Judgement

HIDAYATULLAH, J. : This appeal with the special leave of this Court arises out of execution of a decree for pre-emption passed in favour of the appellant Jang Singh. By the order under appeal the High Court has held that Jang Singh had not deposited the full amount as directed by the decree within the time allowed to him and his suit for pre-emption must therefore be ordered to be dismissed and also the other proceedings arising therefrom as there was no decree of which he could ask execution.

2. The facts of the case are simple. Jang Singh filed a suit for pre-emption of the sale of certain lands against Brij Lal the first respondent (the vendor), and Bhola Singh the second respondent (the vendee) in the Court of Sub-Judge, 1st Class, Sirsa. On October 25, 1957, a compromise decree was passed in favour of Jang Singh and he was directed to deposit Rs. 5951 less Rs. 1,000 already deposited by him by the 1st of May, 1958. The decree also ordered that on his failing to make the deposit punctually his suit would stand dismissed with costs. On January 6, 1958, Jang Singh made an application to the Sub-Judge, Sirsa, for making the deposit of the balance of the amount of the decree. The Clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to Jang Singh so that the amount might be deposited in the Bank. In the challan (and in the order passed on the application, so it is alleged) Rs. 4,950 were mentioned instead of Rs. 4,951. Jang Singh took the challan and the application and made the deposit of the wrong balance the same day and received one copy of the challan as an acknowledgement form the Bank.

3. In May, 1958, he applied for and received an order for possession of the land. It was reported by the Naib Nazir that the entire amount was deposited in Court. Bhola Singh then applied on May 25, 1958, to the Court for payment to him of the amount lying in deposit and it was reported by the Naib Nazir on that application that Jang Singh had not deposited the correct amount and the deposit was short by one rupee. Bhola Singh applied to the Court for dismissal of Jang Singh s suit, and for recall of all the orders made in Jang Singh s favour. The Sub-Judge, Sirsa accepted Bhola Singh s application observing that in pre-emption cases a Court had no power to extend the time fixed by the decree for payment of the price and the pre-emptor by his failure to deposit the correct amount had incurred the dismissal of the suit under the decree. He ordered also the reversal of the earlier orders passed by him in favour of Jang Singh and directed that possession of the fields be restored to the opposite party.

4. Jang Singh appealed against that order. The District Judge recorded the evidence of the Execution Clerk, the Revenue Accountant, Treasury Office and Jang Singh. He also examined Bhola Singh. The learned District Judge held that the record of the case showed that on the day of the case was compromised and the decree was passed Jang Singh was not present and did not know the exact decretal amount. The learned District Judge assumed that it was the duty of Jang Singh to be punctual and to find out the exact amount before he made the deposit. He, however, held that a Jang Singh had approached the Court with an application intending to make the deposit to be ordered by the Court and the Court and its clerk made a mistake by ordering him to deposit an amount which was less by one rupee. Jang Singh was excused inasmuch as the responsibility was shared by the Court. The learned District Judge, therefore, held that this was a case in which Jang Singh deserved to be relieved and he came to the conclusion that Jang Singh was prevented from depositing the full amount by the act of the Court. He concluded "thus the deposit made was a sufficient compliance with the terms of the decree". The order of the Sub-Judge, Sisra, dismissing the suit was set aside.

5. Bhola Singh appea