KANHAIYALAL Vs. GOURILAL

JUDGEMENT

(1.) THIS is a second appeal by Kanhiyalal vendee who was defendant in a pre-emption suit.

(2.) THE suit was brought by Gourilal for pre-emption of a house sold by Mahadeo, who was also made a defendant, to Kanhiya Lal. THE house was in the city of Jaipur. THE suit was based on vicinage, though the learned Munsif says in his judgment that the plaintiff was Shafi-e-Sharik. Kanhaiyalal opposed the suit, and the main point put forward on his behalf was that the plaintiff had no right of pre-emption. We nead not mention the other points which were also subject-matter of certain issues as learned counsel for the appellant has not raised those points before us.

(3.) IN Baij Nath vs. Sital Singh (3) a question arose whether any right of pre-emption arose in respect of compulsory sales such as those which took place by public action in execution of decrees or for areas of Government revenues. Mahmood J was of the opinion that this question must be answered in the negative whether the right of pre-emption arises under the Mohammaden Law, or under certain terms of a Wajlb-ul-arz, or local usage or custom, The reason given by him for this at page 227 are these - "such sales are not the result of any vate contract to which the person whose property is sold is a party. They are the result of an authority conferred by the legislature upon she Courts for the purposes of awarding remedies against those who have failed to perform their pecuniary obligations. But for the specific interference of the Legislature such a power to sell the property of the debtor against his will could not be exercised by the Court or the revenue authorities and it would appear from general principles that when, in so interfering, the Legislature has framed specific rules, statue-law takes the place of general law, if any, in pari materia and excludes the application of the ordinary law of sale on account of the exigencies of procedure. The object of such sales is to secure satisfaction of debts by well defined means and methods calculated to achieve the object with certainly and expedition, and it seems clear that the object would be frustrated if such sales were hampered by the rules which govern private sales. The Legislature, however, in so interfering has not been needless of the right of preemption. Under the rules of procedure compulsory sales take place after a public proclamation, which, being an act of the Court or revenue authority, is taken to be sufficient notice to the pre-emptors, along with the public at large, to come forward and purchase the property; and it seems reasonable to suppose that those who do not appear to bid at the auction sale have no wish to purchase the property. "