JUDGMENT

Muhammad Rafiq and Piggott, JJ. - The three execution appeals, Nos. 329, 330 and 271 of 1922, arise out of two pre-emption decrees passed by the lower appellate court on the 9th of April, 1921. It appears that one Damri Singh executed a deed of sale on the 20th of May, 1919, in respect of a portion of his landed property, in favour of Jhinak Singh and Udit Narain Singh. On the 18th of May, 1920, and the 21st of June, 1920, respectively, two suits were instituted by two Bets of plaintiffs, the co-sharers of Damri Singh the vendor, for the recovery of possession of the property conveyed by the sale-deed of the 20th of May, 1919, on the ground of preemption. Ram Baran was the plaintiff in one suit and Ambika Prasad, Ram Charittar Singh and Hubedar Singh were the plaintiffs in the second suit. The vendees resisted the claim by the denial of the custom of pre-emption set up in the two plaints The learned Munsif, in whose court the two suits were filed, came to the conclusion, on the evidence in the case, that no custom of pre-emption prevailed in the village where the property in question was situate. He accordingly dismissed the two claims.

2. Two appeals from the two decrees of the Munsif were preferred to the district court. Ram Baran preferred an appeal from tire decree dismissing his suit, and the other appeal was preferred by Ambika Prasad alone. He, however, stated that he was appealing on his own behalf and on behalf of his two co-plaintiffs, namely Ram Charittar Singh and Hubedar Singh, though he did not make them respondents in the appeal. The two appeals were heard and disposed of together by the learned District Judge, on the 9th of April, 1921. He disagreed with the court of first instance and found that the custom of preemption obtained in the village and decreed the two appeals. In the case of Ram Baran the decree was that he should pay one-fourth of the sale consideration within the specified period and recover possession of one-fourth of the property in suit. In the appeal, of Ambika Prasad the decree was that he (Ambika) and his co-plaintiffs, Hubedar Singh and Ram Charittar Singh, should deposit three-fourths of the sale consideration within the period specified in the decree and recover three-fourths of the disputed property.

3. The decree-holders in the two appeals deposited their respective amounts of consideration money within the prescribed period and were duly put in possession of the disputed property in proportion to the shares decreed to them.

4. Subsequently two applications were made by the judgment-debtors, i.e., the vendees, to the court of the Munsif who had executed the two decrees, asking for restitution of the property on the allegation that the decrees that had been executed were incapable of execution for the reason that Hubedar Singh had died prior to the passing of the decrees by the learned District Judge on the 9th of April, 1921, in the appeals of Ram Baran and Ambika Prasad. The learned Munsif allowed the request of the judgment-debtors to this extent that he restored one-fourth of the property to them, i.e., the share of Hubedar Singh. The judgment-debtors preferred two appeals on the execution side to the court of the learned District Judge. A third appeal was preferred by Ambika Prasad to the same court objecting to the restoration of the share of Hubedar Singh to the vendees, the judgment-debtors. The learned District Judge disposed of the three appeals together by one order. He was of opinion that Hubedar having died prior to the passing of the decree on the 9th of April, 1921, the two decrees in the appeals of Ambika and of Ram Baran were a nullity and, therefore, could not be executed. He allowed the appeals of the judgment-debtors and dismissed the appeal of Ambika Prasad.

5. We have, therefore, three appeals before us, two by Ambika Prasad and one by Ram Baran. We take up the two appeals of Ambika Prasad first.

6. It is contended on behalf of Ambika Prasad that the omission to