1. This appeal arises under somewhat peculiar circumstances. Property was sold by Amrit Prasad Rai and Mahadeo Rai to the defendant-appellant, the purchase-money being Rs. 925 out of which Rs. 435 were left in the hands of the vendee for the purpose of discharge of a mortgage on other property of the vendors. The plaintiffs in the present suit brought a suit for pre-emption which resulted in a decree in their favour conditional on their paying into Court the sum of Rs. 925. The vendors apparently took no exception to the terms of this decree, though they were parties to the suit. The consequence was that the vendees-defendants in the pre-emption suit drew out of Court the whole Rs. 925, although they had not, as a matter of fact, paid the mortgagee. The mortgagee then brought a suit against the vendors and obtained a decree, which the vendors satisfied in order to save the property. The vendors then brought a suit purporting to be under the provisions of Section 55, Clause 4 (6), of the Transfer of Property Act, making both the vendee and the pre-emptors parties to the suit. The vendee appeared and defended the suit. The pre-emptors did not appear and the result was that a decree for sale of the pre-empted property was made to enforce the alleged statutory-charge for the unpaid purchase-money. The pre-emptors then paid the amount of the decree in order to save the property and instituted the present suit to receive the amount from the vendee in the pre-emption suit.
2. The question is whether under these circumstances the defendant is liable.
3. The Court of first instance granted a decree which was affirmed by the lower Appellate Court.
4. It seems to us that the plaintiffs in the present suit, when they paid the full amount of the purchase-money into Court under- the decree in the pre-emption suit, fully discharged all personal liability and also all liability against the property they had pre-empted. The money when paid into Court was there for the persons entitled to it. In any event the vendors had every opportunity of asking the Court to safeguard their interest by directing that the Rs. 435 should be paid to them or to their mortgagee. If the vendors neglected to look after their interest that was their own fault. This being the case, it appears to us that if the plaintiffs in the present suit (the pre-emptors) had defended the suit which the vendors brought, they would have had a complete defence. They could have shown the Court that 'the ownership of the property had not passed into their hands' until after they had paid into Court the entire purchase-money, and that, therefore, there was no longer any statutory lien on the pre-empted property in their hands. It comes to this that a decree was made against the present plaintiffs which ought never to have been made and which in all probability would not have been, if they had defended the suit. If it had been, the plaintiffs would still have had their remedy by way of appeal. It is said that at the time the suit was instituted by the vendors to enforce the statutory lien, any personal right they may have had against the vendee was barred by limitation. If this be correct, then the vendors' suit would have failed in toto. We cannot see under the circumstances of the present case how the plaintiffs can bring home liability to the defendant.
5. The result is that we allow the appeal, set aside the decree of both the Courts below and dismiss the plaintiffs' suit. The parties will bear their own costs in all Courts.