WAJID ALI KHAN Vs. PURAN SINGH

JUDGEMENT

(1.) This appeal is connected with the Execution First Appeal No. 281 of 1923. They have arisen under the following circumstance: Four persons Puran Singh, Lekhraj Singh, Amar Singh and Pirthi Singh instituted a suit for pre-emption against Wajid Ali Khan who had purchased a property and who is the appellant in appeal No. 202 of 1923. The suit succeeded in the Court of first instance and a decree was made in favour of the plaintiffs on 20 February, 1921. The consideration money was directed to be paid within one month of the decree becoming final and was actually deposited in Court on 22nd June, 1921. Wajid Ali filed an appeal to this Court on 30 March, 1921. Amar Singh died pending the appeal on 12 January, 1922. The first appeal in this Court was heard in ignorance of the fact that Amar Singh was dead, and a decree was made on 18 January, 1923, reversing the decree of the Court of first instance. Before the appellate decree was made, the pre-emptors on payment of the consideration money had obtained delivery of possession over the pre-empted property. Wajid Ali on his success in appeal, applied for restoration of possession and it appears that, by an ex parte order, he was restored to possession on the 2nd of February, 1923. Thereupon, the plaintiffs Puran Singh, Lekhraj Singh and Pirthi Singh arid the representatives of the deceased plaintiff Amar Singh made an application on the 16 of February, 1923, in the Court of first instance asking that, they should be restored to possession. Their case was that Amar Singh having died pending the appeal the decree passed by the High Court was a nullity and therefore Wajid Ali got nothing by the decree made by the High Court in his favour.

(2.) The Court of first instance held that the sons of Amar Singh were entitled to keep possession of the entire property it the three surviving plaintiffs agreed that the entire consideration money might be taken as having bean deposited by the heirs of Amar Singh.

(3.) Wajid Ali, the vendee, has appealed, his appeal being No 202 of 1923. In this appeal the three surviving plaintiffs filed a cross objection, but they did not pay the Court-fee payable on the same, and their objection should be deemed to have been rejected. It appears that under the decisions of this Court under certain circumstances, it is cheaper to file an appeal than to file a cross-objection, and accordingly the three surviving plaintiffs Puran Singh and others filed the Appeal No. 281 of 1923,