Holding

The Supreme Court held that the executing appellate court erred in refusing to condone the 25‑paise shortfall; under Section 148 CPC the court may enlarge time to prevent miscarriage of justice, and the short deposit, made due to a bona‑fide mistake, must be accepted.

Summary

The appellant, a decree‑holder in a pre‑emption suit, was required to deposit the purchase price and costs in court. He deposited the full amount except for a shortfall of 25 paise, which he later paid after obtaining permission, claiming a bona‑fide mistake. The executing court condoned the shortfall, but the first execution appellate court held the default could not be condoned and deemed the suit dismissed under Order 20 Rule 14(1)(b) CPC. The High Court dismissed the appellant's second execution appeal on a limitation ground without considering the merits. The Supreme Court, exercising its discretionary power under Article 136 of the Constitution and Section 148 of the CPC, held that the shortfall, caused by a bona‑fide mistake, should be condoned and the earlier orders set aside, restoring the original executing court's order.

Issues considered

The shortfall of 25 paise in the required deposit, even if due to a bona‑fide mistake, amounts to a deemed dismissal of the suit under Order 20 Rule 14(1)(b) of the CPC.
Whether the executing appellate court could exercise discretion under Section 148 of the CPC to condone the delay and accept the deposit.
Whether the appeal was barred by limitation under the Limitation Act.
The propriety of the High Court dismissing the appeal without addressing its merits.

Legislation cited

Code of Civil Procedure, 1908s. Order 20 Rule 14(1)(b), s. Order 41 Rule 2, s. Section 148
Constitution of Indias. Article 13, s. Article 136
Limitation Acts. Section 5

Subjects

pre‑emption suitexecution proceedingsdecree holdershort depositbona‑fide mistakecondonation of delaySection 148 CPCOrder 20 Rule 14limitationArticle 136miscarriage of justice

Judgment

.A
i\ 844

JOGDHAY:AN
v.
BABU-, RAM AND OTHERS
..B 'j

• November 23, 1982

>'I(D.A. DESAI, BAHARUL: ISLAM AND V.'BALAKRlsHNAERADI; JJ.).

·Constitution of' 'India, 1950, Article 13~Supreme ~Court ·extrci~es Its
diicretionary power under··Article· 136·of the" Constitution. ·to ·meet the·endsof
.-)
justice., or -to remove (m/scqrriage .. of .justice .perpetr'atedi:-jn a ·cose..;;).Prt!'oemptlon \
suit-r-Judgment-Decree holder by,bona .fide 'mistake fails· 1o·· t:!ep~sit i O:~s~Pai:e,
but makes good.later wJth the- permission ,of ·the. Court- WhttherAn.- Yiewvof tlte
pro_visions, of Order X X,. Rule 14(1)_(b) of the Civil Proctdure Code, .the,suit ..8hould
·be' deemed to have been dismissed and consequently execution of the decree .is
0 impermi&sible-Whether the default could not be condoned.

,'Appellant-:plainfift'·in the' pre-emption suit agail:ist 'the·respondent 1
(velii:!ee).atWRespondent 2•(Vendor) g'Ot-a· decree. ·As per the'Triai"G:ourf'decree
tbe appellant deposited a.sum·-of· Rs. l 5~soo··as• ·the ·price XJf 1 be land: and ··Rs:' 100
aa',the chafges on account. of .~!)gistration~and olher ~l!.pcnses-.:Of.rthe-..deed.
Respondent 1 (vendee) filed. an appeal and the Additional ,Disttict. JJ¥,Jge
dismissed the app;al with 'the modification directing the appellant to deposit ·a
E sum of Rs. 1836-25 more in the ·trial Court···ror payment to the veildee, within
·15.4.1967; in case of failure the.suit was directed to be dismissed .. On 14.4.1967,
the appellant deposited Rs. 1836-00 instead of Rs; '1836-·25. lie; however, made
good the.· slroi-t.l deposit. of 25 ·PaiseJ on ~8;1 O;t 968 •with the. •permission · 'Of the
Gourt1averriog ,that the omission. to ldrposit 125 ·paise-twas•: due -to • bona· fide
mistake. The vendee filed a.,regular second,- appeal and the High Court• while ,..4
dis~issing the appeal directed the ,appellant to deposit . within .tbree.,months' ~ _
F. time, a furfher sum Of Rs. 500 for the improvements made·. to tile land. ~The
appellant; deposited this sum within the time limit.

