When pre-emption suit can be dismissed for non compliance of order of court?

From the combined reading of the aforestated provisions, it clearly emerges that the decrees in the pre-emption suits have to be passed in accordance with Rule 14 of Order XX of the CPC. Since the right of preemption is a very weak right, which tends to hamper the right of a person to transfer his property, the law requires very strict vigilance and compliance of the provisions contained in the said Act, when the decree is passed in favour of the plaintiff i.e. the pre-emptor. The very expression that the suit shall be dismissed, contained in the above provisions signifies the strict compliance of the directions given the decree.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Revision Petition No. 141/2013

Decided On: 07.04.2014

Appellants: Rajendra Kumar Chachan
Vs.
Respondent: Banne Singh

Hon'ble Judges/Coram:Bela M. Trivedi, J.

Citation: 2014 (2) WLN 457 (Raj.),AIR 2014 Raj 102

1. With the consent of the learned counsels for the parties, the revision petition is decided finally at the admission stage, after calling for the record of the execution proceedings. The present revision petition filed under Sec. 115 CPC is directed against the order dt. 24.10.2013 passed by the Additional District Judge No. 11, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the Executing Court') in Execution Petition No. 112 of 2012, whereby the Executing Court, while dismissing the application of the petitioner-judgment debtor under Sec. 144 of CPC has permitted the respondent Nos. 1 and 2-decree holders to deposit Rs. 9 lacs pursuant to the decree dt. 25.08.2010 passed in the Civil Suit No. 23/2008, and further directed the petitioner to get his name deleted from the sale deed dt. 21.11.2007 and substitute the names of the respondents, and also get the registration done accordingly in the Office of Sub Registrar, Jaipur.

2. The factual matrix of the case is as under:-

3(i). The present petitioner had purchased the disputed property from the respondent Nos. 3 to 10 (original defendant Nos. 1 to 8) vide the registered sale deed dt. 21.11.2007. The respondent Nos. 1 and 2 (the plaintiffs), therefore, filed the suit ascertaining their right of preemption in respect of the suit property, which was contested by the petitioner by filing the written-statement. However, subsequently the petitioner, who was the defendant No. 9 in the suit, submitted an application on 09.07.2010 requesting the Court to decree the suit, if the respondent Nos. 1 and 2-plaintiffs paid Rs. 9 lacs to him towards the sale consideration within one week. Pursuant to the said application, the Court on 25.08.2010 passed a detailed order and decreed the suit as under:-

3(ii). It further appears that though the condition incorporated in the said decree with the consent of the parties was not complied with by both the parties, the respondent Nos. 1 and 2-plaintiffs-decree holders filed the execution petition being No. 44 of 2010 on 28.10.2010 before the Executing Court. The present petitioner-defendant No. 9-judgment debtor resisted the said execution petition by filing the objection petition under Sec. 47 of CPC on 16.11.2010 alleging inter-alia that the respondents-decree holders having not complied with the condition of the decree by not depositing the amount of Rs. 9 lacs within two months as directed, the suit had stood dismissed under Sec. 14 of the Rajasthan Preemption Act, 1966 (hereinafter referred to as 'the said Act'), and therefore, the execution petition deserved to be dismissed.

3(iii). The Executing Court vide the order dt. 01.03.2011 dismissed the said objection petition of the petitioner, against which the petitioner had preferred the revision petition being No. 50 of 2011 before this Court. Pending the said revision petition, it appears that the Executing Court issued the possession warrant against the petitioner on 09.05.2011, posting the matter on 30.05.2011. However, on 26.05.2011, the Executing Court took up the matter on Board without informing the counsel for the petitioner and at the instance of the counsel for the respondents-decree holders, and permitted the respondents to take the possession by breaking open the lock of the suit premises. Accordingly the possession of the suit premises was taken over by the respondents-decree holders on 14.07.2011. The said revision petition came to be allowed by this Court vide the order dt. 21.01.2013 setting aside the order dt. 01.03.2011 passed by the Executing Court. While allowing the said revision petition, this Court had observed, as under:-

