Sharma, J. - (1.) THIS is a second appeal by Suraj Karan who obtained a preliminary decree for pre-emption against Ganesh Lal and Nathulal (hereinafter to be referred to as the vendees) and Ramnarain (hereinafter to be referred to as the vendor) on the 25th of May, 1945. The decree, translated into English, is in these terms : - "the suit is decreed with costs. The plaintiff should deposit Rs. 1799/- Kaldar within three months in the court to be given to the defendant. The defendant should, after such deposit, transfer the property in favour of the plaintiff by delivering possession of it to him and take his money. The right of the plaintiff shall accrue on the date of such payment. If this payment is not made in the period fixed, that is up to 29th August, 1945, his suit shall be dismissed with costs. " The plaintiff appellant deposited the amount within the time prescribed by the decree, and on the 26th of July, 1946, final decree was passed. The appellant put this decree into execution, but the Dharmarth Department of Jaipur State resisted the execution, whereupon the appellant filed an application under Order XXI, Rule 97, for delivery of possession. THIS application was dismissed. The vendee, after the dismissal of the last mentioned application, applied to the court for the payment of money deposited by the appellant. The appellant, however, objected, and the learned Civil Judge, Jaipur City, made an order that the money should remain in deposit in court till the possession of the suit property was delivered to the appellant. Against this order, the appellant went in appeal to the court of District Judge, Jaipur City, who has reversed the order of the first court, and has ordered that the money be paid to the vendee. The vendee has also been awarded his costs. The decree-holder, Suraj Karan, comes in second appeal to this Court.
(2.) IT has been argued by the learned counsel for the appellant that the lower appellate court was not justified in varying the terms of the decree, as an execution court is not entitled to make such variation. IT was further argued that the lower appellate court had wrongly stated in its judgment that the counsel for the appellant consented to the money being paid to the vendee. IT was argued that such a statement was made not in connection with the present case but in the appeal against the suit filed by the vendee against Ramnarain vendor for the recovery of the amount for which the property was sold IT was further argued that even if such a statement was made by the counsel for the appellant, it could not legally bind the appellant. Reliance was placed for this on the ruling of this Court in the case of Tilokchand vs. Nawulram (1951 R. L. W. 252 ). On behalf of the vendee respondent, it was argued that in the first instance there was no variation in the terms of the decree which was in the usual form prescribed by Order XX, Rule 14, of the Code of Civil Procedure. It was no-where laid down in the decree that the money should be paid to the vendee only in case he delivers possession to the decree-holder. It was further argued that even if it be assumed that the counsel for the appellant consented to the variation of the decree, such consent is binding upon the appellant after it has become operative by the decree having been passed in accordance with it. It was further argued that by means of a pre-emption decree a pre-emptor is substituted for the vendee, and after the pre-emptor deposits the money on payment of which the decree is passed, he becomes entitled to all the rights which the vendee possesses, If, therefore, the vendor had no right in property, the pre-emptor can file a suit against the vendor for the sale consideration. Rulings reported in Gobind Dayal vs. Inayatullah and Brij Mohan Lal vs. Abdul Hasan Khan (I. L. R. 7 All. 775) and Abdulla vs. Amir-ud-din and others (1902 P. R. 76) were relied upon. I have considered the arguments of both the learned counsel. It was held in Gobind Dayal vs. Inayatullak and Brij Mohan Lal vs. Abdul Hason Khan (I. L. R, 7 Allahabad 775) by Mahmood, J. that "the right of pre-emption is not a right of 're-purchase' either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. " The learned Judge proceeds to say that "it is, in effect, as if in a sale-deed the vendee's name were rubbed out and the pre-emptor's name inserted in its place. Otherwise, because every sale of a pre-emp-tional tenement renders the right of pre-emption enforceable in respect thereto, every successful pre-emptor obtaining possession of the property, by the so-called "re-purchase" from the vendee, would be subject to another pre-emptive claim, dating, not from the original sale, but from such "re-purchase" - a state of things most easily conceivable where the new claimant is a pre-emptor of a higher degree than the pre-emptor who has already succeeded. The result would be that pre-emptive litigation could never end. " According to Order XX, Rule 14 (1) (b), of the Code of Civil Procedure, the appellant's title to the property accrued from the date of payment of money, that is, Rs. 1799/ -. This money was paid in court on the 29th of August, 1945. On this date the appellant got all the rights which the vendor possessed, and it would be deemed as if the name of the vendee was rubbed out from the sale deed and that of the appellant substituted. The appellant, therefore, became entitled to recover possession of the property after the 29th of August, 1945) or in case the consideration failed, to file a suit for the refund of consideration against the vendor. No title remained in the vendee after the 29th August, 1945, and he could not legally file the suit for the possession of the property. The vendee is entitled, under the terms of the decree, to the pre-emption money, and the appellant is entitled to the possession of the property. The appellant cannot prevent the vendee from withdrawing the money on the ground that he has not been able to obtain possession of the property. In Abdulla vs. Amir-ud-din and others (1902 P. R. 76) the holder of a decree for pre-emption duly deposited the purchase money in court as directed. Subsequently a reversioner of the vendor brought a suit to have it declared that the sale was without necessity, and should not be allowed to affect his rights, and obtained a decree. The pre-emptors then asked the Munsif for the return of their purchase money as they no longer wished to go on with the purchase, as their decree of pre-emption had been superseded by the declaratory decree. The Munsif, without informing the vendee, ordered the refund of the money. The vendee appealed to the Divisional Judge, who declined to interfere, on the ground that the procedure for paying money into court in pre-emption cases was not a procedure in execution of a decree, and that he had no jurisdiction to hear an appeal from such an order. It was held by the Punjab Chief Court that "as a pre-emptor by reason of a legal incident to which the sale itself was subject steps into the vendee's shoes, it is the vendee and not the pre-emptor who has the control of the purchase-money which forms the consideration for his resigning to the pre-emptor his right and title to the property. It would be most anomalous to allow the pre-emptor, after he has obtained a decree, and paid in the purchase-money to be allowed to change his mind suddenly and take back his money, and that the fact that he had made a bad bargain and would have to pay off reversioners could make no difference to his legal position," This ruling was sought to be distinguished on behalf of the appellant on the ground that in that case the pre-emptor changed his mind and refused to take the property and wanted his money back, whereas in the present case the pre-emptor is not unwilling to take the property, if he can get it. I do not think that for this distinction alone the principle decided in the said ruling should not apply to this case. The principle is that after the pre-emptor has got a decree for pre-emption and deposited the pre-emption money, he is substituted in place of the vendee and gets all the rights and interest of the vendor from the date of deposit of money and the vendee loses all such rights and becomes entitled to receive the pre-emption money. This is the position which obtains in law and the learned counsel for the appellant was not able to convince me that he was entitled in law to prevent the vendee from withdrawing the money from court. His argument, however, was that because it has been provided in the decree that money should not be given to the vendee, unless possession is delivered to the appellant decree-holder, the executing court could not go behind the decree. On a careful reading of the decree, I am afraid, I cannot agree to the interpretation put upon it by the learned counsel for the appellant. The decree is in the usual terms, provided by Order XX, Rule 14 (1) (b of the Code of Civil Procedure. It only says that the money shall first be deposited by the pre-emptor decree-holder and thereafter possession would be delivered to the pre-emptor and money shall be withdrawn by the vendee. The decree nowhere says that money de-posited by the pre-emptor shall not be given to the vendee unless he gave possession of the property to the pre-emptor. It cannot, therefore, be said that the lower appellate court made any variation in the terms of the decree. On the interpretation which I have put Upon the terms of the decree, it becomes unnecessary for me to decide whether the consent given by the counsel for the appellant could bind the appellant or not. There was no force in the pre-empotor's contention put forward before the first appellate court. The appeal was bound to be dismissed irrespective of any consent of the counsel for the pre-emptor decree-holder. I do not find any force in the appeal, and it is dismissed with costs to the contesting respondent. . ;