JUDGMENT

Mukerji, J. - This appeal is connected with Execution Second Appeal No. 709 of 1930. The appeals have arisen in the following circumstances: Umrao Singh, the appellant before us in both cases, filed a suit for preemption against the respondent Kehri, He set forth in the plaint that the true consideration of the sale-deed was Rs. 1,050 and that the ostensible sale consideration of Rs. 1,450 was wrong. The suit was resisted on various grounds, but it ultimately succeeded, and on 2nd September 1929 the learned Munsif decreed the claim for possession on condition of payment of Rs. 1,050 to defendants 5, namaly, Kehri, within two months of the date of the decree. The defendant was dissatisfied with the decree and went in appeal. The plaintiff on 26th October 1929 deposited in Court a sum of Rs. 145-7-0 and on 4th November 1929 asked for delivery of possession. The reason for depositing this small sum was this. The sale consideration is made up of three items, namely, Rs. 400 said to have been due to the vendee on account of a promissory note, Rs. 315 paid in cash before the Sub-Registrar and Rs. 735 left with the vendee for payment to certain creditors, namely, the plaintiff and his brother. The Court of first instance held that the money said to have been due to Kehri on foot of the promissory note was fictitious and deducting that amount decreed the plaintiff's suit on condition of payment of Rs. 1,050. The plaintiff found that he was entitled under the decree to a sum of Rs. 169-9-0 as costs. He deducted this amount and also the amount of Rs. 735 which had been left with the vendee for payment to the vendor's creditors, but which the vendee had not yet paid.

2. To the application for execution the vendee Kehri took an exception, and the plaintiff's application for delivery of possession was rejected by the first Court on 9th December 1929. On the application of the defendant the decree was amended and the amount of costs payable to the plaintiff was reduced from Rs. 169-9-0 to Rs. 149-9-0, that is to say by Rs. 20. This sum. of Rs. 20 has been deposited so far as we have been able to discover from the record. Against the order dismissing the plaintiff's application for delivery of possession the plaintiff went in appeal and his appeal was dismissed on 10th February 1930. The appeal of Kehri against the decree of the Munsif allowing the plaintiff's claim for pre-emption came up - for hearing before the lower appellate Court, and it was argued on be half of the appellant that there "was no longer any subsisting decree in favour of the respondent, the plaintiff, and there fore there was no appeal to argue on behalf of the appellant. The learned Subordinate Judge, who heard the appeal, acceded to this argument, and accordingly dismissed the appeal holding that the appellant was the owner of the property and not respondent. Against this decree Appeal No. 741 of 1930 has been laid before us. Against the execution matter an appeal has been filed by the plaintiff and it is Execution Second Appeal No. 709 of 1930. Both the cases have been heard together. The appellant's argument firstly was that the mere fact an appeal was filed to the I appellate Court by the defendant ex-tended the period granted by the Court of first instance on 2nd September 1919 for payment of pre-emption money. We find it extremely difficult to accept this proposition of law. It is true that a decree when under appeal is not final; but this does not mean that a pre-emptor is entitled to say that he can pay the money after the appellate Court has passed an order in the appeal. On the other hand, the case of Jagarnath Pande v. Jokhu Tewari (1896) 18 All 223, is 'a direct authority against the appellant's contention; it was held there that the defendant's appeal did not operate as an extension of time in favour of the plaintiff. The next argument of the appellant was that under Order 41, Rule 33, Civil P.C., it was open to the lower appellate Court to extend th