1980 PLP 1765 (CLC)

(2) Whether the impugned decree dated 8-4-1947 is not a valid decree ? O. P. D. (3) Whether the impugned decree dated 8-4-1947 is time barred ? (4) Whether the plaintiff is estopped to bring this suit ? O. P. D. (5) Whether the impugned entries in the revenue are incorrect ? O. P. P. (6) Relief. The Civil Judge, who heard the suit, decided the 1st, 2nd, 3rd and 5th issues in favour of the defendants and the 4th issue against them. ,Resultantly, the suit was dismissed.

3. The legal representatives of Khanan, who were prosecuting the suit after his death, filed an appeal against the judgment and decree of the learned Civil Judge. It was heard by the District Judge who decided Issues Nos. 1, 2, 3 and 5 in favour of the plaintiffs. As for Issue No. 4 he upheld the finding of the learned trial Judge which was against the defendants. In result, he accepted the appeal and decreed the suit. The defendants have, therefore, come up in revision to this Court.

4. Learned counsel for the petitioner contended that the decree passed in favour of Khanan deceased, in the pre-emption suit brought by him, was not available to him for claiming title to the disputed land inasmuch as he had not deposited the pre-emption money in terms of the decree. The argument proceeds that Khanan was directed to deposit Rs. 400 as pre emption money but he bad, in fact, deposited Rs. 380 Ans. 14 and thus his suit stood dismissed in terms of the decree passed in his favour. The suit of Khanan was decreed with costs amounting to Rs. 19 Ans.

2. The decree contained a direction to the effect that the plaintiff shall deposit Rs. 400 failing which is suit shall stand dismissed. The plea raised by the: decree holder (Khanan), who was plaintiff in the subsequent suit giving rise to the revision petition in band, was that he was entitled to deduct the amount of costs from the pre-emption money and having clone so, he was required to deposit Rs. 380 Ans. 14 only which amount as actually deposited by him before the date fixed by the Court. Therefore, according to him, he had complied with the direction relating to the deposit of pre-emption money and the question of his suit having been dismissed for his failure to comply with the decree did not arise. His plea was accepted by the learned appellate Court by relying on Kapurla Mal and cnather v Wall Muhammad and others (I L R 1921 Lah. 294).

5. Assailing the view taken by the learned District Judge, it was contended by the learned counsel for the petitioners that the decree-holder in the present case, namely, Khanan could not deduct the amount of costs from the pre-emption money without the permission of the trial Court and since no such permission was secured by bins before depositing an amount which was less than the pre-emption money fixed by the trial Court he would be deemed to have not complied with the direction relating to the deposit of pre-emption money. The learned counsel, however, did not cite any authority in support of the proposition put forth by him.

6. In the above-quoted case of Kapuria Mal and another, which has been relied upon by the learned appellate Court, the decree-holder had not deposited the pre-emption money us determined by the trial Court but since the amount deposited by him together wish the costs allowed to him exceeded the pre-emption money find by the Court, it was held that he had sufficiently complied with the terms of the decree. There is nothing in the report to show that the decree-holder in the precedent case had obtained the permission of the trial Court before making the deposit as aforesaid. On the other hand, he had subsequently taken out execution proceedings for recovery of the costs. Despite all this, he was not held to be a defaulter. In view of the above authority. I am unable to agree with the learned counsel for the appellants that the decree-holder in the instant case could not deduct the amount of costs without the permission of the Court. Since the pre-emption money deposited by him coupled with the amount of costs payable to him was equal to the pre-emption money required to be deposited by him, he had complied with the terms of the decree and, therefore, the decree was available to him for claiming title of the land involved therein. In this- view of the matter, I affirm the view taken by the learned District Judge.

7. No other point was canvassed by the learned counsel and since the contention raised by him has no merit, the petition is dismissed in limine. K. M. A Appeal dismissed.