# DATTARAYA S/0 KESHAV TAWALAY v. SHAIKH MAHBOOB SHAIKH ALI & ANR

- **Citation:** [1969] 2 S.C.R. 514
- **Court:** Supreme Court of India
- **Decided:** 1968-10-24
- **Case number:** Civil Appeal No. 329 of 1966
- **Bench:** J. C. Shah, V. Ramaswamj, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dattaraya-s-0-keshav-tawalay-v-shaikh-mahboob-shaikh-ali-anr-4522
- **Pages:** 6

## Headnote

Code of Civil Procedure (Act 5 of 1908), 0.20, r. l~uit for preemption decreed-Court directs deposit of purchase money by a certain
time-Appellate Court stays .execution of
decree-Purchase money de ..
posited after the time fixed-Effect.
The appellant had obtained a decree for possession of certain lands
in a pre-emption suit which he had
brought against the
respondents.
The respondents' appeal to the District .Court was dismissed. The District Court directed the appellant to deposit purchase money by a certain date and directed the respondents on the, deposit to deliver possession of the property. 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 costs.
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.
Before the date fixed for depositing
the purchase money the High Court stayed the execution of the decree
of the lower appellate court. The appellant deposited the purchase price
3 days after the date fixed stating that he could not deposit in time as
he fell ill. Thereafter the High Court dismissed the second appeal, and
the appellant, obtained possession of the properties. The respondents
applied to the Executing Court for restitution of properties on the ground
that the appellant had defaulted in depositing, the purchase money by
the date fixed by the lower appellate court's decree. The appellant contended 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
appeUate court's decree, and in anY case the High Court had dismissed
the second appeal and the decree holder would get by necessary implication a fresh starting point for depositing the purchase amount from the
rlate of the High Court's decree. The Executing Court rejected
the
claim of the respondents for restitution.
This decision was affirmed, on
appeal by the District Court.
But the High Court in appeal, took the
view that there was default on the part of the appellant in depositing
the
amount
and
therefore
the
appellant's
suit
stood
dismissed automatically and the appellant was not therefore entitled
to
possession in enforcement of the pre·emption decree.
HELD : The appeal must be allowed.
A decree in terms of 0.20 r. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by
one is conditional on performance by the other. To put it
differently,
the obligations are. reciprocal a.nd are inter-linked, so that they cannot be
separated. If the defendants by obt~ini~g the sta'I'. order fro~ the High
Court relieve themselves of the obligation to deliver possession of the
properties the plaintiff-decree holder must also be deemed thereby to be
relieved of the necessity of depositing the money so long as the stay
order continues. [517 D, El
The effect of the order of the High Court dismissing. the .second
appeal was to give by necessary implication a fresh starting point for
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DATTARAYA v. MAHBOOB (Ramaswami, J.)
515
depositing the amount from the date of the High Court's decree and the
appellant could have deposited the ·amount immediately after the High
Court's decree.
But the appellant had deposited the amount before the
date of the. High Court's decree and there was no default on the part
of the appellant in fulfilling the terms of the pre-emption decree. [517
F-G]
Satwaji, Balajiray Deshamukh v. Sakhar/al AtmGramshet,
I.L.R.
39
Born. 175 and Site v. Ramnath I.L.R. 28 Patna 371, approved.

