JUDGMENT

Pearson, J. - But the material point for determination in my opinion is whether a valid cause and right of action accrued to Jagraj Singh on the 13thFebruary 1875, and that question I am free and competent to consider u/s 542 of the Procedure Code. I observe that the sale of umeda Singh's share to the defendant did not take place on that date. his share had been sold conditionally, it is true, so long before as the 3rd of May 1867. What happened on the 13th February 1875, was merely that the sale became absolute. No fresh transfer was made, but the character of the transferee's possession was modified by the operation of the terms on which the original transfer had been made. The transaction commenced on the earlier and came to an end on the latter date. no new transaction was effected on the latter. The clause in the wajib-ul-arz, but only failed to redeem it from mortgage4. he was not when the year of grace was expiring in a position to offer the property to Jagraj Singh. He could not have empowered Jagraj Singh to redeem it as his substitute. At the time of conditional sale it is not shown that any right of pre-emption was possessed by the proprietors of mauza Tikarbhan. I conclude, there fore, that the present suit is unmaintainable, and I would decree the appeal without costs, reversing the lower Appellate Court's decree and restoring that of the Court of First Instance.

Spankie, J.

2. I regret that I cannot agree with Mr. Justice Pearson in the latter part of his judgment. The objection taken by my honourable colleague is not one taken by the appellant in the Court below, nor indeed in this Court. I admit that u/s 542 the Court is not confined to the rounds set forth in the memorandum of appeal. But the chapter in which the section is found refers to appeals from original decrees. I am aware that Section 587 of Act X of 1877 provides that the provisions of Chapter XII should apply as far as may be to appeals from appellate decrees. But the words " as far as may be" are of importance, and they should be considered with reference to Section 584, clauses a, b and c. On no other grounds than those allowed by the section does a second appeal lie. the objection on which my honourable colleague elies was not, as we have seen, raised below, and I doubt whether we can now set aside the Judge's decision solely upon the objection taken by my colleague. I certainly think it was for the appellant to urge that there was no valid cause and right of action on the grounds taken by my honourable colleague, and it was not for the Court to make the objection in second appeal. But, however this may be, I go further, and would say that there was no sale without power of redemption until the foreclosure had been completed, and defendant had obtained a decree for possession as owner. Until these conditions had been fulfiled the transaction was one of mortgage and a power of redemption remained. After these conditions had been fulfilled and rendered valid by decree of Court, the transaction once partaking of a double character became a single one, and an absolute sale and possession was given under the sale-deed. On this the plaintiff's cause of action arose, and under the terms of the administration-paper, he was at liberty to bring or continue this suit.

3. I would remand the appeal to enable the Judge to determine the amount of the sale-consideration on payment of which the plaintiffs would be entitled to obtain the property in suit, and to fix a period within which that amount should be paid. When the lower Appellate Court returns the finding on this point, one week may be allowed for objection, and on its expiration I would dispose of he appeal.

4. The case, in consequence of the difference of opinion between Pearson J., and Spankie, J., was referred, u/s 575 ^*, Act X of1877, to Straight, J., who delivered the following Judgment:

Straight, J.

5. This appeal has been referred to me by order of the learned chief Justice u/s 575 of the Civil