SHARIFUL-HUSSAIN Vs. KADIRBHAI

JUDGEMENT

(1.) THE second appeal arises out of execution proceedings and raises a question as to the validity of an agreement whereby the parties provide for payment of the amount of purchase price and costs as per decree not in cash but by means of a cheque

(2.) THE facts are that a decree for pre -emption granted in favour of the pre -emptor and against the vendee provided that the pre -emptor should deposit Rs. 4,000 minus the costs decreed in his favour within two months from the decree namely 21 -9 -1953. On default being committed in making such deposit pre -emptor's suit should stand dismissed. In case the deposit was made as per decree the pre -emptor would obtain possession and the vendee should execute a duly registered sale -deed in his favour. On 19 -11 -1953 the pre -emptor filed an execution petition mentioning the fact that he was submitting in Court a cheque for Rs. 3,425 drawn by one Khalilul Rehman for payment to the vendee Rs. 4,000 minus costs Rs 575. 1 -3 i. e. Rs. 3,424 -14 -9. The vendee objected to the execution on the ground that this was not valid payment as provided by law. The pre -emptor replied contending that the deposit was made as per agreement between the parties under which the vendee induced the pre -emptor to pay him Rs. 500 in cash to cover the expenses of sale -deed including necessary stamps and to deposit amount payable to him in the shape of a cheque. The vendee could not then turn round and lake advantage of his own fraud.

(3.) ON appeal the appellate Court confirmed this decision further holding that a decree for pre -emption cannot be varied by consent between the parties. The appeal was consequently dismissed.