Judgment

RAMASWAMI, J.:- This appeal is brought, by special leave, on behalf of the plaintiff against the judgment of Bombay High Court dated October 11/14, 1963 in Appeal No. 30 of 1962 from the appellate order of the District Court, Osmanabad whereby the High Court reversed the judgment of the lower courts and declared that the appellant was not entitled to execute the decree for pre-emption and that the respondents were entitled to be put in possession of the properties of which they were dispossessed in the enforcement of the pre-emption decree.

2. The appellant had obtained a decree for possession of certain lands in a pre-emption suit he had brought against the respondents. The decree was made in March, 1945 and the appellant was directed to pay the consideration of Rs. 5,000/- within six months from the date of the decree on which the appellant was to be put in possession of the suit lands. In case of default in depositing the sum within the time the plaintiff s suit was to be deemed to have been dismissed. The respondents preferred an appeal to the District Court against the decree but the District Court confirmed the decree on January 28, 1955. The amount of Rupees 5,000/- was deposited in Court by the appellant on December 20, 1954 within the time granted in the trial Court s decree but it was subsequently withdrawn by him under orders of the Court. While dismissing the appeal of the respondents and confirming the decree for pre-emption, the District Court directed the appellant to deposit the sum of Rs. 5,000/- on or before April 30, 1955 and directed the respondents on such deposit to deliver possession of the properties. There was also a direction in the decree that in case the amount was not paid on the due date the suit shall stand dismissed with cost. The decree was passed in conformity with Order 20, Rule 14 of the Civil Procedure Code. 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. On March 23, 1955 the High Court passed the stay order in the following terms:

"Stay of execution of decree of the lower appellate court is granted on condition that the appellant furnishes security to the extent of the amount of costs."

The order was received by the trial court on April 19, 1955. The appellant who was directed under the terms of the lower appellate court s decree to deposit the sum of Rs. 5,000/- on or before April 30, 1955 made default in depositing the amount on that date. He, however, deposited the amount on May 2, 1955. Since the deposit was not made in time according to the lower appellate court s decree an application was filed along with the deposit stating that the amount could not be paid in time as the appellant fell ill. The Second Appeal preferred by the respondents to the High Court was dismissed on October 6, 1960 and pre-emption decree in favour of the appellant was confirmed. Thereafter on February 3, 1961 the appellant filed a Darkhast for possession of the suit properties. Since the application was within a year of the decree of the High Court a warrant for possession was issued by the Executing Court without notice to the respondents and the appellant also obtained possession of a portion of the suit properties under the aforesaid warrant. On February 8, 1961 the respondents filed an application in the Executing Court for restitution of the properties taken possession of by the appellant on the ground that the appellant had defaulted in depositing the purchase money on or before April 30, 1955 as required by the lower appellate Court s decree and the Executing Court was in error in issuing warrant for possession of the suit properties. The application for restitution was contested by the appellant on the ground 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 appellate Court s decree and in any case the High Court