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follows : " Thirdly, if I, tbp vendor, or the heirs of me, the vendor, All Jan
alias Ali Abmad, tbould pay ( ff the entire consideration money mentioned above
on the Puranmafhi [1S6] of Jftb Sudi 1299 fasli to the said purchaser, she
should without any objection or hesitation receive tbe money, and returning
the property sold, described above iu tbe document to me the vender, revoke the

Held that this deed was a bal-bil-wota or mortgage by conitional eale and
that as the conditional eale had not bf-rome absolute at the time when the right
of pre emption accrued, tbe conditional vendor or mortgagor was still a share-
holder in the village, and therefore had still a subsisting right of pre-emption.
Bhagwan Sahai v. Bliagwan Din '!) distinguished.

[Appr., 20 A. 19 ; R., 19 A. 434 ; 33 A. 585 i592) = 8 A.L.J. 389=5 Ind. Gas. 1013; 7
A.L.J. 484 (493) = 6 Ind, Gas. IPS (187 ; 11 lud. Gas. 124 (125) ; D., 6 C.W.N.
192 ; 72 P.R. 1901 = 114 P.L.R. )901.]

THE facts of this case sufficiently appear from the judgment of the

Mr. Abdul Mayid for the appellant.
Munshi Kashi Prasad for the respondent.


EDGE, C.J. and TYRRELL, J. The plaintiff, who is the appellant
here, brought his suit for pre-emption in the Oourt of the Munsif of
Korantadih. The suit is based on tbe village wajib-ul-arz and a sale-
deed, dated tbe 20th of October 18^7 Tne vendor and vendee were made
defendants to the suit. The defendant., who was the vendee under the
deed of the 20bh of October 1887, pleaded several matters by way of
defence. Amongst other defences he alleged in effect that the plaintiff
had, prior to the 20th of October 1887, ceased to be a shareholder in
the village. In support of that defence the defendant vendee relied upon
a deed wbiob had been executed by the plaintiff on tbe 30th of September
1887, and which was registered on the ]9&h of October 1887, and con-
tended that that deed was a deed of absolute sale by which all tbe interest
of the plaintiff in the village had been assigned by him to a third party.
On the other hand, the plaintiff contended that the deed of tbe 30th of
September 1887 was a conditional sale-deed, and that the transaction
evidenced by that deed was a mortgage by conditional sale within the
meaning of s. 58 of the Transfer of Property Act, 1882 (Act No. IV of
1882); and that as mortgagor be was and continued to be a shareholder
in the village within the meaning of the wujib-ul arz.

The Munsif guve the plaintiff a decree. Tbe defendant, the vendee,
appealed. The lower appellate Court holding that, under the deed of the
30th of September 1887, the pin n tiff had abso [I97]lut;ely assigned his
share in the village, made a oVeree selling aside the decree of the first
Court and dismissing the suit. From t-hafi decree this second appeal has
been brought. The only issue deiermined by tbe lower appellate Court
was that as to tbe effect ot the deed of the 30bh of September 1887.

The material condition in the dee! of ft he 30th of September 1887, as
tranplated by the bead of the Translating Dapartmenr. of this Court is as
follows : Thirdly, if I, the vendor, or the heirs of me the vendor, Ali Jan
ahas Ali Ahmad, should pay off thu entire consideration money mentioned
above on the Puranmasbi of Jeth Sudi 1299 fasli to tbe said purchaser,
she should without any objection or hesitation receive the money, and,
returning tbe property sold, described above in the document, to me

(1) 17 I, A. 98=12 A. 387.


the vendor, revoke the sale." The words have been translated as "revoke 1892
the sale" are ikala bai." MARCH 10.

Wilson's Glossary of Judicial and Revenue Terms(London, W.H.Allen
& Co., 1855) gives the meaning of the word ikala thus: 'Ikala. The APPEL-
cancelling or dissolution of a sale on condition of furnishing an equivalent LATE
for the original price of the article ; breaking a contract or engagement." GlVlL.
In the second edition of Hamilton's Hidaya by Grady "ikala" is thus de-
fined "Ikala literally signefies to cancel. In the language of the law it ** * 195
means the cancelling or dissolution of a sale." The lower appellate Court 12 A.W.N.
translated "ikala bai" as "re-sell." Mr. Abdul Majid for the appellant relied (1892) 42,
upon s. 58 of the Transfer of Property Act, 1882, and the case of Thumbu-
samy Moodelly v. Mahomed Hussain Rawthen (1) and Sahib-un-nissa
Bibi v. Hafiza Bibi (2).