9. According to Mr. Mishra, the said respondent Nos. 1 and 2 had to seek permission of the Court for depositing the said amount and therefore the said amount was not deposited, however subsequently separate application was made by them for depositing the said amount. The Court does not find any substance in the said submission of Mr. Mishra, inasmuch as the concerned respondents-plaintiffs did not have to seek permission nor make separate application for depositing the said money, and in any case, the said application was filed by them on 22.08.2011 i.e. almost one year after the decree was passed. That apart, the said application is still pending before the executing Court and the amount of Rs. 9 lacs has also not been deposited by the respondent Nos. 1 and 2. As such, when the direction contained in the decree was to pay Rs. 9 lacs to the petitioner, there was no need for the respondents No. 1 and 2 to make application before the executing Court seeking permission to deposit the said amount in the Court, and that too after about one year of the decree.........

10. As transpiring from the decree in question, directions were to the effect that the plaintiffs shall pay the amount of Rs. 9 lacs to the defendant No. 9 within two months, and defendant No. 9 shall hand over the possession if any of the suit premises within the said period. In the opinion of this Court, both the directions had to be complied with during period of two months. The decree nowhere stated that the plaintiffs shall pay Rs. 9 lacs to the defendant-9 only if the defendant No. 9 handed over the possession of the suit premises to the plaintiffs, nor it was stated that the plaintiffs shall first pay Rs. 9 lacs to the defendant No. 9, and then only the defendant No. 9 shall hand over the possession to the plaintiffs. Under these circumstances, the trial Court has committed an error in misinterpreting the decree in question and by holding that since the possession was not handed over to the plaintiffs by the objector-defendant No. 9, his objection application was required to be rejected. The order under challenge being illegal and perverse, the same deserves to be set aside, and the executing Court is required to be directed to decide the execution application pending before it in accordance with law.

3(iv). It is pertinent to note that pending the said revision petition, an application was filed by the petitioner under Sec. 144of CPC for restoring the possession of the suit premises, however, the said application was subsequently withdrawn by the learned counsel for the petitioner with a view to file such application before the Executing Court. The petitioner thereafter filed the application seeking restoration of possession under Sec. 144 of CPC before the Executing Court.

3(v). After the order dt. 21.01.2013 passed by this Court in revision petition No. 50 of 2011, the Executing Court allowed the execution petition of the respondents-decree holders, and dismissed the application of the petitioner under Sec. 144 of CPC vide the impugned order dt. 24.10.2013, as stated hereinabove. Being aggrieved by the said order, the petitioner-judgment debtor has preferred the present revision petition.

3. It is vehemently submitted by the learned senior counsel Mr. S. Kasliwal for the petitioner relying upon the decision of Apex Court in case of State of Kerala vs. Puthenkavu N.S.S. Karayogam & Am., : (2001) 10 SCC 191, that this Court having allowed the revision petition preferred by the petitioner as per the order dt. 21.01.2013, setting aside the order dt. 01.03.2011 passed by the Executing Court, the Executing Court was required to dismiss the execution petition of the respondents. According to him, the said order passed by the Executing Court dismissing the objection petition of the petitioner having been set aside by this Court, the necessary implication was that the objections filed by the petitioner against the execution petition had stood allowed and the execution petition deserved to be dismissed. Mr. Kasliwal further submitted that the Executing Court had misinterpreted the order of this Court and had acted beyond its jurisdiction by travelling beyond the decree permitting the respondents to deposit the amount of Rs. 9 lacs though the respondents were required to pay to the petitioner the said amount within two months of the decree as per the decree. Drawing the attention of this Court to the provisions of Section 14 of the said Act and Order XX Rule 14 of CPC, Mr. Kasliwal submitted that the respondents having not deposited the amount of Rs. 9 lacs as per the decree within the time limit prescribed in the decree, the suit itself had stood dismissed, and therefore, the Execution Petition also did not survive. Mr. Kasliwal has relied upon the decisions of Apex Court in case of Harnama Singh (Dead) vs. Harbhajan Singh, MANU/SC/0016/1992 : 1992 Supp. (1) Supreme Court Case 709, in case of Sulleh Singh & Ors. vs. Sohan Lal, MANU/SC/0522/1975 : AIR 1975 Supreme Court 1957 and of this Court in case of Shivashankar Dayal vs. Smt. Shanti Devi, MANU/RH/0036/1972 : AIR 1972 Rajasthan 139 and of the other High Courts to buttress his submissions.

