MT BALKESHA KUNWAR Vs. HARAKH CHAND

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The sale which forms the basis of the suit was made by Harakha Chand, defendant No. 1, in favour of the defendants Nos. 2 to 7 on the 16 of March 1928. The property transferred consisted of shares in two villages. After the date of the sale, that is, on the i5 of April 1929, one Jaganath, a tenant of one of: the vendees, brought a suit against Kalap Nath, plaintiff No. 2, a minor, for a sum of money, and obtained a degree. In execution of this decree for money Kalap Naih's property in the two villages in suit was sold by auction on 21 August 1929 and was purchased by defendants 2 to 7. The sale was confirmed and possession was delivered to them on the 19 and 20 of October 1929. On the 23 October 1929 in application was made on behalf of Kalap Nath for setting aside the sale. The application purported to be made under Order 21, Rule 90, but subsequently it was settled that the application must be understood to have been made under Order 21, Rule 89. Kalap Nath applied to deposit the purchase money under Order 21, Rule 89, but he made his application after a period of 30 days and asked for permission to extend the period on the ground that the sale proceedings and sale itself had been kept concealed from him by fraud. The decree in the pre-emption suit was passed on the 23 November 1929. On that date, the learnad Subordinate judge held that plaintiff No. 2 had no subsisting title in the villages in suit and therefore had no right of pre-emption. The property to plaintiff No. 2, in the villages in suit had been sold to defendants 2 to 7 by the auction-sale on the 21 August 1929 and the sale had been confirmed. Although an application had been made by plaintiff No. 2 on the 23 Oetober 1929 for setting aside the sale, no order had been passed by the learned Munsif before the 23 of November. On that date, therefore, the trial Court found that the plaintiff No. 2 had no subsisting right of pre-emption and accordingly dismissed the suit.

(2.) Subsequently, that is on the 20 of August 1930, the learned Munsif set aside the auction-sale, finding that the proceedings were tainted by fraud. The Munsif's order was upheld on appeal by the learned Subordinate and on second appeal by the High Court. It is argued for the plaintiff-appellant No. 2 that as the auotion.sale by which he was alleged to have lost his title had been set aside, he never lost his proprietary right which entitled him to sue for pre-emption. The respondent has relied upon the ruling of a Bench of this Court in Umrao V/s. Lachh- man A.I.R. 1924 All. 448. That was a converse case; but it was held that in pre- emption suits an appellate Court should pay no regard to any event which happened subsequent to the date of the first Court's decree. That was a case where the plaintiff had a subsisting right at the date of the trial Court's decree; but owing to a subsequent decree he lost the status of a co-sharer. It was held that the plaintiff's right cannot be defeated by reason of some event which happened subsequent to the first Court's decree. If the same principle is followed in this case, it should be held that although the auction-sale has been set aside subsequent to the date of the first Court's decree, that event would not affect the plaintiff's right to obtain a preemption decree. As the case before us is the converse case of that dealt with in the ruling cited, and we feel that the question raised is of some difficulty, we dircet that the case be laid before the Chief Justice for being decided by a larger Bench. King, J.

(3.) This reference arises out of a suit for pre-emption.