## Text

DATTARAYA S/0 KESHAV TAWALAY
v.
SHAIKH MAHBOOB SHAIKH ALI & ANR.
October 24, 1968
[J. C. SHAH, V. RAMASWAMJ AND A. N. GROVER, JJ.]
Code of Civil Procedure (Act 5 of 1908), 0.20, r. l~uit for preemption decreed-Court directs deposit of purchase money by a certain
time-Appellate Court stays .execution of
decree-Purchase money de ..
posited after the time fixed-Effect.
The appellant had obtained a decree for possession of certain lands
in a pre-emption suit which he had
brought against the
respondents.
The respondents' appeal to the District .Court was dismissed. The District Court directed the appellant to deposit purchase money by a certain date and directed the respondents on the, deposit to deliver possession of the property. 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 costs.
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.
Before the date fixed for depositing
the purchase money the High Court stayed the execution of the decree
of the lower appellate court. The appellant deposited the purchase price
3 days after the date fixed stating that he could not deposit in time as
he fell ill. Thereafter the High Court dismissed the second appeal, and
the appellant, obtained possession of the properties. The respondents
applied to the Executing Court for restitution of properties on the ground
that the appellant had defaulted in depositing, the purchase money by
the date fixed by the lower appellate court's decree. The appellant contended 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
appeUate court's decree, and in anY case the High Court had dismissed
the second appeal and the decree holder would get by necessary implication a fresh starting point for depositing the purchase amount from the
rlate of the High Court's decree. The Executing Court rejected
the
claim of the respondents for restitution.
This decision was affirmed, on
appeal by the District Court.
But the High Court in appeal, took the
view that there was default on the part of the appellant in depositing
the
amount
and
therefore
the
appellant's
suit
stood
dismissed automatically and the appellant was not therefore entitled
to
possession in enforcement of the pre·emption decree.
HELD : The appeal must be allowed.
A decree in terms of 0.20 r. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by
one is conditional on performance by the other. To put it
differently,
the obligations are. reciprocal a.nd are inter-linked, so that they cannot be
separated. If the defendants by obt~ini~g the sta'I'. order fro~ the High
Court relieve themselves of the obligation to deliver possession of the
properties the plaintiff-decree holder must also be deemed thereby to be
relieved of the necessity of depositing the money so long as the stay
order continues. [517 D, El
The effect of the order of the High Court dismissing. the .second
appeal was to give by necessary implication a fresh starting point for
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DATTARAYA v. MAHBOOB (Ramaswami, J.)
515
depositing the amount from the date of the High Court's decree and the
appellant could have deposited the ·amount immediately after the High
Court's decree.
But the appellant had deposited the amount before the
date of the. High Court's decree and there was no default on the part
of the appellant in fulfilling the terms of the pre-emption decree. [517
F-G]
Satwaji, Balajiray Deshamukh v. Sakhar/al AtmGramshet,
I.L.R.
39
Born. 175 and Site v. Ramnath I.L.R. 28 Patna 371, approved.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 329 of
1966.
Appeal by special leave from the judgment and order dated
October 11, 14, 1963 of the Bombay High Court in Appeal No.
30 of 1962 from the Appellate Decree.
D. Narsaraju and R. V. Pillai, for the appellant.
M. S. K. Sastri and M. S. Narasimhan, for respondent No. 1.
The Judgment of the Court was delivered byRamaswami, J. This appeal is brought, by special leave, on
behalf of the plaintiff against' the judgment of the 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.
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 Rs. 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, 19?5 and dJrected th~ 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 costs.
The decree was passed in
conformity with 0.20, r.14 of the Civil Procedure Code.
The
respondents preferred a Second Appeal to the High Court and
SUPREME COURT REPORTS
[l969j 2 s.C.R.
pending disposal of the appeal the respondents praye~ 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
the 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 the 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 had dismissed the Second Appeal
and the decree-holder would get by necessary implication a fresh
starting point for depositing the purchase amount from the date
of the High Court's decree.
The Executing Court rejected the
olaim of the respondents for restitution and allowed the execution
case of the appellant to proceed. Against this order of the Executing Court the respondents went up in appeal to the District
Court which dismissed the appeal and confirmed the order of the
Executing Court. The respondents thereafter took the matter in
Second Appeal to the Bombay High Court which· differed from
the view of the District Court and allowed the appeal. The High
Court took the view that there was default on the part of the
appellant in depositing the amount and ther_efore the appellant's
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DATTARAYA v. MAHBOOB (Ramaswami, !.)
517
suit stood dismissed automatically and the appellant was not
therefore entitled to possession in enforcement of the pre-emption
decree.
The first question arising in this appeal is whether the High
Court was right in taking the view that the effect of the stay
