JUDGMENT

1. This is an appeal under Section 12(2), Oudh Courts Act, against the decision of a learned Single Judge of this Court. It arises in the following way: Karta Krishna, the present appellant, obtained a preliminary foreclosure decree on 27th February 1931, for Rs. 786-12-0 plus Rs. 46-12-0 costs of the suit, viz., a total sum of Rs. 833-8-0, against one Mt. Bhagwan Dei, who is no longer a party to these proceedings. On 21st October 1931, he applied for making the decree absolute. The decree was made absolute on 23rd January 1932. The costs of the proceedings for making the decree absolute amounting to Rs. 8-11-0 were allowed to the mortgagee. On 6th February 1936, Mt Indrani, the present respondent, brought a suit against Karta Krishna and Mt. Bhagwan Dei, who was discharged later on, for possession by pre-emption of the share in suit upon payment of Rs. 833-8-0. Notice to Karta Krishna had not been served and on 3rd March 1936, the Court ordered issue of a fresh summons to him for issues on 8th April 1936. The order further directed Karta Krishna to file a written statement on 27th March 1936. No written statement was filed on 27th March 1936, as directed. The counsel for Karta Krishna admitted the plaintiff's title to pre-empt the property in dispute while the counsel for the plaintiff stated that no amount in the foreclosure decree was fictitious. On the same date the Court, in view of the pleadings of parties, passed the following order:

In view of the above, I decree the suit with costs. The plaintiff to pay the consideration under the foreclosure decree within one month from to-day after deducting the costs of the suit. If the plaintiff fails to pay the amount within the specified period, her suit shall stand dismissed with the costs of the defendant.

2. This judgment was pronounced in open Court in the presence of counsel for parties. It may be mentioned that the costs of the pre-emption suit were Rs. 22-2-0. Mt. Indrani according to the order was, therefore, entitled to pre-emption on payment of Rs. 811-6-0 only. On 16th April 1936, she made an application to the Court stating that she had obtained the pre-emption decree subject to the payment of Rs. 811-6-0 and that she might be allowed to deposit this amount. It was hardly necessary for her to make such an application asking for permission to deposit the amount as she was entitled to tender the amount without any such permission. The office reported on this application that the amount payable under the preliminary decree was Rs. 833-8-0, but as the application for final decree for foreclosure was allowed with (?) costs to the extent of Rs. 8-11-0. Mt. Indrani was liable to pay Rs. 833-8-0 plus Rs. 8-11-0, namely the total of Rs. 842-3-0 under the foreclosure decree, minus the costs of the suit, Rs. 22-2-0; thus she was liable to deposit Rs. 820-1-0. The Court, however, did not accept the office report and ordered Mt. Indrani to deposit the amount payable under the preliminary decree minus the costs incurred in the pre emption suit; in other words, the effect of the order was that Mt. Indrani was not liable to deposit the sum of Rs. 8-11-0, the costs of the preparation of the final decree, (vide order dated 20th April 1936).

3. On 29th April 1936, Karta Krishna filed an application that the deposit made by Mt. Indrani was short by a sum of Rs. 8-11-0 and consequently her suit should be dismissed and the proceedings for delivery of possession should be postponed. The learned Munsif dismissed the application holding that the amount of costs incurred by the mortgagee under the final decree for foreclosure did not form part of the consideration under the foreclosure decree, which was Rs. 833-8-0 only, and as this amount had been deposited minus the costs of the pre-emption suit, Mt. Indrani had complied with the terms of the pre-emption decree. Upon this finding, Karta Krishna's application was dismissed. The lower appellate Court disagreed with this view and held