SURAJ KARAN Vs. MADAN MOHAN

JUDGEMENT

(1.) THIS is a second appeal by Suraj Karan who obtained a preliminary decree for pre-emption against Ganesh Lal and Nathulal (hereinafter to be referred to as the vendees) and Ramnarain (hereinafter to be referred to as the vendor) on the 25th of May, 1945. The decree, translated into English, is in these terms : - "the suit is decreed with costs. The plaintiff should deposit Rs. 1799/- Kaldar within three months in the court to be given to the defendant. The defendant should, after such deposit, transfer the property in favour of the plaintiff by delivering possession of it to him and take his money. The right of the plaintiff shall accrue on the date of such payment. If this payment is not made in the period fixed, that is up to 29th August, 1945, his suit shall be dismissed with costs. " The plaintiff appellant deposited the amount within the time prescribed by the decree, and on the 26th of July, 1946, final decree was passed. The appellant put this decree into execution, but the Dharmarth Department of Jaipur State resisted the execution, whereupon the appellant filed an application under Order XXI, Rule 97, for delivery of possession. THIS application was dismissed. The vendee, after the dismissal of the last mentioned application, applied to the court for the payment of money deposited by the appellant. The appellant, however, objected, and the learned Civil Judge, Jaipur City, made an order that the money should remain in deposit in court till the possession of the suit property was delivered to the appellant. Against this order, the appellant went in appeal to the court of District Judge, Jaipur City, who has reversed the order of the first court, and has ordered that the money be paid to the vendee. The vendee has also been awarded his costs. The decree-holder, Suraj Karan, comes in second appeal to this Court.

(2.) IT has been argued by the learned counsel for the appellant that the lower appellate court was not justified in varying the terms of the decree, as an execution court is not entitled to make such variation. IT was further argued that the lower appellate court had wrongly stated in its judgment that the counsel for the appellant consented to the money being paid to the vendee. IT was argued that such a statement was made not in connection with the present case but in the appeal against the suit filed by the vendee against Ramnarain vendor for the recovery of the amount for which the property was sold IT was further argued that even if such a statement was made by the counsel for the appellant, it could not legally bind the appellant. Reliance was placed for this on the ruling of this Court in the case of Tilokchand vs. Nawulram (1951 R. L. W. 252 ).