JUDGMENT

Harrison, J. - The only points in this case are whether a vandee whose sale was pre-empted was entitled by a clause in his covenant to recover from his vendor the loss which he suffered, and whether apart from this clause on general principles his confession of judgment in the sense that ka admitted the plaintiff's right to pre-empt debars him from obtaining the relief which has been given to him by both the lower Courts. Finally there is a cross objection in which he claims Rs. 25, the sum allowed by the trial Court and disallowed by the District Judge, being the costs incurred by him in execution in endeavouring to obtain an order from the executing Court that his vendor was liable to make good the sum re-payable to the pre-emptor and thereby save the whole of this litigation. The relevant portion of the contract of sale runs as follows:

Yeh bai salii hai aur bila kisi shart ke hai, jaidad mazkur manmuqirr ne Musammain Shams-ud-Din wa Abdur Rahman wa Munawer pisran Salah-ud-Din wa Musammat Allah Jawai bewa Salah-ud-Din qaum Sheikh, sakin Hissar se kharidi hai, agar baian ya un ko koi waris jaidad mazkur ke mutulliq kisi kism ka dawa karen aur us se koi nuqsan kisi kism ka mushtri ko ho to us nugsan wa kharcha muqaddama ka manmuqirr bazat-i khud zimmawar hoga, aur meri jaidad uski zimmewar hogi niz baad tahrir wasiqa haza agar koi sahim wa sharik mera ya aur koi shakhs kisi kism ka dawa jaidad mubaia ki babat karega to us ki zimmewari manmuqirr ki hogi aur aise dawe se jo kuchh harjwa nuqsan mushtri ka hoga uski adaigi ka manmuqirr zummewar hoga, mushtri ko ikhtiar hoga ke woh harjana wa nuqsan meri zat wa jaidad har kism se jis tarah chahen wasul kar le.

2. It has been held that under this clause the vendor is liable to recoup the vandee for his losses. Counsel on appeal relies on Ghulam Jilani v. Imdad Husain (1882) 4 All 357 which, though not expressly dissented from in Wazira v. Shadi Khan (1882) 67 P R 1881, was certainly not followed, It appears to me that whatever may be the view taken of the words used in the contract which forms the subject-matter of Ghulam Jilani v. Imdad Husain (1882) 4 All 357 the words "aur koi shakhs kisi kism ka dawa jadad mubaia ki babat karega" most certainly cover a pre-emption suit. The vendor guaranteed peaceful enjoyment to his vendee and the clause was not confined to any patent defect of title existing before sale, but covered the inherent and potential defect which would become tangible and real as soon as a pre-emotion suit was lodged by a competent person. I find therefore agreeing with the learned District Judge that under this clause the defendant is liable to make good the losses by the plaintiff. The second point appears at first sight to be very much stronger than it really is. In the pre-emption suit the defendant-vendee admitted the title of the pre-emptor and at first the vendor denied it, and an issue was framed as to whether the subject-matter of the suit really consisted of shops regarding which there was no right of pre-emption. On going through the record of the preemption case I find that on 5th of October 1917 the vendor himself stated on solemn affirmation that ha did not contest the pre-emptor's right to bring the suit. Counsel urges that he may have been induced to do so because of the craven conduct of the vendee; but it is impossible to get over the fact that he himself confessed judgment on this point and cannot now plead that the whole of the losses of the suit are due to the carelessness or dishonesty of his vendee. On this point also, therefore, there is no reason why the plaintiff should not succeed.

3. As to the cross-objection the District Judge was apparently under the impression that this sum of Rs. 25 formed part of the costs incurred in the pre-emption case proper. They were incurred, and I think bona fide, in execution proceedings, and this being so I think the plaintiff is entitled to recover.

4. I dismiss the appeal with costs, and I accept' the