SHEO GOPAL Vs. NAJIB KHAN

JUDGEMENT

(1.) THIS is a judgment-debtor s appeal. The facts are very fully stated in the judgment of the learned Judge of this Court, dated the 6th of June, 1913. It appears that on the 15th of February, 1907, Najib Khan obtained a decree in a pre-emption suit, conditional upon his paying into court the sum of Rs. 1,000 by the 15th of March, 1907. He complied with this condition. The vendee, however, appealed, and on his appeal the claim was dismissed on the 15th of June, 1907. On the 18th of July of the same year a creditor of Najib Khan attached the Rs. 1,000, which was deposited in court for the payment of the decree which he had against Najib Khan for Rs. 193-4-6, and this sum was paid to the creditor. Eventually, however, the High Court remanded the case to the lower appellate court, and that -court affirmed the decree of the court of first instance, that is to say, the decree for pre-emption. The plaintiff Najib Khan, the decree-holder, after the lapse of some time, applied in execution for possession. He was met by the plea that the one thousand rupees was not in court for payment to the vendee. The court executing the decree, thereupon, allowed the application. The vendee appealed and the lower appellate court modified the order of the court of first instance by directing that if Najib Khan paid Rs. 193-4-6, together with Rs. 100 damages, then he might have possession but not otherwise. On second appeal to this Court a learned Judge allowed the appeal and restored the order of the court of first instance.

(2.) IN our opinion the equity of the case is clearly in favour of the vendee being paid the full amount of the consideration for his sale which was set aside as the result of the decree in the pre-emption suit. It was no fault of his that the money was paid out of court to the creditor of Najib Khan. Najib Khan clearly benefited by the payment, because the debt to one of his creditors was satisfied. Of course it was quite wrong of the court which granted the attachment of the money in court to order its payment out until a final decree had been made in the pre-emption suit. The learned Judge of this Court says: "IN the circumstances of the case I can see no equity in enforcing the preemptor to pay a further sum of Rs. 193-4-6, much less the additional fine of Rs. 100 which has been imposed by the District Judge." While we agree with our learned colleague about the fine of Its. 100 we cannot agree with him in what he says about the Rs, 193-4-6. IN the first place it is not paying any " further sum " to the vendee. The vendee never received the Rs. 193-4-6, and in the nest place, whatever misfortune Najib Khan may have suffered as the result of the order for payment out to the attaching creditor, the vendee has the clearest equity to be paid back the money which he paid for the property to his vendor, which property he is now being dispossessed of. As already mentioned, the Rs. 193-4-6, went to discharge a debt of Najib Khan, The case of Abdus Salam v. Wilayat Ali Khan (1) has been cited lb is unnecessary for us to express any opinion upon this case. It is clearly distinguishable from the present because at the date when the money in that case was attached and paid out the preemption decree stood good and the money was payable to the vendee. IN the present case, when the money was paid over the decree of the court of first instance had been set aside by the District Judge, and the money, if it belonged to any one, belonged to the pre-emptor. We allow the appeal to this extent that we vary the decree both of this Court and of the lower appellate court by directing that the plaintiff Najib Khan shall have possession upon the terms of his paying into court the sum of Rs. 193-4-6, within two months from this date. We direct that the appellants do have their costs of both hearings in this Court. IN the court below each party will bear his own costs.