FATEH MUHAMMAD CHAUDHRI Vs. MUSAMMAT SITA CHAUDHRAIN

JUDGEMENT

(1.) FATH Muhammad Chandhuri plaintiff appellant purchased tone zemindari property under a sale-deed dated the 20 of August 1914, thereupon two suit for pre-emption were brought : (1) by Musammat Sita the defendant-respondent, and (2) by Musammat Mohree. Both the suits were decreed, that is to say each plaintiff was given a decree entitling her to get possession of half of the property on payment of a certain sum within a given time. Musammat Sita paid in the money within the time prescribed and obtained possession of half of the property. The last day on which, according to the decree, Musammat Mohree ought to have deposited the money was the 16 of April 196. That day happened to be a Sunday and she departed the money on Monday, the 17th. On the 15 of April the day before the final date for despoiling the money, Musammat Mohree sold her decree, or in other words, the half of the property which she was entitled to pre- empt under the decree, to Mansabdar, a son of the plaintiff. Fateh Muhammad applied to the Court to withdraw the money deposited by Musammat Mohree, but on the report of tie office that the money had been deposited too late, his application as dismissed. In December 1916 Musammat Mohree applied to withdraw her deposit and it was given back to her. Then Musammat Sita sued to pre-empt Mansabdar. Fat eh Muhammad was not made a party and she got a decree and, having paid in the decretal amount within the time prescribed, cot formal possession against Mansaldar, and, on application before the Revenue Authority got mutation. in her favour, that is to say, Fateh Muhammad's name which had been entered against this half of the property was expunged and Musammat Sita's name was substituted, although Fateh Muhammad was no party to there proceedings. In this suit Fateh Muhammad asked for possession of that half of the property. The Trial Court decreed the suit but the lower Appellate Court dismissed it, holding that payment by Musammat Mohree of the decretal amount on Monday, the 17 April 1916, was a rood payment and that in consequence her sale to Mansabdar passed, the property. The plaintiff comes here in appeal and the one essential point which emerges for decision is whether Musammat Mohree, having failed to deposit the decretal amount by the 16 April 1916, complied with the decree or not, because, if she did not, then automatically under Order XXI, Rule 14(b) her suit for pre-emption stood dismissed and she conveyed nothing by her sale on the 15 of April 1916 to Mansabdar. According to the order rulings of thus Court for instance, Dabi Din Rai V/s. Muhammad Ali 3 A. 850 : A.W.N. (1881) 100 : 2 Ind. Dec. (N.S.) 573, Musammat Mohree's payment on the 17 would have been held to be within time. It has, however, recently been held by the Preemption Bench in Hirdey Narain V/s. Alam Singh 48 Ind. Cas. 353 : 41 A. 47 : 16 A.L.J. 892 that the payment on Monday was beyond time. A Special Bench of this Court was appointed some years ago to deal with pre-emption cases in order to obtain uniformity in decisions. That being so, I think I am bound to follow this later decision. I may point cut that on principle it seems to me difficult to distinguish this case from the case of Reoti Ram V/s. Sita Ram 60 Ind. Cas. 894 : 19 A.L.J. 49 but, however, as I have said before, I think I am bound by the decision of the Special Bench dealing with preemption cases. In this view the decree of the Court below must be set aside and the decree of the First Court restored with costs, including in this Court-fees on fie higher scale.