(OJHA) GURDIAL SINGH Vs. ARJUN SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The sale deed was executed on 8 January 1923 and a suit for pre-emption was instituted on 7 July 1924. At first an ex parte decree was passed against the defendants vendees on 31 July 1924. Subsequently an application for setting aside the ex parte decree under Order 9, Rule 13, Civil P.C., was presented because there was no personal service on the defendants. The Court was satisfied that good cause had been shown and the ex parte decree was set aside, and the suit was restored on 10 January 1925. After that on 28 April 1925 the defendants obtained a gift of a small share in the same village which placed them on the same footing as the plaintiff. The Court of first instance decreed the suit on 14 December 1925 but the appellate Court has dismissed it. The lower appellate Court has held that by virtue of this gift the defendants were entitled to defeat the plaintiff's suit altogether.

(2.) It has now been held by a Full Bench of this Court in the case of Ram Saran Das V/s. Bhagwat Prasad ., that a gift taken by a vendee during the pendency of the suit which has the effect of depriving the pre-emptor of his right to be substituted in place of the vendee at the time when the decree is to be passed is a good defence to the suit under Section 19 of the Act. That section, however, has a further provision that where a decree for pre-emption has been passed in favour of a plaintiff, whether by a Court of first instance or by an appeal the right of such plaintiff shall not be affected by any transfer or loss of his interest accruring after the date of such decree.

(3.) The question before us is whether this provision would govern a case where an ex parte decree has been obtained by the plaintiff once but that decree has been set aside by the same Court. It is noteworthy that the tense used in this portion of the section is the present perfect tense, and we think that it would certainly cover the case of an ex parte decree once passed even though it has been set aside subsequently.