JUDGMENT

Hamilton, J - The question which has been referred to the Full Bench for decision is as follows:

Where a pre-emption decree directs payment of the purchase money within a certain time and the pre-emptor makes default in making such payment, is the right of pre-emption lost when the pre-emptor has failed to deposit the amount and has filed an appeal contesting the amount directed to be deposited, and is the appeal incompetent on that account ?

2. The learned Counsel for the respondents relies on Sections 14 and 15, Oudh Laws Act, which run as follows:

Section 14:

If the Court find for the plaintiff the decree shall specify a day on or before which the purchase money or the amount to be paid to the mortgagee shall be paid.

Section 15:

If such purchase money or amount is not paid into Court before it rises on that day the decree-shall become void, and the plaintiff shall, so far only as relates to such sale or mortgage, lose his right of pre-emption over the property to which the decree relates.

3. The learned Counsel argues that "decree" in both these Sections refers to the decree of the trial Court, and no distinction is drawn between cases where an appeal has been filed and other cases, because no mention of an appeal has been made at all. He therefore, urges that if no payment has been made on the date fixed, no appeal can be maintained from that day, and from that day the plaintiff has lost his right of pre-emption over the property to which the decree relates There are three possible situations at the time when money should have been paid in but has not been paid in: (1) no appeal has been filed, (2) appeal has been filed and decided, and (3) appeal has been filed but not decided.

4. There are three decisions which apply to the first case. The first is an Allahabad case decided in 1889 and reported in Kodai Singh v. Jaisri Singh (1889) 13 All 189 (FB). It was there held that there was a decree from which an appeal could be entertained, and the plaintiff was entitled to get a determination of the question of price, which, when decided, might properly guide the Judge's conclusions upon the further point as to whether the time allowed by the first Court was reasonable. It should be remembered, as it is, in my opinion, most important that Section 15 of the Oudh Laws Act, does not apply to Agra where, if payment is not made within a specified period, the suit stands dismissed, because the decree states this. Independently of the decree, there is no provision that if the money is not paid within the specified period, the plaintiff loses his right to preemption. In Oudh, however, the decree should more properly be in accordance with Section 14, Oudh Laws Act; and not in accordance with Order 20, Rule 14, Civil P.C., and should, therefore, contain no provision that the suit in default of payment shall be dismissed. Even however if the decree has been drawn up in accordance with Order 20, Rule 14, Civil P.C., in addition to this provision that the suit shall stand dismissed, there is the provision of Section 15, Oudh Laws Act, that the plaintiff has lost his right to pre-emption.

5. The next case is reported in Imam Din Khan v. Abdul Sattar Khan AIR 1924 Oudh 102 where the difference between a decree under Order 20, Rule 14, Civil P.C., and a decree in accordance with Section 14, Oudh Laws Act, has been pointed out. It has also been pointed out that on failure to pay the money there is no decree in existence, and the plaintiff has no existing right of preemption, so he cannot appeal. This decision was dissented from in Bankey Behari Lal v. Abdul Rahman (1932) 19 AIR Oudh 63 a Bench decision. That was not an appeal against a decree in a pre-emption suit but an application for revision against an order granting an application for review of judgment. There was a compromise to the effect that by 12th November 1929, Rs. 77,000 would be paid, and the decree was passed for such payment with a provision that in case of default the