MITHAN LAL Vs. CHUNI LAL

JUDGEMENT

(1.) This second appeal arises out of a suit for pre-emption and the only question that falls for determination is whether the sale which was the subject-matter of the suit could be pre-empted under law.

(2.) The facts briefly stated are as follows: One Amar Nath and his brother Jai Chand were joint owners of a house situate in Sonepat. On u July, 1937, Amar Nath sold his half share to Mangal Sain for Rs. 300. About four years later the son of Amar Nath and the sons of his brother Jai Chand, who were all minors, brought a suit for declaration that Amar Nath had no power to mortgage his share and that the mortgage was void against them. The trial Court dismissed the suit. Only the sons of Jai Chand preferred an appeal to the Court of the Senior Subordinate Judge. During the pendency of the appeal a compromise was arrived at between the parties on 12 July 1943. The terms of the compromise inter alia were: (1) that the whole house be auctioned by the Court Auctioneer under the supervision of the Court at the Dak Bungalow Sonepat and the fact that the auction was to take place be proclaimed in the whole town a day before the auction sale was to be held; (2) that the auction sale would continue from 10 a.m., to 4 p. m. under the supervision of the Senior Subordinate Judge; (3) that the sale would be knocked down in favour of the last bidder who would pay the entire amount of the bid oh the spot; (4) that out of the amount thus realised Rs. 570 would be paid to Mangal Sain on the spot and the balance would be delivered to the next friend of the appellants and the guardian of respondent 3 i.e. Amar, Nath's son, on their furnishing requisite security; (5) that the doctrine of caveat emptor would apply to the transaction and the auction purchaser would buy the property on his own responsibility; (6) that after the auction sale has been sanctioned, the next friend of the appellants and the guardian of respondent 3 would execute the deed of sale in favour of the auction-purchaser and would get it registered.

(3.) The Court after having recorded parties statements ordered the auction sale of the house to take place on 31 July 1943 and further directed that the sale be advertised in accordance with the terms of the compromise. The auction sale was actually held on 31 July 1943 under the supervision of the Senior Subordinate Judge. Chuni Lal was the last bidder. On 2 August, 1943 the Court recorded the following order: Sale having taken place in accordancewith the terms of the compromise, the appeal be dismissed. The plaintiff brought the suit for pre-emption on 31 July 1944.