The right of pre-emption is to stand in the shoes of the vendee, and the vendee cannot be compelled to make good any defect that may have existed in the vendor's right to sell.

BAPNA, J.

( 1 ) THIS is a revision by Moti Lal against an order of the learned Civil Judge, Tonk, dated 10th June, 1955, in proceedings instituted on an application purporting to have been made under Section 144 read with Section 151 of the Code of Civil procedure, and arises in the following circumstances : moti Lal instituted a suit against Ram Pal and Phool Chand on 2nd of april, 1949, in the Court of Munsif, Tonk, for pre-emption of certain house property sold by Iliyas Khan, Mohammad Saddiq Khan, Mst. Ali begum, Mst. Chhoti, and Mst. Firdos Begum on 2nd of September, 1948. The suit was decreed by the learned Munsif on 14th November, 1951, and a decree was passed that if the plaintiff deposited Rs. 2000/- for being paid to the vendees within one month, the defendants would deliver possession of the property to the plaintiff, whose title to the property would be deemed to have accrued from the date of such deposit; but if no such payment was made within the aforesaid time, the suit would stand dismissed. The money was deposited in Court on 14th of December, and thereby the decree in favour of the plaintiff came into effect. The plaintiff, however, made an application on 2nd January, 1952, that the money deposited by him may not be paid to the defendants, as a certain notice had been affixed on the property by the custodian of the Evacuee Property, and the proceedings in respect thereof were pending in that office. The defendants on the other hand by their application of 8th February, 1952, wanted that the money deposited by the plaintiff should be paid to them. The plaintiff by another detailed application dated 28th April, 1952, said that the money should not be paid to the defendants till the decision of the proceedings pending in the Court of the Custodian. The Court, however, by order dated 16th of July, 1952, held that the right in the property became transferred to the plaintiff on the date of making the payment in the court; and the money deposited by the plaintiff had become the property of the defendants vendees, who were entitled to receive the-same from the Court. It accordingly directed that the money deposited into the Court be paid to the defendants. This was done on the next day. The plaintiff made an application on 13th November, 1952, for execution of his decree, and prayed for possession of the property or in the alternative for realisation of Rs. 2000/-, which the vendees had taken away. It was discovered during the course of the proceedings that the custodian had taken possession of the property as evacuee property, and the Court said that it had no jurisdiction to compel the Custodian to deliver the possession. The application was rejected. On 11th March, 1955, Motilal filed an application purporting to have been made under section 144 read with Section 151, C. P. C. , and urged-1. that the decree, which had been passed in the case had been brought about by fraud of the vendees, as they did not intimate to the Court that the property in dispute was evacuee property. 2. that the decree for pre-emption was passed in enforcement of the right of the pre-emptor as owner of the adjourning property, but such right was in violation of the fundamental rights guaranteed by the Constitution of India, and 3. that the Court had no jurisdiction to grant the decree. It was contended that for the aforesaid reasons the decree was a nullity, and, therefore, the money deposited by Motilal and taken away by Rampal and phoolchand should be realised from the latter, and should be paid back to Motilal. The Court rejected this application, and the plaintiff has come in revision.

( 2 ) IN this petition the same objections were pressed, and it was further contended that if the Court was unable to deliver possession to the plaintiff pre-emptor, the latter was entitled to receive back the money which he had deposited in Court.

( 3 ) ONE basic principle of pre-emption is that the pre-emptor takes what the vendee was read