1. This revision petition has been filed by Avtar Singh defendant against the order of the Subordinate Judge III Class, Sirsa, Dt. 27th Aug., 1981, allowing the application of Banarsi Das respondent to redeposit Zar-e-panjam.
2. Briefly, the facts are the that Nathu Ram sold the property in dispute in favour of Avtar Singh petitioner vide sale-deed Dt. 28th July, 1977. Two suits for possession by pre-emption were filed--one by Ramesh Kumar and the other by Banarsi Dass, son and nephew of the vendor, respectively. Both the suits were consolidated by the trial Court and decided together. It came to the conclusion that both the plaintiffs had superior right of pre-emption. Consequently it decreed the suits with the direction that Ramesh Kumar plaintiff would deposit the amount of Rs. 32,766/- less the amount of Zar-e-panjam, on or before 5th June, 1980, failing which the suit of Banarsi Dass would stand decreed and he would deposit the pre-emption amount on or before 13th June, 1980. In case he failed to do so, then both the suits would stand dismissed.
3. The vendee petitioners filed an appeal on 13th June, 1980. Against the judgment and decree of the trial Court which was accepted by the appellate Court on 27th Oct., 1980. And the case was remanded after framing two additional issues for deciding the matter afresh.
4. Banarsi Dass respondent withdraw his Zar-e-panjam during pendency of the appeal on 14th Aug., 1980, and after the remand he made an application to the trial Court on 10th Nov., 1980, to allow him to redeposit the Zar-e-panjam which was allowed by the trial Court vide the impugned order. The vendee-petitioner has come up in revision to this Court.
5. The only question that arises for determination is that after the money having been withdrawn by respondent. No. 2, whether the Court could allow its re-deposit by him after remand of the case. Sub-section (1) of S. 22 of the Punjab Pre-emption Act, 1913, inter alia provides that in every suit for pre-emption he Court shall at, or at any time before, the settlement of issues. Require the plaintiff to deposit in the court such sum as does not exceed one-fifth of the probable value of the land or property. Clause (a) of sub-section (5) of that section says that if any sum so deposited is withdrawn by the plaintiff. The suit or appeal shall be dismissed. From a reading of the two sub-sections, it is evident that I the plaintiff with-draws Zar-e-panjam the Court is required to dismiss his suit.
6. Adverting to the facts of the present case, it is clear that after the remand, the suits of both the plaintiffs revived. The suits of respondent No. 2, in view of clause (a) of sub-sec (5) ibid, however, was liable to be dismissed a she had withdrawn Zar-e-panjam. The Court is not empowered under S. 22 or any other provision of the said Act to order re-deposit of Zar-e-panjam once it has been withdrawn.
7. The learned counsel for respondent No. 2 has urged that Zar-e-panjam was withdrawn during the pendency of the appeal and the suit, therefore, cannot be dismissed after remand. In support of his contention. He places reliance on Sanwal Das v. Jaigo Mal, AIR 1924 Lah 68. I am not impressed with the contention. In that case, the suit was decreed in favour of the plaintiffs and the vendee obtained a stay order in appeal. The plaintiffs thereupon were allowed to withdraw the pre-emption money deposited in accordance with the decree of the Court. The counsel for the appellants argued that on account of the withdrawal of pre-emption money, the suit of the plaintiff-respondent was liable to be dismissed. In other words, he wanted the appeal to be accepted and suit dismissed. It may be highlighted that the amount was withdrawn with the permission of the Court and the reason to grant permission was that the dispossession of the vendee appellant had been stayed by it. It is in these circumstances that the Court observed that the deposit was a token of good faith and once the pre-emptor obtained a decree the need for deposit no longer existed so far as the trial Court was concerned. The counsel for the petitioner cannot derive any benefit from the said observations.
8. Before parting with the case, a preliminary objection raised by the learned counsel for respondent No. 2 may be noticed, It is that the order of deposit of Zar-e-panjam was made by the trial Court under S. 151, C. P. C., and, therefore, no revision petitioner is maintainable against that order. There is nothing in the order to show that the order was passed under S. 151, C. P. C. Merely because at the time of arguments here it is discovered that the Court could no order redeposit under S. 22 of the Punjab Pre-emption Act. It cannot be assumed that the trial Court ordered the redeposit under S. 151 of the Code. Consequently, I dismiss the objection.
9. For the aforesaid reasons, I accept the revision petition and dismiss the application for re-deposit of Zar-e-panjam. No order as to costs.
10. Petition allowed.