In the execution case filed before the executing court, the respondent
vendee·filed an application under .order XX Rule 14(1){b), raising an objection
to the maintainability of the Execution •Petition on· the plea that short' deposit
G , of 25 Paise within 1~".4.1967 amounted.to deemed dismissal ofthe suit: itself and
that the default could not be condoned. -The ·-executing court by its order dt.
1.21969 overruled the objections. The Judgment. debtor's appeal before the II
Additional District Judge, was accepted holding that the provisions of order XX
Rule 14(1)(b) C.P.C. were mandatory, the short deposit was not due to bona
fide mistake and the default could not be condoned. The appellant preferred. a
H second execution appeal before the High Court, without a certified copy of tbe
order of the executing Court, but with an application 'ror exemption from
6lin~ th~ ~rtifi~d copy, Ttl~ appell!lnt WllS directed on ~5.11.1969 to file tbf;
loooiiAYAN v, BA~URAM (Baharul islam. J.) S45
. certified copy ..as soon as it is avail~ble... The appellant obtained a certified copy A
·on June 3, 1970 and filed it in the High Court on July 17, 1970. The appellant. filed' ·
an ·application on July, 17, 1970 under_ section S or the Limitation Act for ,
condonation of .delay~ The preliminary objection raised by the Respondent
No, 1 that the appeal was barred by limitation, was aCcepted by the learned_
lingle Judge and the Exeootion second appeal thus stood dismissed. Hence
the appeal after obtaining special leave of tho Coiut.
B
Allowing the appeal, the Court . · ·'
..
HELD: 1. The High Court committed an error in not adverting to
and not exercising its powers under Section 148 or the Code of Civil Procedure·
and in dismissing the appeal without going into the merit of the matter. Under_
sectionl48 C.P.C., the Court has enough power to enlarge time from time to time.
•. The power given to the Court under section 148, is discretionarY and is given for
the purPose of securing the ends of justice in case of necessity. C·
1
. [848-CD, E-F, 850-BJ

2. Under Order XX. rule 14 C.P.C. the plaintiff decree holder, in order
to get delivery of possession of the land, has to fulfill two conditions : (i) he has
· to deposit in the court the p~rcbase money . together with the cost, if any decreed
. against him. and (ii) the . deposit must be made on or before the date fixed by the
Coun. [849:E-Fl · · .- D

,However, in view of the deposit· of 25 Paise haviog mad~, under the been
orders of the court after the acceptance of the bona fide mistake, the finding of
the first executing appellate court that the non-deposit could not be due to
. ' any bona fide mistake is absolutely untenable for the reason that while the
appellant has deposited in · total Rs. 17,936.00 _fro;n time to time u directed by
• the Ccurts, there wu absolutely no reason as to why· he would not have deposited .
E
·, 2S Paise. unless it was due to a mistake. Indeed, the appellant is the victim
of Coun•s.cra:zc for technicalities of law at the cost or justice.
. [845·H, 849-0-H,-850-A) ·

·. CIVIL APPELLATE JuRisoi~oN: · Civil Appeal No. 94 of 1972•.
... .............. . ._ . . . . F
· ' Appeal by Special leave from the Judgment and Order dated
·:the 23rd July. 1971 . of the Punjab and Hazyana High Court in.
-~ . - ·· - Seeond Appeal No. 1941. oC 1969.
Execution .
.. . . . .· . . . . /.. .. . . .
: Uma Datta and Krishna Dati for the Appellant~. ·
G
S.K. Mehta, P.N.·Purl and M.K. D.uafor the Responde~t:
----.· / The Judgment <:>f the Co_urt was delivered by .
·'
..
'
'·
' .

. , . BAHAllUL ISLAM, J•.. In this appeal by special leave under
H
·Article 136 of the Constit~tiori, the appell'ant is the victim ~f Court's
craze for technicalities of 'Jaw at
the cost of justice. This Court
846 SUPRt!MB COURT RBPORTS (19831 1 s.c.R.

exercises its discretionary power under_ Article 136 of the Constitution
to · meet the ends of justice or to remove miscarriage of justice
perpetrated in ,a case.

2. This appeal arises out of an execution proceeding. The
facts material for the purpose of disposal of this appeal may be
·B ·stated thus. The appellant was the plaintiff in a pre-emption suit
and got a decree. Respondent No, 1 was the vendee and respondent
No.2, who was the real brother of the plaintiff-appellant, was then
vendor. The suit was for pre-emption and possession· in respect
of- some agricultural land. The trial cour.t decreed the suit on
payment of Rs. 15,500 as the price of the land and Rs, 100 as th(1
.c charges on account of registration .and other charges of the deed.
The appellant deposited the amount as directed by the Court.
--~

