D.K. Mahajan, J.
1. This second appeal is directed against the concurrent decision of the Courts belowdecreeing the pre-emptor's suit. In the suit, the land and a house sold by Bachan Singh and Amar Singh in favour of Thakur Singh was sought to be acquired by pre-emption. The pre-emptor Partap Singh is a fifth degree collateral of the venders. The suit was decreed on the 30th October, 1959, on payment of Rs. 2,525/-. Against the decree an appeal was preferred by the vendee to a limited extent. The vendee merely wanted an addition of a sum of Rs. 200/- on account of compensation for improvements. In appeal Court-fee on Rs. 200/-alone has been paid and the pre-emption decree as such was not questioned.
2. During the pendency of the appeal before the lower appellate Court, the Pre-emption Act has been amended by the Punjab Pre-emption (Amendment) Act (No. 10 of 1960). This has led the vendee to make an application seeking permission to amend the memorandum of appeal and to include therein a ground based on the changed law for impeaching the pre-emption decree. It may be mentioned that under the amended law, the fifth degree collateral is no longer entitled to pre-empt a sale of village immovable property and so far the urban immovable property is concerned, the right is now only given to the tenant and none other.
Section 31 of the Pre-emption Act which has been added by the amending Act forbids passing of a pre-emption decree in a pending suit. An application under Section 5 of the Limitation Act was also filed to get over the bar of limitation which stood in the way of the amendment. The learned District Judge did not grant these applications. While dealing with this matter in appeal, the learned District Judge in paragraph 4 of his judgment observed:-
'The learned counsel for the appellant frankly admitted that he had nothing to say in support of the appeal. But he submitted an application under Section 5 of the Indian Limitation Act, Section 153 and Order 41, Rule 33 of the Civil Procedure Code praying that the appellant be allowed to amend the memorandum of appeal to enable him to challenge the decree as a whole and take up grounds in respect thereof. The learned counsel admitted that the Period of limitation for filing of appeal has expired, and consequently, it has been prayed in this petition that the delay be condoned under Section 5 of the Indian Limitation Act. The learned counsel conceded that he cannot add any ground of appeal and challenge the decree at this stage, because the limitation for filing the appeal has already expired. No ground has been made out by him to extend the period invoking the provisions of Section 5 of the Indian Limitation Act.'
As a result of the above, the learned District Judge dismissed the appeal. Against this decision the present second appeal has been preferred by the vendee. In the present appeal a ground has been taken that the pre-emptor has no right of pre-emption under the law as it now stands and therefore the appeal should be allowed and the pre-emptor's suit be dismissed.
3. The contention of the learned counsel for the appellant before me is based on the provisions of Order 41, Rule 33 of the Code of Civil Procedure. Rule 33 is in these terms:-
'The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although-such respondents or parties may not have filed any appeal or objection.'
4. It is urged that the appeal before the district Judge was pending, though only qua the amount of compensation for improvements and registration expenses, and therefore the entire matter was open to review by the learned District Judge because whatever decision he would arrive at would replace, the decision of the trial Court and therefore according to the rule laid in Ram Lal v. Raja Ram, 1960 62 Pun LR 291 which applies the new amendment to pending appeals the pre-emptor's suit should have been dismissed and this could be done by having resort to the provisions of Order 41, Rule 33 of the Code of Civil Procedure hereinafter reterred to as the Code.
It cannot be doubted that the powers of the Court of appeal under Order 41, Rule 33 of the Code are unqualified, but I am of the view that those powers are to be used only where the equities between the parties have to be adjusted in a case where either the appeal is against part of the decree or by some out of persons affected by the trial Court's decree-It is also well settled that the exercise of power under Order 41, Rule 33, of the Code is discretionary and that the discretion exercised by the lower appellate-Court should not be lightly interfered with in further appeal.
5. Mr. Babu Ram seeks to support this contention by reference to a decision of the Madras High Court reported as Kunjammal v. Krishna Chettiar AIR 1954 Mad 170. That was a case where the question that fell for decision was whether the trial Court's decree or the appellate Court's decree is the decree from which limitation is to be reckoned for purposes of execution in a case where the appeal had been preferred only against part of the decree, and it was held that it was the appellate decree from which the period of limitation is to be reckoned.
The ratio of this case is that there can only be one decree in the suit and if limitation is to be reckoned from the trial Court's decree then so far the appealed part of the decree is concerned, limitation qua that would only start from the date of the appellate decree and therefore there would be two decrees. This proposition will only govern those suits wherein only one decree can be passed and will have no applicability to suits wherein two decrees can be passed. This possibility is envisaged by Order 12, Rule 6 of the Code, which is in these terms:-
'Any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment, as the Court may think just.'
