1. This is an appeal against an order of the second temporary Civil and Sessions Judge, Allahabad, by which he set aside the judgment and order of the learned Munsif refusing restitution to the respondents under Section 144, Civil P. C. The facts are these: On 17th November 1932 a sale-deed was executed by Sayeed Khan in favour of Jumai and another for Rs. 300. The consideration was made up as below : (1) Rs. 125 due to Mt. Umatunnissa Bibi under a mortgage. (2) Rs. 60 paid in cash before the Sub-registrar. (3) Rs. 115 due to Shamsh Uddin. This sale was pre-empted by Mt. Umatunnissa Bibi. The suit was decreed conditional on the payment by her of a sum of Rs. 240. In other words, the Court accepted the sum of Rs. 125 as the sum due to her under the mortgage and Rs. 115 due to Shamsh Uddin.
2. The payment of RS. 60 in cash before the Sub-registrar was not accepted. She was directed to pay this amount within two months of 12th December 1938. On 18th January 1939, the plaintiff filed a tender for a sum of Rs. 115 after deducting the sum due to her under the mortgage and really deposited this amount on 19th January 1939. On 8th February 1939, the learned Munsif ordered delivery of possession to the lady and she obtained possession in pursuance of Ms order. On 17th September 1941, the application for restitution was made by the vendee on the ground that the lady had no eight to deduct Rs. 125 from the decretal amount. It is obvious that Section 144, Civil P.C., has no application. There was no decree under which the appellant obtained possession and which has now been varied or reversed. The decree under which she obtained possession was a decree of the learned Munsif and that decree stands up-to this date. It may be that the respondent feels that the delivery of possession ordered by the Court in her favour was wrong but the decree still remains a good decree. It is, therefore, manifest that to the relief of restitution the respondent is, on the plain terms of Section 144, Civil P.C., not entitled.
3. I am aware of those decisions which have held that Section 144, Civil P.C., is not exhaustive of the principle of restitution, for instance Amba Lal v. Ram Gopal Madho Prasad : AIR1933All218 . There is a Privy Council case also, Rohani Ramandhwaj Prasad Singh v. Har Prasad Singh but once it is held that the respondent is not entitled 'to take his stand upon the statute itself, it is a matter of discretion with the Court to grant or refuse the relief. I have come to the conclusion that the present is not a fit case in which the discretion should be exercised in favour of the respondents. It is not clear from the judgments that the Courts below were conscious of it that Section 144, in its terms, had no application. The appellant is the niece of the vendor, as I find from the judgment of the learned Munsif in the pre-emption suit. She is also admittedly the zemindar. After all, the object of preemption is to keep off a stranger in favour of a relation or a cosharer and the plaintiff fulfils both the capacities. She came in possession under an order of the Court and it was open to the defendants, at that stage, to take the objection which they are pressing in the application for restitution. On a consideration of all the facts, I have come to the conclusion that this appeal should be allowed and the application for restitution dismissed. The learned Counsel for the respondents contends that the application was made under Section 151, Civil P.C. I do not think the respondents could invoke the aid of this section. They could, if they had any right, oppose the appellant's prayer for delivery of possession. They had a remedy then, but they slept over it. They cannot fall back upon Section 151 now. This is what was in effect held by this Court in Rahmat Bibi v. Chandu Lal ('39) 26 A.I.R. 1993 All. 497. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of the first instance. The parties will bear their own costs throughout.