LexJOHRI SINGH versus SUKH PAL SINGH & ORS.
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.> - JOHRI SINGH v. SUKH PAL SINGH & ORS. SEPTEMBER 4, 1989 [N.D. OJHA AND K.N. SAIKIA, JJ.] Code of Civil Procedure, 1898: Section 148 and Order 20 rule 14--Mere filing of appeal does not suspend pre-emption decree-Only a stay order by appellate court can suspend it in the manner ordered therein-Non deposit of full decretal amount due to inadvertent arithmatical mistake whether time can be extended. The appellant's claim to pre-emption was decreed by the Senior Subordinate Judge in his favour. The pre-emption decree specified 31.12.1975 as the day on or before which the purchase money was to b~ paid into Court. But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare-Panjum" which the parties admit to be I/5th. Thus only 4/Sth of the amount was to be paid. Subsequently it was reported by the office that the amount deposited fell short of the decretal amount by Rs.100. Thereupon, the appellant decree-holder filed an application praying for condonation of delay and for permission to deposit the balance of Rs.100 stating that there was an inadvertent arithmatical mistake on his part, as also on the part of the Court officials. The Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit" condoned the delay holding that the mistake of the decree-holder was shared by the Court. The High Court, however, allowed the respondent's review petition filed under section 115 CPC., and held that the decree-holder himself filed the application I annexing the challan mentioning the amount and as such there was uo mistake on the part of any Court officials. Before this Court it was inter alia contended on behalf of the appellant that the Senior Subordinate Judge having exercised power within his jurisdiction under s. 148 CPC in extending the time to deposit A B c D E F the deficit amount of Rs.100, the revisional court mis-directed itself in G holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount. On behalf of the respondents it was contended that the challan having been prepared by the decree-holder himself, there was no mis- - takflm the part of any Court-official in accepting short deposit, and _the R · 17 18 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R. A High Court rightly held that the appellant's suit stood dismissed because of non-deposit of the decretal amount within time, and there- after there was no question of extension of any time for depositing the same. B Allowing the appeal, this Court, HELD: (1) There is no doubt that where the Court decrees a claim to pre-emption and the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non-payment, the suit shall be dismissed under order XX Rule 14(1) CPC. l22H] (2) While mere filing of an appeal does not suspend a pre-emption decree of the trial Judge a stay order passed by the appellate court may suspend it in the manner ordered therein. [28B] Naguba Appa v. Namdev, AIR (1954) SC 50 and Dattaray v. IJ) Shaikh Mahboob Shaikh Ali, [1969] 2 SCR 514, referred to. (3) One could distinguish the cases of non'deposit of the whole _of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non-deposit of the decretal amount consequent upon a stay order granted by .the appellate E Court. [30G] (4) In the first category of above cases the prov1s1ons of 0.20 r.14(1) would be strictly applicable, the provision being manda- tory. ]30GJ II' Naguba App.fl v. Namdev, AIR (1954) SC 50, referred to. G. (5) In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby. [30H] Dattaraya v. Shaikh Mahboob Shaikh Ali, [1969) 2 SCR 514 and Sulleh Singh v. Sohan Lal, [1976] 1SCR598, referred to. (6) In the third category of cases, namely, non-deposit of only a relatively small fraction of the purchase money due to inadvertent mis- M .take whether _of not caused by any action of the Court, the Court has JOHRI SINGH v. S.P. SINGH 19 " the discretion nnder section 148 CPC to extend the time even though the A time fixed has already expired provided it is satisfied that the mistake is bona fide and was not indicative of negli
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