SHEO MANGAL Vs. MUSAMMAT HULSA

JUDGEMENT

(1.) This appeal arises out of an execution matter. It appears that the plaintiff appellant brought a suit for pre-emption against the defendants. That suit was decreed on the 29 day of February, 1916, by the court of first instance and the decree provided that on payment of Rs. 1,200 within two months the plaintiff would be entitled to get possession of the property. The vendee appealed to the District Judge and the plaintiff appellant filed cross-objections. The learned District Judge on the 12 day of August, 1916, allowed the vendee's appeal in part and increased the amount awarded to him by a sum of Rs. 380-15-0 and directed that in case the Rs. 1,200 awarded by the first court had not already been deposited the time for payment of the whole or the balance be extended by five months from the date of his decree. There was a second appeal to this Court which was dismissed.

(2.) The plaintiff on the 29 day of April, 1916, deposited Rs. 1,200 in court and on the 30 day of May, 1916, obtained possession of the property. He, however, did not deposit the balance of Rs. 380-15-0 within five months allowed by the court of first appeal. On the 17 day of July, 1918, the vendees applied for execution of their decree for costs. This application was ultimately dismissed for default. After this, on the 16 day of June, 1919, the vendees put in a second application for execution of the decree in their favour and claimed to recover a sum of Rs. 380-15-0 allowed by the District Judge, as well as costs to which they were entitled, and prayed for the execution of the decree by arrest of the judgment-debtor. An order issuing process was made on that day. Before the order could be executed, the judgment debtor appeared in court on the 13 day of July, 1919, and offered to pay Rs. 260 at once and prayed for two months further time. The vendees pleader objected to any further extension of time, but the court thought fit to direct that the judgment-debtor should deposit Rs. 260 on that date and Should be allowed two months further time to pay the balance. Before the two months had expired and before the balance had been deposited, the vendee, on the 2 2nd day of August, 1919, put in an application, out of which this appeal arises, and which in effect was one for restitution of the property on the ground that, the pre-emption money not having been deposited within the time allowed by the decree, the suit stood dismissed. Two days before the date fixed for hearing of this application, namely, on the 18 day of September, 1919, the plaintiff appeared in court and deposited the balance of the amount.

(3.) Various objections were raised by the plaintiff to the vendees application for restitution. The court of first instance was of opinion that this application was barred by the principle of res judicata as well as by the principle of estoppel, and it accordingly dismissed the application. On appeal the learned District Judge has differed from the views of the court of first instance, and having allowed the appeal, has granted the application for restitution of the property.