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SUPREME COURT OF INDIA
20th November 1950.
MAHAJAN, R.S. NAIK AND KHALILUZZAMAN SIDDIQUI, JJ.
Naguba Appa, Appellant
Versus
Namdev, Respondent.
Civil Appeal No. 29 of 1950.
Advocates appeared
Laxman Rao Ganu for Appellant; Maruthi Rao Joshi, for Respondent.
-by filing of the appeal, the period fixed for depositing the purchase money is not extended and where the amount is not deposited by the date fixed, the suit is to be dismissed, which is mandatory on such failure of the plaintiff and it is not necessary that there should be a direction to that effect in a decree - Naguba Appa v. Namdeo, AIR 1954 SC 50. Direction given by the Trial Court are mandatory under the provisions of this Rule. Mere filing of an appeal does not suspend the decree of the Trial Court and unless that decree is altered in any manner by the court of appeal the pre-emptor is bound to comply with that direction. As held in Dattaraya v. Shaikh Mahboob Shaikh Ali, AIR 1970 SC 750, the decree in terms of this rule imposes obligations on both sides and they are so conditioned that performance by one is conditional on the performance by the other. In the case of Sulleh Singh v. Sohan Lal, AIR 1975 SC 1957, the above two decisions of the Supreme Court were considered and it was held that where the deposit is not made in accordance with the directions of the Trial Court, the appellate Court cannot extend the time for payment; hence held that the lower appellate court was in error in extending the time. It is only if the plaintiffs-respondents had paid the decretal amount within the time granted by the Trial Court if the plaintiffs-respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate Court might have considered the passing of appropriate order in favour of pre-emptors.
Judgment
MAHAJAN, J. : A decree for pre-emption of the property in suit was passed in favour of the plaintiff and he was ordered to deposit the sale price within two months from the date of the decree. An appeal was taken against this decision but it was withdrawn. The pre-emption money was not deposited within the time fixed in the decree. The pre-emptor made an application to the court for making the deposit without disclosing that the time fixed by the decree had elapsed. The application was allowed. The defendant, when apprised of the situation, made an application to the court to the effect that the plaintiff s suit stood dismissed owing to his failure in making the deposit in time and that he was not entitled to execute the decree. The trial Judge held that the pre-emption money not having been paid within the time fixed in the decree the suit stood dismissed. On appeal this decision was set aside but on second appeal it was restored and it was held that the suit stood dismissed under Order 20, Rule 14, Civil Procedure Code. Against this decision an appeal was preferred to the Judicial Committee of the State and it is now before us under Article 374(4) of the Constitution.
2. It was contended on behalf of the appellant that the decision of the High Court was wrong inasmuch as an appeal having been preferred from the trial court s decree in the pre-emption suit, the pre-emptor was justified in not depositing the amount within the time fixed by the decree. This argument cannot be sustained. Mere filing of an appeal does not suspend the decree of the trial Judge and unless that decree is altered in any manner by the court of appeal, the pre-emptor is bound to comply with its directions. In our opinion, the High Court was right in holding that the pre-emptor s suit stood dismissed by reason of his default in not depositing the pre-emption price within the time fixed in the trial Court s decree. It was next contended that the decree drawn up by the trial Judge was not in accordance with the provisions of Order 20 Rule 14 in that it contained no direction to the effect that if the deposit was not made within the time fixed the suit will stand dismissed. In our view, this contention is not sound because the dismissal of the suit is as a result of the mandatory provisions of Order 20 Rule 14 and not by reason of any decision of the Court and the omission to incorporate this direction in the decree could not in any way affect the rights of the parties.
3. The result therefore is that this appeal fails and is dismissed with costs.
Appeal dismissed.
For Citation : AIR 1954 SC 50
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