2001 PLP 1062 (MLD)

One Surraya Begum owned land in dispute, who purportedly gifted the said land on 19‑10‑1982, in favour of the respondent. The petitioner pre empted the said transaction on the ground that it was sale for a consideration of Rs.20,000.

2. The suit was contested, tried and vide judgment and decree dated 22‑6‑1986, it was decreed for a consideration of Rs.35,

000. He was directed to deposit the sale price up to 15‑7‑1986, otherwise the suit shall stand dismissed.

3. Against the said judgment and decree both the parties filed separate appeals. The petitioner herein also sought an interim relief from the learned first appellate Court in terms that till the decision of the appeal the direction of the learned trial Court for deposit of the pre‑emption money may be suspended on which vide order dated 13‑7‑1986, the learned First Appellate Court directed that "execution of the order under appeal is suspended till the disposal of the appeal".

4. The two appeals came up for consideration before the learned First Appellate Court. The appeal of the petitioner was dismissed on the ground that the pre‑emption money was not deposited as directed by the learned trial Court and that the interim order dated 13‑7‑1986, did not relieve the petitioner from complying with the direction of learned trial Court contained in the decree dated 22‑6‑1986. The appeal of the respondent was disposed of as infructuous. This was vide judgment dated 15‑1‑1990.

5. The learned counsel for the petitioner contends that execution of impugned judgment of the learned trial Court having been suspended, the appeal of the petitioner could not have been dismissed solely on the ground of non‑compliance of the direction of the learned trial Court. It was next contended that the sale consideration which was disputed in the appeal was not even determined by the learned First Appellate Court. ,

6. On the other hand, the learned counsel for respondent contends that the interim order dated 13‑7‑1986 suspended the execution of the judgment of the learned trial Court, the effect of the said interim order was that the petitioner would not be able to get the decree executed, it never stayed the operation of the direction to deposit the pre‑emption money, and therefore, no exception could be taken to the impugned judgment and decree of the learned First Appellate Court.

7. I have considered the submissions made by the learned counsel for the parties. The grievance of the petitioner was that the sale consideration at Rs.35,000 was wrongly determined by the learned trial Court. The grievance of the appellant was not adjudicated upon. In this case, there was a peculiar feature as well. In the application for interim relief made before the District Court, it was specifically prayed that the direction of the learned trial Court for the deposit of pre‑emption money may be suspended on which the interim order dated 13‑7‑1986 was passed. This interim order is to be interpreted in the light of the prayer made in the application for interim relief. The effect thereof clearly was that the direction for the deposit of pre‑emption money stood suspended. The learned First Appellate Court should have determined the appeal of the petitioner on merits and if it was found that the sale consideration was wrongly determined at Rs.35,000 and the decree of he learned trial Court was varied the learned Appellate Court was bound to grant time to the petitioner. However, if the decree of the learned trial Court was maintained, the learned First Appellate Court should have granted time to the petitioner in view of the interim order dated 13-7‑1986.

8. The contention of the learned counsel for the respondent that the effect of the interim order dated 13‑7‑1986 was that execution of the decree to the extent of possession was stayed has no merit in view of the observations made above. However, even if it was so even then the direction .for the deposit of the sale consideration also stood stayed. Reference may be made to Dattatraya v. Sheikh Mehboob, Sheikh Ali and another (AIR 1970 SC 750), in which the following observations were made:‑‑ "The decree framed under Order 20, Rule 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 exception that in return the possession of the property would: be delivered to him. It is, therefore, clear that a decree in terms of Order 20, Rule 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 interlinked, 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 the 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."

9. The appeal of the respondent against the impugned judgment and decree was not determined either because of the dismissal of the appeal of the petitioner. The suit of the petitioner having been dismissed, there was no occasion for the respondent to assail the impugned judgment and decree of the learned First Appellate Court. Therefore, the appeals of the parties have not been determined in accordance with law and are required to be decided afresh. Accordingly, this revision is allowed. The impugned judgment and decree of the learned First Appellate Court are set aside and while exercising power under Rule 33 of the Order 41 of the Code of Civil Procedure, it' is directed that the judgment and decree insofar as it disposed of the appeal of the respondent as infructuous, are also set aside with the result that both the appeals shall be decided afresh by the learned First Appellate Court in the light of the observations made above. No order as to costs. H.B.T./M‑477/L Order accordingly.