NEHORA PANDE Vs. INDERJIT RAI

JUDGEMENT

(1.) THE case of the defendants-respondents is singularly devoid of merit. THE suit was a suit for pre-emption. THE consideration for the sale was Rs. 900 but there were outstanding incumbrances to the extent of Rs. 624-8 which the vendee was bound to discharge. THE Court of first instance decreed the plaintiff s claim, but overlooking the fact that there were incumbrances, which the vendee was bound to discharge, it ordered the plaintiff pre-emptor to deposit the whole Rs. 900 for payment to the vendee. If the matter had stood there, the result would be that the plaintiff would get the property subject to its incumbrances which he would be bound to discharge, while the vendee would get the price which Vie was to pay not for the encumbered property but for the property unencumbered. THE vendee appealed against the decree for preemption. THE plaintiff filed objections contending that he ought not to be called upon to deposit the whole Rs. 900. THE appellant withdrew his appeal. As the law then stood, the result was that the objections fell with the appeal. THE formal order that was made after the appellant withdrew his appeal, was that the appeal should be dismissed with costs. This was and is still the order that is made when an appellant withdraws his appeal. THE plaintiff then went back to the Court of first instance to have the decree amended on review so that he should not be obliged to pay to the defendant-vendee the entire purchase-money. THE Court at once saw the justice of the application and allowed a review of judgment. A final order was then made which provided for the defendants-vendees getting so much of the consideration as was payable over and above the incumbrances and further sum in respect of certain inumbrances which they had paid off, and relieving the plaintiff from paying to the vendees such part of the purchase-money as represented incumbrances which still remained undischarged. In other words, an obvious error in the decree as first made was corrected. THE vendees appealed against this decree. THEir appeal was dismissed. THEy-then took the case in second appeal to this Court. With regard to the merits, it is quite clear that the vendees have none. It is argued, however, that when the appellant first withdrew his appeal, the order of the Court must be deemed to be the final decree, and that consequently the Court of first instance had no power to entertain the application in review and pass an amended final decree. In our opinion, there is no force in this contention. THEre was no adjudication of any kind on the preemption case by the Appellate Court. THE appellant did what he had a perfect right to do, namely, to withdraw his appeal, and the order of the Appellate Court was no more than a record of the fact that the appeal was withdrawn coupled with an order that the appellant should pay the costs. We allow the appeal, set aside the decree of this Court and restore the decree of the lower Appellate Court with costs of both hearings in this Court.