P.C. Pandit, J. - (1.) IN 1964, Dharma alias Ghona, by means of a registered sale -deed, sold his agricultural land to Mangal Singh and six others including Khida Singh, Ruldu Singh and Nauhar Singh. None of the vendees was shown as a minor in the said deed. Mathra Dass, alleging himself to be a co -sharer of Dharma, brought a suit for possession of the said land by pre -emption. It was contested by the vendues, but no plea was raised that any of the vendees was a minor. The suit was decreed by the trial Court on 2nd May, 1966. This decree was confirmed by the lower appellate Court on 10th of August, 1966, and then by this Court on 10th of March, 1967. At no stage was an objection taken by the vendees that any of them was a minor or that the decree passed was bad on that account. Mathra Dass then filed an application for the execution of the decree made in his favour. Khida Singh, Ruldu Singh and Nauhar Singh raised an objection before the executing Court to the effect that they were minors and the decree had been passed against them without the appointment of any guardian -ad -litem to represent them in the suit or at the appellate stage. The decree thus passed against them was null and void and could not be executed. The decree -holder contested the objection petition, as a result of which a number of issues were framed by the executing Court. After the parties had led their evidence, the counsel for the decree -holder made a statement admitting the minority of the above mentioned three vendees and praying that the decree passed against them be set aside and the original suit, on the basis of which the decree in question had been passed should be revived. The counsel for the minors stated that they had no objection to that course being adopted. On 21st of August, 1967, the executing Court accordingly set aside the decree passed against the minors on 2nd of May, 1966, and ordered the revival of the original suit filed against the vendees. Against this decision, the vendees went in appeal before the learned Additional District Judge, Bhatinda. The learned Judge came to the conclusion that the order of the executing Court restoring the suit to its original number fell within the provisions of section 151, Code of Civil Procedure, and was, consequently, not appealable. He, therefore, held the appeal to be incompetent and dismissed it. Against this, the vendees filed an Execution Second Appeal No. 51 of 1968 in this Court. It came up for hearing before B.R. Tuli J. on 24th September, 1968. It was conceded before the learned Judge by the counsel for the vendees that the appeal was not competent and at his request, it was treated as a Revision. The learned Judge was of the view that the decree, which was being executed by the trial Court, was the one which was passed by this Court on 10th March, 1967. The executing Court had, therefore, no jurisdiction to set it aside. There was no point in its reversing the decree dated 2nd May, 1966, because it had merged in the decree passed by this Court and was therefore, not operative. According to him, the order passed by the executing Court on 21st August, 1967, was without jurisdiction. The revision petition was, consequently, accepted and the order of the executing Court was set aside. It was, however, made clear by the learned Judge that it would be open to the parties to take such proceedings in the matter as might be permitted by law. Thereafter, Mathra Dass filed the present application (Civil Miscellaneous No. 2668/C of 1968) in this Court on 11th of October, 1968, praying that the original suit instituted by him might be revived from the stage of the issue of notice to the vendees after granting permission to him to implead the minors through their guardians.
(2.) THIS application has been placed before me, because the pre -emption decree granted in favour of Mathra Dass had been confirmed by me in second appeal on 10th of March, 1967. It is conceded by the learned counsel for both the parties that the original decree passed in the suit for pre -emption was a nullity, inasmuch as it had been passed against the minors who had not been properly represented before the Court.
(3.) NOW the question arises as to what would be the remedy of the plaintiff pre -emptor ?;