4. However, Mr. R.K. Agarwal, Sr. Counsel for the respondent No. 1 and 2-decree holders relying upon the second part of the decree submitted that the reciprocal obligations in the consent decree were required to be acted upon simultaneously by the parties, and that the petitioner having not handed over the possession within two months as directed in the decree, the respondents were also not required to comply with the said condition. According to Mr. Agarwal, there being no date fixed in the decree for the payment of the purchase money as envisaged in Order XX Rule 14, the Executing Court had rightly allowed the respondents to deposit the amount as per the impugned order, which amount has now been deposited by the respondents by the demand draft on 28.10.2013. Mr. Agarwal relying on the decision of Apex Court in case of Rangnath Haridas vs. Dr. Shrikant B. Hegde,MANU/SC/8428/2006 : (2006) 7 SCC 513, and in case of Nathulal vs. Phoolchand, MANU/SC/0492/1969 : 1969 (3) Supreme Court Cases 120 & in case of Parayya Allayya Hittalamani vs. Sri Parayya Gurulingayya Poojari Ors., MANU/SC/8030/2007 : (2007) 14 Supreme Court Cases 318 submitted that in the cases of consent decree under Order XXIII, Rule 3, where the reciprocal promises have to be complied with by the parties, the Courts can extend the time limit fixed in the decree. Mr. Agarwal further submitted that the decree in question having not been varied or reversed by the High Court in the revision petition, the application of the petitioner under Sec. 144 of CPC was premature and not maintainable in the eye of law. Even otherwise, runs the submission of Mr. Agarwal, the possession of the suit premises having been handed over to the respondents through the process of Court, and the said order having remained unchallenged at the instance of the petitioner, the Executing Court has rightly dismissed the application under Sec. 144 of CPC filed by the petitioner.

5. In Order to appreciate the rival contentions raised by the learned counsels for the parties, it would be beneficial to reproduce the relevant provisions contained in Section 14 of the said Act, as also the provisions of Order XX Rule 14(1) of CPC, which read as under:-

Section 14 of the Rajasthan Preemption Act:

14. Effect of non-payment.-If the purchase money or amount is not paid into the Court before it rises on the day fixed by it under Sec. 13, the plaintiffs suit shall stand dismissed and he shall, so far as relates to such sale or mortgage, lose his right of pre-emption over the property to which the decree relates and shall also bear the costs of the defendants unless the Court, for reasons to be recorded at the time of passing the decree, otherwise directs.

Order XX, Rule 14 of CPC

14. Decree in pre-emption suit.--(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall--

(a) specify a day on or before which the purchase money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs..............

6. From the combined reading of the aforestated provisions, it clearly emerges that the decrees in the pre-emption suits have to be passed in accordance with Rule 14 of Order XX of the CPC. Since the right of preemption is a very weak right, which tends to hamper the right of a person to transfer his property, the law requires very strict vigilance and compliance of the provisions contained in the said Act, when the decree is passed in favour of the plaintiff i.e. the pre-emptor. The very expression that the suit shall be dismissed, contained in the above provisions signifies the strict compliance of the directions given the decree.

7. Now, if the facts of this case are appreciated in the light of the aforestated provisions, it appears that the decree was passed by the trial Court in the preemption suit on 25.08.2010 on the basis of the application dt. 09.07.2010 filed by the petitioner. The trial Court had passed the detailed order narrating the pleadings and the contentions raised by the parties, while passing the said decree. There is nothing in the decree to suggest that it was passed with the consent of the parties as contemplated under Order XXIII, Rule 3 of CPC. It was only in the later part of the decree that the condition was incorporated with the consent of the parties, pursuant to which it was directed that the respondents-plaintiffs shall pay Rs. 9 lacs to the petitioner-defendant No. 9 towards the sale consideration, within a period of two months and that the petitioner-defendant No. 9, if he was in possession of any part of the disputed property, shall hand over the possession to the plaintiffs within the said two months of the decree. Such a decree having been passed by the Court in the pre-emption suit filed by the respondents-plaintiffs, the provisions of Section 14 of the said Act read with Order XX, Rule 14 had to be strictly complied with. Though the condition was incorporated in the decree with the consent of the parties, the decree nonetheless could not be termed as the consent decree under Order XXIII, Rule 3 as sought to be submitted by the learned counsel Mr. Agarwal for the respondents-plaintiffs. In absence of any agreement or compromise in writing and signed by the parties on record and in absence of any order passed by the Court on such agreement or compromise, the decree in question could not be treated as the one passed under Order XXIII, Rule 3 of CPC. The decisions relied upon by Mr. Agarwal being not germane to the facts of the case would not be helpful to him.

