Wilayat Ali Khan vs Abdus Salam and Others

John Edge, Kt., C.J. and Knox, J.—The plaintiff in pre-emption paid into Court the amount to satisfy the pre-emptive price and costs, but he appealed to the High Court against the amount decreed. An ingenious creditor of the plaintiff presented an application for the attachment of part of the money paid into Court, and, extraordinary to say, he found a Judge who made an order on his application allowing it. Thereupon the amount which he claimed, amounting to Rs. 1,243, was paid out of Court, neither the defendants nor the plaintiff consenting. The plaintiff''s appeal was dismissed. He thereupon demanded possession. He was met with the objection that there was not enough money in Court to pay the decretal amount. That was quite true, but it was not the plaintiff''s fault. He had complied with the law. It was the fault of the Judge who allowed anyone except the defendant in the suit to draw any part of the money out of Court. The plaintiff appealed to this Court, and our brother Aikman, rightly holding that the plaintiff had complied with the decree in preemption, held that he was entitled to possession. There cannot be any doubt about it. Whether the unfortunate vendor or vendee, as the case may be, defendant in the pre-emption suit, has now any remedy to get this Rs. 1,243, to which he was lawfully entitled, we need not say. Money paid into Court in a suit cannot be taken out of Court by a creditor of the man who pays it in so-long as the suit is pending, or unless the result is that the person who paid it in is held entitled to withdraw the money or some part of it, and then the creditor of the person who paid it in can only have execution against so much of that money as his judgment-debtor would be entitled to take out of Court. Money paid into Court by a plaintiff in pre-emption to be paid over in a certain event to the defendant in the suit is in custody of the Court until the result of the litigation is known. We dismiss this appeal with costs.