, made
good the.· slroi-t.l deposit. of 25 ·PaiseJ on ~8;1 O;t 968 •with the. •permission · 'Of the
Gourt1averriog ,that the omission. to ldrposit 125 ·paise-twas•: due -to • bona· fide
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mistake. The vendee filed a.,regular second,- appeal and the High Court• while
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dis~issing the appeal directed the ,appellant to deposit. within .tbree.,months'
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time, a furfher sum Of Rs. 500 for the improvements made·. to tile land. ~The
appellant; deposited this sum within the time limit.
In the execution case filed before the executing court, the respondent
vendee·filed an application under .order XX Rule 14(1){b), raising an objection
to the maintainability of the Execution •Petition on· the plea that short' deposit
of 25 Paise within 1~".4.1967 amounted.to deemed dismissal ofthe suit: itself and
that the default could not be condoned. -The ·-executing court by its order dt.
1.21969 overruled the objections. The Judgment. debtor's appeal before the II
Additional District Judge, was accepted holding that the provisions of order XX
Rule 14(1)(b) C.P.C. were mandatory, the short deposit was not due to bona
fide mistake and the default could not be condoned. The appellant preferred. a
second execution appeal before the High Court, without a certified copy of tbe
order of the executing Court, but with an application 'ror exemption from
6lin~ th~ ~rtifi~d copy,
Ttl~ appell!lnt WllS directed on ~5.11.1969 to file tbf;
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loooiiAYAN v, BA~URAM (Baharul islam. J.)
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. certified copy .. as soon as it is avail~ble... The appellant obtained a certified copy
·on June 3, 1970 and filed it in the High Court on July 17, 1970. The appellant. filed' ·
an ·application on July, 17, 1970 under_ section S or the Limitation Act for ,
condonation of . delay~ The preliminary objection raised by the Respondent
No, 1 that the appeal was barred by limitation, was aCcepted by the learned_
lingle Judge and the Exeootion second appeal thus stood dismissed. Hence
the appeal after obtaining special leave of tho Coiut.
Allowing the appeal, the Court . · ·'
HELD: 1. The High Court committed an error in not adverting to
and not exercising its powers under Section 148 or the Code of Civil Procedure·
and in dismissing the appeal without going into the merit of the matter. Under_
sectionl48 C.P.C., the Court has enough power to enlarge time from time to time.
The power given to the Court under section 148, is discretionarY and is given for
the purPose of securing the ends of justice in case of necessity.
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[848-CD, E-F, 850-BJ
2. Under Order XX. rule 14 C.P.C. the plaintiff decree holder, in order
to get delivery of possession of the land, has to fulfill two conditions : (i) he has
· to deposit in the court the p~rcbase money . together with the cost, if any decreed
. against him. and (ii) the . deposit must be made on or before the date fixed by tExcerpt shown. Read the full judgment & AI analysis in Lexace.