Khurshed-Un-Nissa vs Alim-Un-Nissa

This and the connected Appeal No. 1386 of 1911, arise out of one and the same preemption suit. The claim is based upon a custom of pre-emption. The plaintiff challenged the accuracy of the price entered in the sale-deed. The Court of first instance held that the custom was proved and the consideration entered in the sale-deed was correct. It granted a decree conditional on the plaintiff paying into Court the amount of the purchase-money within one month. The plaintiff appealed against that decree simply in regard to the condition laid down by the Court of first instance as to the payment of the purchase-money. The defendant also appealed against the decree pleading that the plaintiff had failed to establish the custom. By the time the appeals came on for hearing in the Court below, the one month allowed in the original decree had elapsed. The plaintiff had not paid into Court the amount as ordered by that decree. The lower Appellate Court there upon held that as he had failed to do so, the decree of the Court below was one which dismissed the plaintiff''s suit, and that, therefore, the plaintiff''s appeal must fail and the defendant''s appeal must succeed. On this ground alone, the Court below dealt with two appeals. It is urged here with great force that the plaintiff''s appeal was against the very condition owing to the non-fulfillment of which (according to the lower Appellate Court) the suit had stood dismissed. We think that this contention is sound. It might, no doubt, have been advisable for the plaintiff to pay the money into Court in view of a possible failure of his appeal, and the refusal of the Appellate Court to extend the time. If his appeal succeeded on the question of consideration, the Court was bound to give him time to pay the amount due.

We, therefore, allow the appeal, set aside the decree of the Court below and remand the case to that Court for re-admission to the file and the decision thereof according to law. The costs of this appeal will abide the result of the case.