Brodhurst and Tyrrell, JJ.
1. The plaintiff in this action is the purchaser of an actionable claim held by one Ram Lal under the following circumstances. Ram Lal brought a pre-emption suit against the appellants here and obtained a decree from the first Court, conditionally on his payment to the appellants of Rs. 1,595, the price of the property that he was interested in. He procured the payment to the appellants of this money by a third person, and in concert with the appellants, he certified this payment to the Court in the sense of sections 257 and 258, Civil Procedure Code. But in the meantime, and prior to such payment, the appellants had appealed against the decree, fixing the price of the property which they had purchased at Rs. 1,595, and they obtained from the appellate Court a decree, raising that price, and declaring Rs. 1,994-4 to be the true price payable by Ram Lal to the appellants for the estate. Ram Lal never paid the difference between his deposit Rs. 1,595, and the sum fixed as the true price by the appellate Court. He also did not take possession of the property, which he had sought to pre-empt. He made no application under section 244 of the Code for the recovery of his money paid to the appellants, under the mistaken belief on his part, that this price would not be altered by the Court in appeal. He assigned his rights to the recovery of this money from the appellants, to Koji Ram, the plaintiff in this suit and the respondent here, who brought the present action and has got a decree for part of his claim from the Court below.
2. The defendants have brought this second appeal and contend that the plaintiff has purchased an actionable claim from Ram Lal, which Ram Lal could not have sustained himself, and that, therefore, the plaintiff's suit was unmaintainable. It cannot be questioned for a moment that the plaintiff is in all respects in the shoes of his assignor Ram Lal, and that he cannot maintain any action of the kind which has been brought here which his assignor Ram Lal could not have sustained. We have only then to consider whether the present action would have been barred, if Ram Lal had brought it, by the rule of section 244 of the Civil Procedure Code. It seems to us, that the claim of Ram Lal against the appellant, for the refund of the price of the property which he did not choose to take possession of, in consequence of the alteration of the price fixed for the same by the appellate Court, is a question arising between Ram Lal plaintiff in that former suit, and the present appellants-defendants in that suit, in which the pre-emptive decree was passed, in obedience to which Ram Lal deposited Rs. 1,595, and that this question related to the execution, discharge, or satisfaction of the decree. It is obvious that when the money was paid, the payment related to the execution, discharge, or satisfaction of the decree. But it is argued that when the time fixed by the appellate Court, for the payment of the increased price had expired, there was; no decree in existence, and that, therefore, no question of section 244 can arise.
3. This is not a sound contention, for by the provisions of section 214 it is enacted, that when in a pre-emption suit 'the Court finds for the plaintiff, if the amount of the purchase-money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase-money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property; but, that if such money and costs are not so paid, the suit shall stand dismissed with costs.' Accordingly, when at the expiry of the time fixed by the decree of the Court, the additional sum required to make up the full price, was not paid by Earn Lal, there stood and still stands the decree in the suit, dismissing Ram Lal's claim, and under that decree Ram Lal could have come under section 244, Clause (c), and could have raised the question whether Rs. 1,595, which he had paid in execution of the decree nisi, so to speak, was not repayable, to him by the defendants, who had received it, when the decree assumed another aspect. It was argued by Mr. Jogindro Nath, on behalf of the respondent, that this question could not be called a question relating to the execution of the decree, inasmuch as, the execution of the decree was out of question at the time that Ram Lal could have applied for the restoration of the-money; and secondly, because the payment, having been made out of Court, that payment was not such as to raise a question relating to the execution of the decree.
4. As for, the first argument, there was and is a decree in the case to which the question of the refund of Rs. 1,595 wrongly drawn by the defendant appertains. As to the other point, it is sufficient to say that the payment was made in fall conformity with the provisions of section 258 of the Code and was a payment into Court. In this view of the matter, it seems to us that the action brought by Koji Earn, the representative and assignee of Ram Lal, is an action that was not sustainable under section 244 of the Code, and that the suit must be dismissed with costs; the result of which is that this appeal prevails with costs.