8. It is further required to be noted that this Court while allowing the revision petition No. 50/2011 vide order dt. 21.01.2013 had also elaborately dealt with the said decree. In the said order, it was observed by this Court that the respondents-plaintiffs were required to deposit the said amount of Rs. 9 lacs within two months from the date of decree and that they were not required to seek permission nor to make any application for depositing the said amount in the Court. It was categorically observed that there was no need for the respondent Nos. 1 and 2 to make any application before the Executing Court seeking permission to deposit the said amount in the Court, and that too after about one year of the decree. Despite such observations made by this Court, the Executing Court has permitted the respondents to deposit the said amount of Rs. 9 lacs even after passing of the impugned order dt. 24.10.2013. The Executing Court therefore has not only travelled beyond the observations made by this Court but has travelled beyond the decree, which is legally not tenable.

9. As rightly submitted by the learned senior counsel Mr. Kasliwal for the petitioner, the respondent Nos. 1 and 2-plaintiffs having failed to make payment of purchase money as directed by the Court in the decree, the suit of the respondents-plaintiffs had stood dismissed in view of Section 14 of the said Act read with order XX, Rule 14 of CPC. As per the settled legal position, the provisions of Order XX, Rule 14 being mandatory in nature, the non-compliance of the condition for the payment of the purchase money by the pre-emptor-plaintiff would entail dismissal of the suit. In the case of Naguba Appa vs. Namdev, MANU/SC/0057/1950 : AIR 1954 SC 50, similar to the present case, the Apex Court had held as under:-

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 preemption 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.

10. The aforestated ratio was also followed by the Apex Court in case of Sulleh Singh & Ors. vs. Sohan Lal & Anr., (supra), in which it was held in para 15 as under:-

15. The contention of the appellants that the lower appellate Court was wrong in extending the time for payment is correct because the failure of the plaintiffs-respondents to deposit the amount in terms of the trial Court's decree would result in pre-emptors' suit standing dismissed by reason of their default in not depositing the pre-emption price. The contention of the: appellants that the High Court was wrong in not setting aside the order of extension of time passed by the lower appellate Court is correct. It is only if the plaintiffs-respondents had paid the decretal amount within the time granted by the trial Court or 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.

11. In view of the aforestated legal and factual position, the Court comes to an irresistible conclusion that the respondents-plaintiffs having not paid the purchase money to the petitioner-defendant No. 9 within the time limit fixed by the Court in the decree, the provisions contained in Section 14 of the said Act and of the Order XX, Rule 14 had come into play, and the suit itself had stood dismissed. Consequently, the execution proceedings had also stood terminated and there was no question of Executing Court permitting the respondents-plaintiffs to deposit the purchase money as directed in the impugned order. On the dismissal of the suit, even the execution proceedings did not survive. The Court, therefore, holds that the impugned order passed by the Executing Court is not only without jurisdiction, but illegal, perverse and liable to be set aside.

12. Since the execution proceedings were not maintainable in the eye of law, the orders passed by the Executing Court therein, more particularly the order permitting the respondents-plaintiffs to take over the possession of the suit premises by the breaking open the lock, were also without any authority of law. The respondent Nos. 1 and 2 are therefore required to be directed to hand over the peaceful and vacant possession of the suit premises to the petitioner. In that view of the matter, the impugned order is set aside. The objections filed by the petitioner are allowed and the Execution Petition of the respondent-plaintiff Nos. 1 and 2 is dismissed. The respondent Nos. 1 and 2 are directed to hand over the possession of the suit premises to the petitioner within two weeks from today. The petition stands allowed accordingly.

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