order dated March 23, 1955 was merely to stay the delivery of
possession by the judgment-debtors and not a stay with regard to
the deposit of purchase price by the decree-holder. In our opinion, the High Court was in error in taking this view. The d~cree
framed under 0. 20, r.14, Civil Procedure Code requires reciprocal rights and obligations between the parties.
The rule says
that on payment into court of the purchase money the defendant
shall deliver possession of the property to the plaintiff. The decree
holder therefore deposits the purchase money with the expectation
that in return the possession of the property would be delivered
to him. It is therefore clear that a decree in terms of 0.20, r.14;
Civil Procedure Code imposes obligations on both. sides and they
are so conditioned that performance by one is conditional on
performance by the other. To put it differently, the obligations
are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the
High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree holder must also be
deemed thereby to be relieved of the necessity of depositing the
money so long as the stay order continues. We are accordingly
of the opinion that the order of stay dated March 23, 1955 must
be construed as an order staying the whole procedure of sale
including delivery of possession as well as payment of price. The
effect of tlie stay order therefore in the present case is to enlarge
the time for payment till the decision of the appeal.
We are further of the opinion that the effect of tlie order of
the High Court. dated October 6, 1960 dismissing the Second
Appeal w~~ to give by necessary implication a fresh starting point
for depos1tmg tlie amount from the date of the High Court's
decree.
The decree of the High Court was dated October 6
1960 and the appellant could have deposited the amount im:
mediately after this date.
But the appellant has deposited the
amount on May 2, 1955, long before the date of the High
Court's decree and there is no default on the part of the appellant
in fulfilling the terms of the pre-emption decree. In the present
case, when the High Court dealt with the Second Appeal filed
by the respondents, the time limited by the trial court for making
the deposit had expired.
It was open to the respondents to
press this point in the Second Appeal and for the High Court to
dec!d~ that, the time havi~g expired, it was not open to the
plamtiff to make the deposit and there was nothing before the
518
SUPREME COURT REPORTS
[1969] 2 S.C.R.
High Court for decision. It was equally open to the High Court
to dismiss the appeal and expressly extend the time for making
the deposit. When the High Court refrained from following the
first course and confirmed the trial court's decree, what was its
intention ?
Surely it wanted to give the plaintiff an effective
decree in his favour. if so, we are justified in holding that the
High Court intended to exercise its power of extending the time
for making the deposit, and incorporated in its decree the relevant provisions of the trial court's decree. That is to say, this is
a case in which we must hold that a fresh starting point is implied
in the decree of the High Court in the Second Appeal. The view
that we have expressed is borne out by the decision of the Bombay
High Court in Satwaji Balajiray Deshamukh v.
Sakharlal Atmaramsliet ('). In that case, the plabntiff brought a suit to recover
possession of property as purchaser from defendants 1 to 6 and
to redeem the mortgage of defendant 7. The first court having
dismissed the suit, the appellate court, on plaintiff's appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1 to 6 of a certain sum within six months
from the date of its decree and then to redeem defendant 7,
and on the plaintiff's failure to pay within six months from the
date of the decree he should forfeit his right to recover possession .•
All parties being dissatisfied with the decree, the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections.
The High Court
confirmed the decree and the plaintiff's second appeal and the
defendants' cross objections were dismissed. Within six months
from the date of the High Court's decree the plaintiff deposited
ill court the amount payable by him and applied for execution.
Defendant 7 contended that the plaintiff not having complied
with the terms of the decree of the first appellate court, his right
to recover possession in execution was forfeited.
The lower
courts upheld the defendant's contention and dismissed the darkhast.
On second appeal by the plaintiff, the High Court reversed the decree of the lower court and held that the time for executing a decree nisi for possession ran from the date of the High
Court's decree confirming the decree of the lower court, for what
was to be looked at and interpreted was the decree of-the final
appellalte court. There is also a decision to the similar effect in
Sita v. Ramnath (2). For the reasons already given we hold
that the decree of the High Court in Second Appeal should be
construed in the present case as affording by implication a fresh
starting point to the plaintiff for making payment to the Court.
For the reasons expressed we hold that this appeal should be
allowed, the judgment of the Bombay High Court dated October
I) I.L.R. 39,Bom.175.
(2) I.L.R. 28 Patna 371.
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DATTARAYA v. MAHBOOB (Ramaswami, J.)
519
11/ 14, 1963 should be set aside and the application of the first
defendant made on February 8, 1961 for restitution under s. 144
of the Civil Procedure Code should be dismissed. In the circumstances of this. case we do not propose to make ainy order as to
costs of this appeal.
iB
Y.P.
Appeal allowed.