And two decrees can be passed -- one on the basisof admitted claim and the other on adjudication. See inter alia, the decision reported as Premsuk Das v. Udairam Gungabux, ILR 45 Cal 138 : (AIR 1918 Cal 467). Therefore, the question resolves itself to this as to whether in a suit for pre-emption in which compensation for improvements is claimed and certain amounts are claimed over and above the purchase price of the property sought to be pre-empted, a decree for pre-emption on payment of the purchase price plus the cost of improvements or other amounts claimed over and above the purchase price is an indivisible decree or two decrees have been rolled into one -- one decree for preemption and the other for compensation of improvements, etc.
If the answer is that two decrees are rolled into one then the appellant must fail because the appeal to the lower appellate Court was preferred only with regard to compensation and registration expenses. There was no appeal as such against the preemption decree. A reference to Order 20, Rule 14 of the Code, which is in these terms:-
'(1) Where the Court decrees a claim to preemption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall -
(a) specify a day on or before which the purchase-money shall be so paid, and
(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct -
(a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of Sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and
(b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.'
will illustrate my point because a decree for preemption can only be defeated if the purchase price and costs are not paid within the specified time. If they are paid within the specified time, as was done in this case, that decree would become final unless appealed against and if compensation for improvements, etc., is an integral part of that decree then non-payment of the compensation etc., determined by the Court would have also led to the same results as in the case where the purchase price and costs are not paid as stipulated in the decree. In my view, there is no provision in law under which non-payment of compensation, etc., can defeat the pre-emption decree- It is not I alone, who have come to this conclusion. I am fortified in my decision by a decision of the Punjab Chief Court in Aziz Din v.Sham Das, 91 Pun Re 1892. This decision has held the field right up-to-date without a single discordant note being struck so far. If the pre-emption decree cannot be defeated for non-Compliance of that part of the decree directing payment of compensation for improvements etc., then there can be no interference with the pre-emption decree under the powers conferred by Order 41. Rule 33 of the Code, when no appeal against the pre-emption decree as such has been preferred, but merely an appeal against the part of the decree dealing with compensation for improvements etc., has been preferred.
6. This matter can be looked at from another point of view. The vendee was satisfied with the pre-emption decree. His grievance was merely against the non-award of compensation, etc., which is a matter totally different from the pre-emption decree. So far he is concerned the pre-emption decree has become final having not been appealed against. He has no grievance against it and therefore cannot get that decree reversed by asking the Court to do so under Order 41, Rule 33 of the Code. This provision has no applicability, in this situation, particularly when interference is sought on account of a matter not inherent in the dispute but arising after the dispute had been settled. In this connection' it may be mentioned here that the right of pre-emption is a right' of substitution and the improvements,, if any, come into being after the date of the sale, whereas substitution takes place at the date of the sale.
In support of his contention to the contraryMr. Babu Ram has brought to my notice two FullBench decisions of the Punjab Chief Court in Thakur Das v. Tulsi Das, 70 Pun Re 1890 and WasawaSingh v. Lal Singh, 48 Pun Re 1908. None of thesedecisions applies to the facts of the present case.The matter now under consideration did not arisefor decision in any of these cases. I would therefore repel the contention of the learned counsel forthe appellant that I should act under Order 41, Rule 33of the Code and dismiss the plaintiffs suit. Thisprovision is not meant to reopen settled transactions.See Syed Unnisa v. Rahimuthunissa, AIR 1953 Mad445.
7. In any case, the lower appellate Court has exercised the discretion in the matter and I see no ground to interfere in the exercise of that discretion-merely on the ground that the law on which pre-emption decree was passed has undergone a change. There has to be a proper appeal pending before the change in law can be given effect to and proper appeal will only be pending if the matter in which the change in law is sought to be given effect to is properly before the appellate Court. That cannot be said to be the case here. See in this connection the observations in Rangam Lal v. Chandu, ILR 34 All 32 and Akimannessa Bibi v. Bepin Behari Mitter, AIR 1916 Cal 261, wherein power under Order 41 Rule 33 of the Code was not exercised in favour of a person who was unable to show sufficient cause for non-appealing in the former case and where bar of limitation had stepped in in the latter case.
8. So far the question of improvements goes-the learned counsel was constrained to admit that the decision of the lower appellate Court thereon-being a decision on a question of fact cannot be re-agitated in second appeal. No other point was urged.
9. After giving the entire matter my careful consideration I have come to the conclusion that there is no force in this appeal. I, therefore, uphold the decision of the learned District Judge and dismiss the appeal.
10. In view of the difficult nature of the question involved, I leave the parties to bear their own costs throughout. Leave to appeal under Clause 10 of the Letters Patent granted.