Kidwai, J. - (1.) The facts of this case are set out in the referring order and need not be repeated. The question for consideration is what is the true meaning to be assigned to the relevant provisions of Section 13, Oudh Laws Act, which reads as follows : "Any person entitled to a right of pre-emption may bring a suit to enforce such right on any of the following grounds (namely) : (a) that no due notice was given as required by Section 10 ; (b) that tender was made under Section 11 or Section 12 and refused ; (c) in the case of a sale, that the price stated in the notice was not fixed in good faith ; (d) in the case of a mortgage, that the amount claimed by the mortgagee was not really due on the footing of the mortgage and was not claimed in good faith, and that it exceeds the fair market-value of the property mortgaged, or the portion of the property mortgaged in respect of which he possesses the right of pre-emption, as the case may be. If, in the case of a sale, the Court finds that the price was not fixed in good faith, the Court shall fix such price as appears to it to be the fair market-value of the property sold, or the portion of the property sold in respect of which he possesses the right of pre-emption as the case may be. If, in the case of a mortgage, the Court finds that the amount claimed by the mortgagee was not really due on the footing of the mortgage, and that it was not claimed in good faith and that it exceeds the fair market-value of the property mortgaged, or the portion of the property mortgaged in respect of which he possesses the right of pre-emption, as the case may be, the amount to be paid to the mortgagee shall not exceed what the Court finds to be such market-value."
(2.) In the present case the notice required by Section 10 was not given. The plaintiff had, therefore, a right, under Section 13 (a), to institute the suit and it has been found that he had a preferential right to pre-empt. It has to be determined what is the sum upon payment of which pre-emption is to be allowed.
(3.) Normally pre-emption can be allowed upon payment of the amount mentioned in the foreclosure decree. The last para, of Section 13, however, provides an exception. Giving the language used by the Legislature its prima facie meaning three conditions require to be fulfilled before the exception comes into operation. These conditions are : (1) It must be shown that the amount entered in the decree was not really due on the footing of the mortgage : (2) It must be shown that the amount was not claimed in good faith: and (3) It must be shown that the amount for which the foreclosure decree was passed exceeds the fair market-value of the property mortgaged.;