A fresh suit cannot be maintained to enforce a decree for possession in a pre-emption suit if the decree is not executed within the statutory period of limitation.

Shamsher Bahadur, J.

1. This appeal raises a novel and interesting point in the law of pre-emption a question which has to be decided on first principles as there does not seem to be any direct authority on the point.

2. The property In dispute consists of agricultural land measuring 11 Bighas and 5 Biswas situated in village Jhurar of Muktsar Tehsil This parcel of land was sold by Mehar Singh to Mal Singh, the first appellant, and his brother Pala Singh, who is dead and is now represented by appellants Nos. 2 to 7, by a registered sale deed of 22nd of June, 1957, for Rs. 10,000/-. Two pre-emption suits were filed in respect of this sale, one by Mohinder Singh, respondent in this appeal, and the other by Punjab Singh. There was a compromise between the vendees and Mohinder Singh, who, according to them, was a mere figurehead and was put up by them as a pre-emptor to retain the land in their hands. and to keep out Punjab Singh from it. In the suit of Mohinder Singh, which was compromised on 8th of October, 1959, a decree was passed in his favour. Strangely enough, and this supports to some extent the contention of the vendees, Mohinder Singh never cared to take possession of the land for many years and the expla- nation given by him in the present suit filed for possession of this land by him against the vendees many years later was that he had been involved in a number of cases which had kept him in jail for intermittent periods. It is not disputed that the sum of Rs. 10,000/-, for which the suit was decreed in favour of Mohinder Singh had been paid by him but no effort was made to get possession of the land. An execution application was filed on the 23rd March, 1966, but it was dismissed on 10th of June, 1966 (Exhibit D-l) as infructuous (nakam). The present suit was filed by Mohinder Singh on 15th of October, 1966 and it ia founded on the old pre-emption decree passed in his favour as a compromise on 8th October, 1959. The principal question which was raised in the suit related to its maintainability after the statutory period of limitation had expired and the decision of the trial Court was adverse to the plaintiffs claim. The lower appellate Court, however, took a different view of the matter and decreed the suit of the plaintiff on 30th December, 1968. It is from the appellate decree of the District Judge. Ferozepore, that the vendees have come in appeal to this Court.

3. On the pleadings of the parties, the following issues were framed:-

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1. Whether the decree dated 8th October, 1959, is collusive, without jurisdiction and is not binding upon the defendant?

2. Whether the present suit is maintainable in its present form?

3. Whether the suit is not maintainable in its present form as alleged in preliminary Para No. 3 of the written statement?

4. Whether the suit is within time?

5. Whether the plaintiff is entitled to get the possession of the land on the basis of decree dated 8th October, 1959?

6. Whether the suit is barred by res judicata?

7. Whether the plaintiff is estopped from filing the suit for his acts and conduct as alleged in preliminary Para No. 5 of the written statement?

8. Relief.

I have purposely mentioned the various questions in controversy on which the parties joined issue. The ground on which the judgment of the trial Court was reversed, to which I would advert shortly, does not form a part of the subject-matter of the issues or pleadings.

4. On the question of collusion, the finding of the trial Judge is in favour of Mohinder Singh respondent. Though there was evidence to show that the vendees themselves had provided Mohinder Singh with the zar panjam and also the balance of Rs. 8000/-, the trial Court has not accepted this testimony and the matter being decided in favour of the plaintiff-respondent is no longer at large. On the second issue also the decision is in favour of the plaintiff-respondent. The decisions of the courts below on the third and fourth issues are of crucial importance. Th