John Edge, Kt., C.J., Knox and Blair, JJ.
1. This is an appeal from an order in execution proceedings. The suit was one for pre-emption. The Court of First Instance made a decree under Section 214 of Act No. XIV of 1882, specifying the 1st of June 1892, as the day on or before which the purchase money should be paid. It further decreed that if the purchase money was not paid on or before the 1st of June 1892, the suit should stand dismissed with costs. It was a decree exactly in the terms of Section 214. The purchase money decreed was Rs. 7,450. The decree was made on the 26th of March 1892. On the 1st of June 1892, the plaintiff paid into Court, that is, into the Treasury, Rs. 4,150. On the 23rd of April 1892, the defendant had appealed to the High Court from the decree of the 26th of March. On the 6th of November 1894 the High Court dismissed the defendant's appeal with costs and confirmed the decree of the first Court. The next thing which happened was that on the 12th of January 1895, the plaintiff applied to the first Court for permission to pay into Court the balance of the decreed pre-emptive money, the balance being Rs. 3,300. On that application the first Court granted permission to make payment of the balance, holding that as the original time allowed when calculated out amounted to sixty eight days, and as the 12th of January 1895, was the sixty-eighth day from the High Court's decree of the 6th of November 1894, the plaintiff was entitled to pay in the balance of Bs. 3,300 and to execute the decree for pre-emption. The next thing that happened was that the plaintiff did not pay Rs. 3,300 on the 12th of January 1895. He had come to Court so late in the day that the Treasury was closed, and he was unable to make the payment. Having some hazy idea perhaps that the Indian Limitation Act of 1877 applied, the 13th of January being a Sunday, he made the payment into the Treasury on Monday the 14th of January 1895, of the balance of the pie-emptive money. The appeal before us is an appeal from the order allowing the payment and the execution of the decree for pre-emption.
2. On behalf of the respondent it has been contended that when there is an appeal from a decree for pre-emption, the time within which the purchase money had been ordered to be paid is extended, and the Appellate Court's decree in such appeal, although it says nothing about extending the time, has the effect of giving the plaintiff, whether he is appellant or respondent the corresponding period of time from the date of the appellate Court's decree for the payment of the pre-emptive price to that which he had from the date of the decree of the Court of First Instance. In support of that proposition we have been referred to the decisions in Rup Chand v. Shamsh-ul-jehan I.L.R. 11 All. 346; Noor Ali Chowdhuri v. Koni Meah I.L.R. 13 Cal. 13; and Daulat and Jagjivan v. Bhukandas Manekchand I.L.R. 11 Bom. 172, and in the course of the argument we were also referred to Mulu Singh v Rahim Kuar, Weekly Notes, 1888, p. 22; Jairam Singh v. Sri Kishen, Weekly Notes, 1890, p. 92; Kodai Singh v. Jaisri Singh I.L.R. 13 All. 376, and Wazir Khan v. Kale Khan I.L.R. 16 All, 126.
3. Section 214 of Act XIV of 1882 is precise. The Court acting under that section, if it acts in compliance with it, specifies and fixes a day certain as the day on or before which the pre-emptive price is to be paid, and decrees that if the pre-emptive price is not paid on or before that day fixed, the suit shall stand dismissed with costs.
4. Now there is no doubt that a plaintiff who has obtained a decree under Section 214 can appeal within the period prescribed by the Indian Limitation Act, 1877, for his appeal, whether or not he has made the payment on or before the day fixed, and on his appeal the Appellate Court, if it it sees fit so to do, may extend the lime within which the pre-emptive price is to be paid and fix a day itself. But it would be, in our opinion, frustrating the intention of the Legislature in Section 214; if we were to hold that a plaintiff merely by appealing from a decree in pre-emption could extend the time to an uncertain and unspecified day. We cannot believe it to have been the intention of the Legislature that a plaintiff in pre-emption could have a power of his own accord to effect the stay of the execution of a decree which, by reason of the pre-emptive price not having been paid on or before the day fixed, had become a decree in favor of the defendant. The contention on behalf of the respondent even went so far as to suggest that an appeal by a defendant in pre-emption had of itself the effect of extending the time fixed by the first Court for payment of the pre-emptive price. No doubt the defendant in pre-emption is entitled, within limitation and before the decree in pre-emption has become a decree in his favour dismissing the suit with costs, to appeal. But when his appeal would come on for hearing we fail to see what relief he could be entitled to, if the pre-emptive price had not been paid within the time fixed by the first Court, as in that event the only operative decree subsisting at the time of the hearing of the appeal would be a decree entirely in favor of the appellant.
5. Now on principle we hold that the full pre-emptive price not having been paid on or before the 1st of June 1892, the decree became operative as a decree dismissing the plaintiff's suit with costs, and the Court of First Instance had no jurisdiction to pass an order allowing the plaintiff to pay the balance of the pre-emptive price into Court and to execute a decree which could only be executed against the plaintiff by the defendant. We allow this appeal with costs and set aside the order in execution with costs.