High Court of Punjab and Haryana, Chandigarh
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BIDHI CHAND v. SMT. SHANTI DEVI & ANR. - CR-3754-1994  RD-P&H 435 (31 January 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CR No. 3754 OF 1994
DATE OF DECISION : February 15, 2006
BIDHI CHAND ....... PETITIONER
SMT. SHANTI DEVI & ANR. ...... RESPONDENT
CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA
PRESENT: Mr. J.K. Goel, Advocate, for petitioner.
Mr.Rajinder Goyal, Adv. for respondent.
The challenge in the present revision petition is to the order passed by the learned executing Court on 2.8.1994 whereby the application CR 3754 OF 1994 /2/
for restoration of the possession delivered to the plaintiff in pursuance of decree dated 5.5.1986 was declined.
Plaintiff-Smt. Shanti filed a suit for pre-emption, which was decreed on 5.5.1986. However, in the said decree, the learned trial Court had not ordered the decree-holder to deposit the stamp and registration charges as the total pre-emption amount. This Court, on 15.2.1989, in a Civil Revision preferred by defendant No.2 amended the decree by adding the requisite stamp charges of Rs.3,250/- as pre-emption money.
Consequent to the said order, the decree-sheet was amended by the trial Court on 29.10.1992. The plaintiff was given two months time from the date of order dated 29.10.1992 to make the deposit. Such amount was not deposited within the time granted. Thereafter, the petitioner moved an application for restoration of the possession on the ground that since the plaintiff had not deposited the pre-emption amount within the time prescribed, therefore, the possession which had been delivered in pursuance of the decree dated 5.5.1986, was liable to be restored to the defendant- vendee.
The learned executing Court declined such application on the CR 3754 OF 1994 /3/
ground that in the order dated 29.10.1992, there is no stipulation as to the consequences of non-payment of the stamp duty and registration charges.
Therefore, the petitioner cannot seek restoration of possession.
In terms of Section 22(4) of the Punjab Pre-emption Act, the plaintiff was required to deposit the pre-emption amount within the time fixed by this Court or within such further time as the Court may allow.
Section 22(4) of the Pre-emption Act reads as under:- "(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in sub- section (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be."
Once the decree had been amended on 29.10.1992, the failure to deposit the amount of pre-emption would entail consequences of dismissal of the suit.
Therefore, the reasoning given by the learned executing Court that the consequences were not contemplated in the amended decree-sheet dated 29.10.1992, is not sustainable in law. It may be noticed that the plaintiff was proceeded ex-parte before the learned executing Court on 22.5.1993.
CR 3754 OF 1994 /4/
There is nothing on the record to suggest that the plaintiff ever applied thereafter for depositing the pre-emption amount.
Consequently, I find that order dated 2.8.1994 passed by the learned executing Court suffers from an illegality and, therefore, the same is set aside. The learned trial Court is directed to restore possession of the suit land to defendant-No.2/vendee as sought.
February 15, 2006 (HEMANT GUPTA)
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