1. This second appeal arises out of the following facts. Ashriff Ali sold 6 Bighas 10 Biswas of land in corporated in Khasra No. 370 to one Surat Singh, Mutation in respect of this land was sanctioned in June 3, 1942. One Kundan filed a suit for pre-emption in respect of this sale on May 4, 1943. Since the sale had been made for a sum of Rs. 350/- only, it was prayed in the suit for pre-emption that a decree be granted in favour of the pre-emptor on the payment of this amount. This suit was dismissed by the learned Sub-Judge, Chhachhrauli, on November 22, 1946. On appeal, the learned District Judge decreed the suit on February 15, 1947. The learned District Judge passed the usual decree ordering that in case the sum of Rs. 350/- was paid on or before March 15, 1947, the suit filed by the pre-emptor shall stand decreed and in case of default the suit would stand dismissed. It is not disputed that the pre-emptor deposited a sum of Rs. 340/- only. In other words, the decretal amount short of Rs. 10/- only was deposited.
On June 26, 1947, the decree-holders took out execution proceedings and it is stated by the learned counsel for the appellants that no notice regarding these proceedings was served upon the appellants. Even though the entire amount which was to be deposited under the pre-emption decree was not deposited by the respondents, they succeeded in getting possession of the land under orders of the Executing Court. On October, 23, 1954, the present appellants filed a suit on the ground that since the respondents did not deposit the entire amount which they were called upon to deposit under the pre-emption decree, they were not entitled to dispossess the appellants. It was prayed in this suit that a decree for possession be granted in favour of the appellants. Both the Courts below have dismissed this suit on the ground that the matter in dispute relates to execution, discharge or satisfaction of the decree and was, therefore, barred under Section 47 of the Code of Civil Procedure.
2. The learned counsel for the appellants has prayed that in pre-emption case the decree passed by a Court in a conditional decree. In case the pre-emption amount is not deposited on or before the date when it is ordered to be so deposited. The suit for pre-emption stands automatically dismissed. In that event it cannot be said that any decree in favour of the pre-emption was in existence. If there was no decree in favour of the pre-emptors, then the question of its execution, discharge or satisfaction does not arise. The learned counsel for the appellants has also relied upon a Full Bench decision of this Court in Surinder Nath v. Ram Sarup, AIR 1944 Lah 294, in which it was observed as under:--
'Where the party to the suit, against whom the suit has been dismissed does not choose to go to the executing Court either because he has no knowledge of what is happening there or because having knowledge he feels that he should wait and see what ultimately happens then in his case it cannot be said that by not going there the question is constructively decided against him. Such a person has two concurrent remedies and he can choose either of them. If he acquires knowledge that his property is being wrongfully taken in execution of the decree he may choose the expeditious remedy of going to the executing Court and if he chooses that remedy, Section 47 will bar his subsequent suit for the same relief. But if either after having acquired knowledge or through ignorance he takes no steps to object to the wrongful sale of his property by the executing Court on no principle of law can his separate suit to take possession of the property wrongfully sold by the executing Court be held barred.'
3. I see considerable force in the argument advanced by the learned counsel for the appellants. In case the express direction of the Court is not complied with by the so-called decree-holder in a pre-emption suit, then it cannot be said that the litigation results in a decree in his favour. Under these circumstances he is not at all entitled to take out execution proceedings. If such a pre-emptor decree-holder joins hands with some unscrupulous ministerial officials of a court and succeeds in dispossessing the vendee of the property lawfully purchased by him, he cannot be allowed to retain such a benefit because that would be tantamount to allowing him to retain the benefit which he has been able to secure by employing underhand means. The Code of Civil Procedure is meant for doing justice between the parties and cannot be used as a tool by a party to retain an undeserved advantage.
The learned counsel for the respondents has however drawn my attention to Saghar Mal v. Havat, 38 Punj Re 1898. In that case, it was held that whether the purchase money had been deposited in time was one arising between the parties to the suit in which the decree was passed and related to the execution thereof. It appears that the Chief Court was concerned with a case in which a due notice of the proceedings had been served upon the opposite side. As already observed, in this case the allegations of the appellants are that no notice of the execution proceedings was served upon them. In any case, in view of the decision in Surinder Nath's case AIR 1944 PC 294 (supra). I am not bound to follow a judgment of the Chief Court.
4. It was then stated by the learned counsel for the respondents that it has yet to be determined whether the respondents in fact deposited Rs 340/- instead of Rs. 350/- as ordered by the Court which passed the decree in their favour. On this point, I may observe that in paragraph No. 3 of the plaint the appellants had made a positive assertion that the other side had deposited a sum of Rs. 340/- only though it was called upon to deposit Rs. 350/-. In the written statement a very vague reply has been given to this paragraph inasmuch as it has been stated as follows:--
'Regarding paragraph No. 3 it is admitted that the possession of land in dispute was taken on June 26, 1947 by taking out execution proceedings. The rest of this paragraph is denied.'
The respondents did not set up an express plea that they deposited the sum of Rs. 350/- as ordered by the Court decreeing their claim. In this view of the matter, I would accept this appeal, set aside the decrees passed by the learned Courts below and remand the case back to the learned trial Court with the direction that it should determine the basic question 'whether on March 15, 1947, the litigation in the pre-emption suit resulted in a decree in favour of the respondents or not.'
5. The parties through their counsel are directed to appear before the learned trial Court on November 27, 1972.
6. Case remanded.