1. (Sheo Preshad Lall v. Thakoor Rai H.C.R. N.-W. P. 1868 p. 254). The first plea hardly arises in the shape in which it has been thrown. But it has always been the practice of our Courts in these Provinces to insist upon the payment of purchase-money in cases of the nature within the period prescribed by the Court. We are understood to follow the ruling of this Court marginally noted. There a pre-emptor obtained a decree from the first Court which provided a certain time within which the sum ascertained to be the purchase-money was to be deposited. The pre-emptor appealed against the amount fixed by the Court but failed. He did not deposit the money within the fixed time, and the Judge declined to enlarge the time. It was held by this Court that the plaintiff, in appealing from the original decree, could not escape from the obligation which it imposed, and the lower Appellate Court was not bound by law to insert in its decree any special direction concerning such deposit unless occasion called for it, although it was important to have done so. This ruling is not one exactly in point. But the principle laid down is the same. The Court was competent to make the direction it did as to the payment of the money, and if the decree-holder failed to comply with the obligation imposed on him by the decree, he would lose the benefit of it.
2. As to the second plea, the decision referred to by the lower Appellate Court, Mirza Himmul Bahadoor v. Gobindo Panday 5 W.R. 91 is not one in point, for the ruling there related to the question whether a plea of limitation could be heard for the first time after a remand-order on the merits had been carried out, when it had not been made the subject-matter of appeal at a previous stage. The words in the decision--'it appears to us that the judgment and decree, from which the ninety days are intended to be reckoned, are the final judgment and decree in the suit between the parties' (at p. 93)--might perhaps be misleading as to what is to be considered the final decision of the case in the suit before us. The words of the decree of the first Court are that the plaintiffs 'shall make a deposit of Rs. 300 within 31 days from the date of this (the Munsiff s) decision becomes final.' In our opinion a decision cannot be said to become final until the time for the last appeal allowed has expired, or, if appealed, it has become final by the decree of the High Court, as the ultimate Court in the country. In the suit before us there was a special appeal allowable under certain circumstances, and the Rs. 300 were deposited before the time fixed for the presentation of a special appeal had expired. Indeed, the special appeal was subsequently admitted and ultimately dismissed on trial on the 27th August, 1875.
3. Under this view of the case the order of both the Courts below is wrong.
4. The appeal is decreed and the decision of the lower Appellate Court reversed, and the case remanded to it under Section 351, Act VIII of 1859, for trial on the merits. Costs will abide the result.