Decided on March 01,1957



- (1.) THIS is an appeal by Hari Chand defendant, in a suit for pre-emption decreed against him by Sub Judge 1st Class, Delhi. Defendants Nos. 2 and 3 sold their house situate in Gali Panibari, Teliwara, Delhi to Shrimati Kapuri Devi defendant no. 1 for Rs. 6000/-The sale-deed was executed on 21st September and registered on 25th September, 1949. On 6th October 1950, Gowardhan Das brought the present suit, basing his preferential right of pre-emption on the following grounds:- (a) contiguity of his house towards east of the house in dispute; (b) there being a common wall between the two houses; and (c) that water from a spout (pamal) and a drain (mori) of the plaintiff's house passed through the house in suit, thus giving him a right of easement. " in the month of September, the Courts were closed for summer-vacation and therefore the suit was within time.
(2.) DEFENDANT No. 1 in her written-statement disclosed that she had sold the house to Hari Chand appellant, and thereupon the latter was impleaded as defendant No. 4 in the suit. The sale-deed in favour of appellant was executed on 2nd September 1950 and registered on 4th December 1950. In his amended plaint the plaintiff denied all knowledge of this sale, and alleged that if there was one, it was fictitious, illegal and void. It was further submitted that since the sale took place after the institution of the suit it could have no effect and that, in any case, the plaintiff had a preferential right of pre-emption even as against defendant No. 4. Defendant No. 4 contested the suit alleging that the sale deed in his favour was executed in recognition of his pre-emptory right which was equal to that of the plaintiff, his own house being contiguous towards west of the house in dispute. The pleadings gave rise to the following issues: "1. Has defendant No. 1 sold the house in dispute in favour of defendant no. 4 ? 2. If issue No. 1 is proved, is the sale fictitious, illegal and void ? 3. Has the plaintiff a superior right of preemption to defendant No. 4 ? 4. Is the suit within time against defendant No. 4? 5. Relief. " the trial Court held that defendant No. 1 had sold the house in dispute in favour of defendant No. 4, that the sale was not fictitious or void, that the suit against defendant No. 4 was within time and that the plaintiff had a superior right of preemption. The suit was consequently decreed on payment by the plaintiff of Rs. 6000/- to defendant No. 4.
(3.) A preliminary objection as to the proper presentation of the appeal is raised on behalf of the respondents on the ground that the memorandum was not accompanied by a copy of the decree appealed against. The objection in fact is that the decree prepared by the trial Court, copy of which is filed with the appeal, is not in accordance with the provisions of Order XX Rule 6, Civil Procedure Code and is not capable of execution. Mr. Hardyal Hardy, learned counsel for the respondents, submits that the appellant ought to have applied for amendment of the decree by correction of the material clerical omissions therein and field the appeal after it was amended and made executable. It is correct that the decree is not properly prepared; it is hopelessly defective. The decree dos not recite the final decision of or the order made by the Court; the operative portion of the printed form of the decree-sheet is all left blank. It does not even state by which of the parties the costs, details of which are given, are to be paid. The whole thing does not reflect favourably on the staff which prepared the decree, and the Presiding Officer who failed to notice the defects when he signed the decree. They ought not to have been so negligent about it. All the same, the appellant was in no way responsible for the mistake. He cannot be penalised for any fault of the Court. It would bo unnecessarily prolonging the litigation, if I were to direct that a proper-decree Be prepared and that the appellant should then obtain a copy of the amended decree and file it with the appeal. A proper and executable decree can be prepared by this Court on decision of the appeal on merits, which would include the decree of the trial Court as well. I would therefore reject the preliminary objection and proceed to decide the appeal on merits.;

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