1. The first plea fails. No absolute right of pre-emption was established by the decree; the decree made the right conditional on payment of the purchase-money within a certain period. Failing fulfilment of this condition, the right under the decree became null and void and the decree incapable of execution. Whether or not such a conditional decree could be legally made (and the counsel for the appellant denies that it can) is not a question for us to consider in execution of the decree; if there is force in the objection it is one which applies to the decree, and should have been taken by review of judgment.
2. The next objection raises the question as to when the judgment of the Court of First Instance is to be held as having become final. It is alleged by the appellant that it ought to be held as becoming final on the 9th December 1874, when this Court gave its order allowing the appellant to withdraw the special appeal. We are, however, of opinion that, under the circumstances of this particular case, the judgment became final on the 19th May 1874 when the Judge affirmed the decree of the Court of First Instance. What took place in the special appeal did not and could not affect the finality of the Judge's decree. There was no decision after a hearing but only a withdrawal, by which course the plaintiffs showed the judgment to be not open to revision. So far as affecting the finality of the judgment of the Judge in regular appeal, we must look on the proceedings in special appeal as though non-existent, and in consequence hold that the judgment of the Court of First Instance became final when affirmed by the Judge in regular appeal, and that therefore the order of the lower Appellate Court should be affirmed, and this appeal should be dismissed, and we dismiss it with costs.
2. Our attention has been drawn to a case decided by a Bench of this Court Shaikh Ewaz v. Mokuna Bibi I.L.R. 1 All 132, where a somewhat similar question was before the Court, but there is this distinction between the two cases, that in the one referred to the special appeal had been decided after trial, whereas in the case before us the appeal was withdrawn without trial.
Robert Stuart, C.J.
3. I have signed this judgment because I think that, under the circumstances of this case, it is right. But I wish to add that I am not to be understood as approving the practice of inserting conditions into decrees as to the time of payment or otherwise, notwithstanding the rulings of this Court to the contrary referred to.