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PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia and S.C.Mital JJ.
Gurdial Singh
Versus
Massa Singh
Execution Second Appeal No. 1280 of 1969,
Decided On : NOVEMBER 11, 1976
EXECUTION - SECOND APPEAL - PRELIMINARY OBJECTION - INSUFFICIENT STAMPING OF TRIAL COURT'S JUDGMENT - APPLICATION FOR CONDONATION OF DELAY - POWER OF COURT UNDER SECTIONS 148 AND 149, CIVIL PROCEDURE CODE - INTERPRETATION - COURT'S DISCRETION - REJECTION OF PRELIMINARY OBJECTION - APPEAL DEEMED TO HAVE BEEN FILED PROPERLY STAMPED WITHIN TIME - ISSUE OF FACT - FINDING OF FACT BY TRIAL COURT, APPELLATE COURT AND EXECUTING COURT - BINDING ON SECOND APPEAL - MORTGAGE OF LAND - PLEA NOT RAISED IN EXECUTION APPLICATION OR REPLY TO OBJECTION PETITION - EVIDENCE NOT LED - FINDING OF FACT AGAINST MORTGAGE - NO MERIT IN APPEAL.
Fact of the Case:
The appellants, Gurdial Singh and Gurdev Singh, filed separate execution applications in the Court of the Sub Judge 1st Class, Muktsar. The judgment-debtors filed objections under Sections 47 and 151 of the Civil Procedure Code read with Section 19-A of the Punjab Security of Land Tenures Act. The learned Sub Judge partly accepted the objection petitions. The appellants presented two separate appeals against the abovesaid orders which came up for hearing before the Additional District Judge, Ferozepur. The Additional District Judge dismissed both the appeals. Against the abovesaid judgment, two separate appeals were instituted by Gurdial Singh and Gurdev Singh appellants separately. One of the preliminary objections, which is common to both relates to the insufficient stamping of the trial Court's judgment.
Finding of the Court:
The Court held that the preliminary objections raised on behalf of the respondent should be dismissed and the applications under Section 149, Civil Procedure Code, moved on behalf of the appellants are allowed. The appellants are held to be entitled to extension of time for making good the deficiency in the court-fee and the same having been already made up, their appeals are deemed to have been properly filed and stamped within time in the very first instance. The Court further held that the appeals are without merit and are hereby dismissed.
Issues: 1. Whether the preliminary objection regarding the insufficient stamping of the trial Court's judgment should be dismissed? 2. Whether the applications under Section 149, Civil Procedure Code, moved on behalf of the appellants should be allowed? 3. Whether the appellants are entitled to extension of time for making good the deficiency in the court-fee? 4. Whether the appeals are without merit?
Ratio Decidendi: 1. The Court held that the provisions of Sections 148 and 149 of the Civil Procedure Code are equally attracted to the appeals presented in this Court or Courts below as also to suits in the original trials. Applying the ratio of the decisions cited above, it is evident that unless the Court comes to the finding that the litigant was acting mala fide or with contumacy, the appellant would be entitled to the benefit of Section 149 and discretion should be exercised in his favour by allowing him to make up the deficiency in the court-fee. 2. The Court held that the appellants were not acting mala fide and that they were not guilty of any contumacious conduct. Therefore, the Court allowed the applications under Section 149, Civil Procedure Code, moved on behalf of the appellants. 3. The Court held that the appellants are entitled to extension of time for making good the deficiency in the court-fee and the same having been already made up, their appeals are deemed to have been properly filed and stamped within time in the very first instance. 4. The Court held that the appeals are without merit and are hereby dismissed.
Final Decision: The preliminary objections raised on behalf of the respondent are dismissed and the applications under Section 149, Civil Procedure Code, moved on behalf of the appellants are allowed. The appellants are held to be entitled to extension of time for making good the deficiency in the court-fee and the same having been already made up, their appeals are deemed to have been properly filed and stamped within time in the very first instance. The appeals are dismissed.
S.S.SANDHAWALIA, J.
1. Preliminary objections to the competency of these two connected execution second appeals have been raised. These rest on the following facts. Gurdial Singh and Gurdev Singh appellants, who are brothers, had brought separate execution applications in the Court of the Sub Judge 1st Class, Muktsar. The judgment-debtors filed objections under Ss. 47 and 151 of the Civil P. C. read with S. 19-A of the Punjab Security of Land Tenures Act. By separate but identical orders recorded on the same day, i. e., March 8, 1968, the learned Sub Judge partly accepted the objection petitions. The present appellants presented two separate appeals on April 25, 1968 being Civil Miscellaneous Appeals Nos. 21 and 22 of 1968 against the abovesaid orders which came up for hearing before the Additional District Judge, Ferozepur. In his judgment dated March 12, 1969, the learned Additional District Judge dealt with both the appeals together observing in the opening part thereof that as the facts of both are similar and the same points were involved, these appeals would be disposed of by one judgment. In the operative part at the end he also observed as follows :-
"There is no force in any of the appeals. Both are, hereby, dismissed. The parties will bear their own costs. Pronounced in open Court."
2. Against the abovesaid judgment, two separate appeals being E. S. A. Nos. 1280 and 1281 of 1969 have been instituted by Gurdial Singh and Gurdev Singh appellants separately. One of the preliminary objections, which is common to both relates to the insufficient stamping of the trial Court s judgment. It is alleged on behalf of the respondents that both the appeals were presented in this Court on 14.07.1969 when an objection amongst others was raised by the office that the copy of the trial Court s judgment in each appeal was insufficiently stamped. By the office order dated 21.07.1969, the two appeals were returned to the counsel to be refiled within a week after compliance with the objections. These were refiled by the counsel on 28.07.1969 when the alleged deficiency of Rs. 1.40 Ps. only in the stamp affixable on the trial Court s judgment was duly made up. It is the common case of the parties that on 28.07.1969, the limitation for filing the two appeals had expired and consequently the deficiency in the stamp was made up beyond the period of limitation.
3. The basic contention of Mr. D. S. Nehra, learned counsel for the respondent, on these facts is that as the trial Court s judgment was inadequately stamped, there was no appeal before the Court till the insufficiency of the stamps was removed. Since this it is argued was done after the expiry of the period of limitation, no valid appeal in the eye of law was presented within time and consequently both the appeals are not competent.
4. The other preliminary objection relates to E. S. A. No. 1281 of 1969 only. It is pointed out that when the appeal was presented, the office objected that the copy of the lower appellate Court s judgment in Civil Miscellaneous Appeal No. 22 of 1968 was not forthcoming. When refiling the said appeal on July 28, 1969, counsel made a note that there was no separate judgment by the appellate Court in Civil Miscellaneous Appeal No. 22 of 1968 and that the main judgment in Civil Miscellaneous Appeal No. 21 of 1968 disposed of both the appeals. However, the office insisted on compliance with their objection on this score and on July 30, 1969, the short formal order recorded by the Additional District Judge stating merely that for the reasons recorded in Civil Miscellaneous Appeal No. 21 of 1968, this appeal is also dismissed was attached. The office however, pointed out that as the formal short order s copy had been filed after the period of limitation the counsel may move an application for condonation of delay, if so advised. Consequently Civil Miscellaneous No. 2227-C of 1969 was filed on August 4, 1969 under S. 5 of the Indian Lim. Act seeking a con
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