MATBAR SINGH Vs. ABHAI NANDAN PRASAD

JUDGEMENT

(1.) THIS is an appeal under the following circumstances: Nine persons instituted a suit to preempt a sale in favour of the respondent in this appeal, Rai Bahadur Abhai Nandan Prasad. The Court of first instance dismissed the suit and thereupon the-nine plaintiffs filed an appeal to this Court. One of the appellants was Girdhari Singh. THIS Court allowed the appeal and set aside the decree of the Court below and remanded the suit. The case was then finally decided by the Subordinate Judge. An application for execution having been filed by eight of the original plaintiffs and two persons who alleged themselves to be the heirs of Girdhari Singh, objections were raised by Abhai Nandan Prasad on the ground that the decree was a nullity inasmuch as Girdhari Singh had died during the pendency of the first appeal in this Court and his heirs not having been brought on the record, no steps could be taken by the persons who had applied for the execution of the decree for preemption. The Court of first instance came to the conclusion that the petitioner knew perfectly well that Girdhari Singh was dead, and, therefore, his heirs not having been brought on the record, the decree was a nullity. The eight original plaintiffs and the heirs of Girdhari Singh have filed an appeal to this Court contesting the judgment of the learned Judge below. THIS appeal having been laid before Mr. Justice Iqbal Ahmad for hearing has been referred to a Bench. The contention of the learned Counsel for the appellants is that upon the facts set forth above it did not matter whether Girdhari Singh's heirs had been brought on the record or not, because each of the other eight plaintiffs in their own right was entitled to preempt the sale, and he has further submitted that under the provisions of Rr. 2 and 3 of Order 22 the right to sue, which was vested in their co-plaintiff Girdhari Singh, survived to the other plaintiffs. We have, therefore, to consider whether that contention can be accepted or not. We have come to the conclusion that contention cannot be accepted. It is no doubt true that the eight other appellants had a co-extensive right to institute the suit for pre-emption, but a long series of rulings of this Court has made it clear that if in a suit for pre- emption a stranger is introduced, that suit must fail. Now the position of the learned advocate for the respondent is that in consequence of the heirs of Girdhari Singh not being brought on the record the judgment of the first Court dismissing as between the nine plaintiffs and the respondent the claim of Girdhari, that decree was final and negatives the right of Girdhari Singh as a person entitled to pre-empt. Now it is conceded by Mr. Peary Lal that if Girdhari Singh had died before the decision of the case by the learned Subordinate Judge, there is no question that the right to sue would have survived to the other plaintiffs, and no question could arise as to any decree that was passed in that suit. But when the decree was passed in favour of the plaintiffs, it was a decree passed in favour of the pre-emptors and a person who had been held as between the parties to this litigation to be a stranger. The conclusion, therefore, is that under the particular circumstances of this case, and in view of the fact that a Court of competent jurisdiction has held Girdhari Singh not to be entitled to pre-empt the sale, he was a stranger within the meaning of the rulings of this Court, namely that upon joining a stranger in a suit for pre-emption the suit must fail. We have, therefore, no option but to dismiss this appeal with costs.