3 Respondent No. 1 filed an appeal and the Additional
\
District Judge who heard and disposed of the appeal dismissed the
appeal with the modification directing the appellant to deposit a
D sum of Rs. 1836.25 more in the trial court for payment to the
vendee, within J5.4.1967 ; in case of failure the suit was directed to
be dismissed. On .14.4.1967, the appellant deposited Rs. 1836.00
i~stead of Rs. 1836.25. He, however, made good the short deposit
of 25 paise on 28. 10.1968 with the permis~ion of the Court on the
allegation that the omission to deposit 25 paise was due to bona fide
E mistake. Respondent No. I_ filed a regular second appeal before
the High Court of Punjab arid Haryana. The High Court affirmed
the.decree of the first appellate Court but ordered, the appellant to
· deposit a further sum of Rs. 500.00 for the improvements made to
the land. The appellant was given three months' time to mit.ke the
J payment of the said sum ofRs. 500.00, failing which, it was· directed,
the 'suit would stand dismissed. The appellant deposited, this sum
too .within the time limit. .

4. The appellant on 28.10.1968 filed an execution case before
the executing court to get possession of the suit land. The executing
G
court issued notice to the judgment-debtor (respondent ~o. J
herein).· The judgment-debtor filed an application under Order XX,
rule l4(l)(b) of the Code of Civil Procedure on the ground, inter
alia, that the ·appellant was directed to make the payment of the
H sum of Rs. 1836.25 within April 15, 1967, but the appellant had
']-. -·
dep.osited only a sum of Rs. 1836:oo within the due date and the
amout~t fell short of 25 paise, and as such the execution proceedings
JOODHAYAN v. BABtJRAM (lJaharu/ /slam, J.) 847
should be struck off. The appelJant filed a rejoinder-to the objection A
petition of the judgment-debtor. His plea was that the short deposit ,
of 25 paise was due to a bona fide mistake on his part, but that the
shortage was made. good on October 28, 1968 after obtaining
necessary permission from the trial Court. The executing ~ourt,
by its order· dated February . l; 1969, held that the short deposit of 8
25 paise was due to a bona fide mistake on the part of the decree--
holder and over-ruled the objection of the judgment-debtor, taking . , .
the view that in the interest of justice 'the default on the part of the
decree-holder should be condoned. The Judgment-debtor preferred
an appeal in the Court of the lind . Additional District Judg,e, who,
by his order dated October 24, 1969 set aside the order of the execut- c
-
~--
ing· court. He held that the provisions of Order 20, rule 14(l)(b) of
the Code of Civil Procedure were mandatory, and as such the suit
should be deemed to have stood dismissed. He also held that the
'

short deposit of 25 . paise was not on account of p1istake and the
default could not be condoned.

S. The appellant preferre_d a secon'd execution appeal, being . 0
Execution Second Appeal No. 1941 of 1969 in the High Court. The
appeal was however presented without a certified copy of' the order
of the executing Court. ·. Th~ appeliant,,· however, made an applies.:
tion for dispensing with the filing of the certified copy.· The High
Court while admitting the appeal passed the following order :
E·
·•Admitted. Certified copy to be filed as soon as it is
i
available., ................... .'...........................................
. - "'
".

Sd/- R.S. Narula
. 25.11.69".
F
, The appellant obtained the certified copy .on June_ 3, 1970 and filed
it in the High Court on June 10, 1970. The appellant filed an ·
,. application on July 17, 1970 under section 5 of the -Limitation ~Act·
for the condonation ofthe delay. The second appeal came up for
hearing on March 25, 1971 before a single Judg~. Respondent No.
1 raised the priliminary objection that the appeal was barred by
G}
limitation. The objection was upheld by the learned single Judge;
as a result he dismissed the execution second appeal filed by" the
-, ·appellant herein. The appellant prayed for-leave to appeal under
Letters Patent. 'The prayer was also rejected. . ..
H
6. · Hence. this appeal b! special le~ve.
· [l9f;3i l s.c.l\.
A 7. Shri S.K. Mehta, learned counsel appearing for Respondent
No. 1 submitted that the execution appeal filed by the appellant in
, the· High Court was incompetent as the certified copy of· the
impugned order of the lower appelhite Court was not filed alongwith
· the memoran.dum-·of appeal. We do not find any substance in the
·submission~ for the reason, as we have already stated above, that 1
8 the appe1lant was granted time by the High Court at the time of .the
·admission· and was allowed to file the certified copy "as soon as it ·
is available:" It is not the contention ·.of the respondent. thl;\t the·
copy was not filed at f all,
I L
nor it is 1his submission that the- Court
.
had
.
no power to' grant time to file the copy of the impugned order. As
stated,above, the eopy was obtained- on 3.6.1'970~ and filed in court
c on 10~·6.1970....:.....seven ·. days after the copy was obtained. So he filed
the petition under Section S of the Limitation Act. There was no
reason as to why the delay could not be condoned. Th~~:t apart, under
Scctlon'l48"oft:lie Code"~ of' Civil Procedure, the Coutt has enough .
power to enlarge time from time to time. Section '148 l>rovides'': •-:

