Henry Richards, Kt., C.J., Pramada Charan Banerji and Tudball, JJ.
1. The facts out of which this and the connected appeal, No. 28 of 1913 under the Letters Patent, arise, are shortly as follows: Two suits for pre-emption were brought by rival pre-emptors, These suits resulted in decrees by which the pre-emptors obtained the property in equal shares, conditional upon their paying their half shares of the purchase money into court, within the time specified in the decrees. The time specified elapsed without the purchase money having been paid by either pre-emptor.
2. Applications were thereupon made, purporting to be under Section 148 of the Code of Civil Procedure, asking the court to extend the time of payment of the purchase money. The learned Munsif granted the application and extended the time. The purchase money was paid into court within the extended time.
3. Appeals were preferred by the defendants vendees against the order of the Munsif extending the time. Afterwards the decrees were put into execution. The appeal against the order of the Munsif extending the time coming before the District Judge, he held that Section 148 did not apply and accordingly set aside the orders of the Munsif.
4. Second appeals were then preferred to this Court by the decree-holders on the ground that the decision of the Munsif was correct and ought not to have been interfered with by the District Judge, and, secondly, on the ground that no appeal lay to the District Judge. The vendees filed applications in revision contending that the Munsif had no jurisdiction under Section 148 to extend the time. The second appeals and the applications in revision came before a learned Judge of this Court, who held that an appeal did lie to the District Judge and that his orders setting aside the orders of the Munsif were correct, and dismissed the second appeals. The applications for revision were dismissed because the learned Judge thought that there was no necessity for revision.
5. The plaintiffs have appealed under the Letters Patent.
6. The first question which we propose to deal with is whether the learned Munsif was right in extending the time for the payment of the purchase money under the provisions of Section 148 of the Code of Civil Procedure. That section Is as follows: 'Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired'.
7. It is contended on behalf of the appellant that Order XX, Rule 14, 'prescribes' or 'allows' the payment into court of the purchase money by the successful pre-emptor. On reading Order XX, Rule 14, it will at once appear that all that is 'prescribed' by the Code is the form which the decree in a pre-emption suit is to take where the plaintiff is successful and has not paid the money into court before decree. It nowhere prescribes or allows the payment into court of the purchase money. Such payment is in reality an incident of the claim for pre-emption. All that the order provides for is uniformity in the form of the decree which the courts make. We agree with the view taken by the learned Judge of this Court that Section 148 does not entitle the court to extend the time fixed by the decree for the payment of the purchase money in pre-emption cases.
8. The next question is whether an appeal lay from the decision of the Munsif to the District Judge. Appeals only lie from decrees as defined by Section 2 of the Code of Civil Procedure and from orders as specified in Section 104. It seems to us that an order made under Section 148 is clearly not an appealable order and is not a decree within the definition in Section 2, nor is it an order covered by Section 104. The only way therefore in which this order could have been set aside was by an application in revision to this Court. We at present have no application in revision before us.
9. The learned Judge of this Court was of opinion that he was bound by the ruling in Rahima v. Nepal Rai (1892) I.L.R., 14 All., 520. In that case it was held that an order under Section 87 of Act No. IV of 1882 extending the time for payment of the mortgage money by a mortgagor was a decree within the meaning of Sections 2 and 244 of the Code of Civil Procedure of 1882. We may point out that that case entirely proceeded under the rulings of this Court in which it had been held that proceedings under the Transfer of Property Act, subsequent to decree, were questions relating to the execution, discharge or satisfaction of the decree. This is certainly not so under the new Code. Special provision is, however, made for mortgage decrees and orders refusing to extend the time are expressly made appealable under Order XLIII, Rule 1, Clause (o).
10. Under these circumstances we must allow the appeal, and set aside the decree of this Court and also of the District Judge. The parties will pay their own costs.