the appellant had obtained a decree for possession of certain lands in a pre emption suit he had brought against the respondents.
the application for restitution was companytested by the appellant on the ground that the stay order made by the high companyrt in the second appeal prevented him from acting in accordance with the terms of the lower appellate companyrts decree and in any case the high companyrt 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 companyrts decree.
while dismissing the appeal of the respondents and confirming the decree for pre emption the district companyrt directed the appellant to deposit the sum of rs.
he however deposited the amount on may 2 1955.
the order was received by the trial companyrt on april 19 1955.
all parties being dissatisfied with the decree the plaintiff preferred a second appeal to the high companyrt and the two sets of defendants filed separate sets of cross objections.
appeal by special leave from the judgment and order dated october 11 14 1963 of the bombay high companyrt in appeal number 30 of 1962 from the appellate decree.
the executing companyrt rejected the claim of the respondents for restitution and allowed the execution case of the appellant to proceed.
the decree framed under o.20 r. 14 civil procedure companye requires reciprocal rights and obligations between the parties.
the appellant who was directed under the terms of the lower appellate companyrts decree to deposit the sum of rs.
thereafter on february 3 1961 the appellant flied a darkhast for possession of the suit properties.
against this order of the executing companyrt the respondents went up in appeal to the district companyrt which dismissed the appeal and companyfirmed the order of the executing companyrt.
the high companyrt companyfirmed the decree and the plaintiffs second appeal and the defendants cross objections were dismissed.
the amount of rs.
within six months from the date of the high companyrts decree the plaintiff deposited in companyrt the amount payable by him and applied for execution.
the second appeal preferred by the respondents to the high companyrt was dismissed on october 6 1960 and the pre emption decree in favour of the appellant was companyfirmed.
defendant 7 companytended that the plaintiff number having companyplied with the terms of the decree of the first appellate companyrt his right to recover possession in execution was.
the respondents preferred a second appeal to the high companyrt and pending disposal of the appeal the respondents prayed for stay of the execution decree.
there was also a direction in the decree that in case the amount was number paid on the due date the suit shall stand dismissed with costs.
the respondents preferred an appeal to the district companyrt against the decree but the district companyrt companyfirmed the decree on january 28 1955.
5000 within six months from the date of the decree on which the appellant was to be put in possession of the suit lands.
on february 8 1961 the respondents filed an application in the executing companyrt 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 companyrts decree and the executing companyrt was in error in issuing the warrant for possession of the suit properties.
5000 on or before april 30 1955 and directed the respondents on such deposit to deliver possession of the properties.
the respondents thereafter took the matter in second appeal to the bombay high companyrt which differed from the view of the district companyrt and allowed the appeal.
5000 on or before april 30 1955 made default in depositing the amount on that date.
civil appellate jurisdiction civil appeal number 329 of 1966.
on march 23 1955 the high court passed the stay order in the following terms stay of execution of decree of the lower appellate companyrt is granted on companydition that the appellant furnishes security to the extent of the amount of companyts.
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 numberice to the respondents and the appellant also obtained possession of a portion of the suit properties under the aforesaid warrant.
in case of default in depositing the sum within the time the plaintiffs suit was to be deemed to have been dismissed.
the decree was passed in companyformity with o.20 r.14 of the civil procedure companye.
forfeited.
the high companyrt took the view that there was default on the part of the appellant in depositing the amount and therefore the appellants suit stood dismissed automatically and the appellant was number therefore entitled to possession in enforcement of the pre emption decree.
sastri and m.s.
the decree was made in march 1945 and the appellant was directed to pay the companysideration of rs.
since the deposit was number made in time according to the lower appellate companyrts decree an application was filed along with the deposit stating that the amount companyld number be paid in time as the appellant fell ill.
narsaraju and r.v.
the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by special leave on behalf of the .plaintiff against the judgment of the bombay high companyrt dated october 11/14 1963 in appeal number 30 of 1962 from the appellate order of the district companyrt osmanabad whereby the high companyrt reversed the judgment of the lower companyrts and declared that the appellant was number 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.
5000 was deposited in companyrt by the appellant on december 20 1954 within the time granted in the trial companyrts decree but it was subsequently withdrawn by him under orders of the companyrt.
narasimhan for respondent number 1.
pillai for the appellant.
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 companytinues.