D "W.here any period is fixed ·or granted by the Court
t . for., the~ do.iilg .. of any· act. prescribed ·or allowed by ·this·
Code, tbe;.Gourt, may; in: its discretion,· from time to time;·
enJarge. such period. even ·though the· period originaily'··fii"td.,
or1granted,may ba¥e expired."
I.

E· The power.given to the Court under Section 148 is diScretionary
and is-given for the purpose of securi~g the ends of· jJsti~e> in case
. of necessity. In our opinion, the High· Court committed'aii'error
in not !ldverti~g>to, and not exercising its powers under Section 148
C.P.C?an(f in'df~mis.sing the appeal without going to the merit of
the matteri · ·
. . F
Mr.• Mehta dre·w our attention to the second proviso to su~:
rule·:. (2)tof···Otder 41,- ruie· (1) 'c.P.C. as amended '·by. Pbnjab, ·
Haryana..and Chandigarh.' The amendment. is in the f(,llowing'
. . ' !
words\;
I .

"Provided further that the Court roay permit the
appeal.to be filed with true .copies duly authen~icat~d ' by"
an ·advocate as ·correct~" · · · ·. · ~- q· •

This provision hardly· helps him .. It is not understandable,
how. the counsel for the appeUant could file 'true c9pies', whe!l his
client had not obtained the·c:ertified 'copy~ of the order iii) questioh .

.. . . ·' .
' .. . ~ ..
JOGDhAYAN V. BABURAM (Baharu/ iilam, ],) 849

8. ·· The next question for .de~ision is whetHer'the" first execution ,· A .·
. . ' . "' '
appellate Coutt was justified in holding that· the· ~'mount directed to
. .
,l be· deposited ·was not deposited as it fell short···by 25:paise. Order,,.
20; rule 14 CPC provides t ·· · ~~
\ '

''Decree. in:. pre-emption suii-(i):.. Where ·the Court J •
. decrees a. claim to pre-emption·'in respec~ particular .• '~ of a B
scale of property ang . the purchase money has not ,been
paia into Court,~the decree' shall~ ~ • · · :
1
· •
. ,... '· - • :~ - c··
• ~ • "( .r • •• • '"~. ~ ~~~ 'I ~ t*'
{a). specify· a day on or before which the· purchase money
shall be so paid, and
--~ f •

(c) direct. that on payment into Court of such purchase
ry-·· . money, together with the costs (if.any) decreed against
/
the plaintiff, on or before the day referred to io .clause
(a), the defendant shall deliver possession of the
property to the plaintiff, whose title thereto shall be
D
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.

(2) ................................................................... E

Under Order 20, rule 14 CPC, the plain~iff decree-holder, in
order to get delivery of possession of the land, has to fulfil two
conditions ; (i) he has to deposit in Court. the purchase'money
together with the cost, if ap.y, decreed against him and · (ii) the
deposit must be made on or before the date ftJed by the Court. . F

Here the admitted position is that the .appellant deposited the·
entire amount of purchase money together with the costs decreed
against him, less 25·paise within the time fixed by the Court and 25
paise too was deposited, but · beyond time. The executing Court
G
held that the short deposit was .due to a bona fide mistake, while
the executing appellate Court held that it was nor due to any bona
·. fide mistake, but it was a default and tbereby the executing appellate
Court deprived the decree-holder of the legitimate fruits of the decree
he obtained in all the Courts. The finding ~f the first executing H
lppellate Co.urt .that the non-deposit could not be due to any bona
fide mistake, is absolutely untenable for the reason that while tlie
850 {1983] t s.c.a.

appellant has deposited in total Rs. 17,936.00 ·from time to time as
directed by the Courts, there was absolutely no reason as to why he
would not .have deposited 25 paise, unless it was due to· a mistake.
This was pre-eminently a case in which the ~rst execution appellate
Court ought to -have exercised ics discretionary powers under section
148 CPC and accepted the delayed deposit of 25 paise, as· was done
8 by the original executing Court.

9. In the result. we allow the appeal with costs, set aside the
orders of the ·High Court as well as the first execution appellate
Court and restore the order of the original executing Court.
. . . ..' .
c S.R. Appeal allowed.

·,

··-