Mr. Kashi Prasad for the respondent, cited the cases of Mussammat
Chando v. Hakeem Alim-ood-deen (3) ; Raj jo v. Lalman (4) ; Bhajan v.
Mushtak Ahmad (5) ; and Bhagwan Sahai v. Bhagwan Din (6)

[198] The decision in Musammat Chand v. Hakeem Alim-ood-deen (3)
does not appear to us to have any bearing on the question before us, as
the rights of the parties here must be determined by the contract or the
village custom contained intthe ivajib-ul-arz and by the construction of
the deed of the 30th of September 1887, having regard to the Transfer
of Property Act, 1882.

The case of Raj jo v. Lalman (4) does not apply. In that case the
person who claimed to enforce a right of pre-emption under a wajib-ul-arz
had in anticipation mortgaged to a stranger, i.e., to a person who was
not a shareholder in the village, the very share which he sought to

The case of Bhajan v. Mushtak Ahmad (5) has no possible bearing
on this case. The transaction there evidenced by the instrument of July
1870 was an absolute sale. Whether the vendor in that case could
have enforced the subsequent agreement of November 1870, we need
not consider.

Mr. Kashi Prasad strongly contended that the decision of their Lord-
ships of the Privy Council in Bhagiuan Sahai v. Bhagwan Din (6) governed
this case, and that applying the principle of that decision we were bound
to construe the deed of the 30th of September 1887, as a deed of absolute
sale and not as a mortgage by conditional sale. If the facts in the two
cases were the same, and if the Transfer of Property Act, 1882, was equally
applicable to the two cases, we would without doubt be bound to take the
law to be applied in this case from their Lordships of the Privy Council
and to apply it without hesitation. It is doubtful how far, if at all, the
attention of fcheir Lordships of the Privy Council was drawn in the case of
Bhagivan Sahai v. Bhagwan Din (6)to the origin and object of the bai-bil-
wafa form of mortgage which was introduced to enable Muhammadans,
contrary to the precept of the Muhammadan law against lending money at
interest, to lend money at interest and to obtain security for the repayment
of the principal [199] and interest. It may be doubted if their Lordships
of the Privy Council were informed that it was possible that khebai-bil-wafa
mortgage transaction was, at leasts by the people of these Provinces, before
their Lordships' decision understood as being capable of being effected in

(1)3 I. A. 941 = 1 M, 1. (2) 9 A. 213. (3) N.W.B.H.C.R. (1874) 28.

(4) 5 A. 180. (5)5. A. 324. (6) 17 I. A, 98 = 12 A. 387-

A VII-63

1* All, 200



1892 different ways, as, for instance, by a deed which purported to assign the
MARCH 10, property absolutely, but which contained a stipulation for a right of re-

purchase, or by two contemporaneous deeds one of which purported to

APPEL- effect an absolute and unconditional sale, and the other of which was an
LATE agreement that the apparent vendor should have a right of re-purchase,
CIVIL an( ^ fckat, as a ru ^ 01 khe common lump price mentioned in each of such

' deeds did not represent the actual price paid by the apparent vendee, but

HA. 193= represented that price plus interest calculated, frequently at a usurious

12 A.W.N. rate, for the period during which it was agreed that the right of re-

(1892) 12, purchase should subsist, an arrangement which could hardly be consistent

with such a transaction being one of an absolute sale and not one in the

nature of a mortgage.

In such a case it would be hardly consistent with justice, equity or
good conscience to treat the transaction as other than what it in fact was,
or was admitted to have been, or to construe the documents as if they
had been drafted by a conveyancer of Lincoln's Inn in accordance with
English decisions which might be wholly unknown to the people of this
country and wholly inapplicable to the form and object of the contract as
understood by the parties in India, or to deprive either party of the
remedy recognized by the Indian Limitation Act.

In this part of India for many centuries conveyancing followedjhe
Muhammadan forms.

It may also be doubted if the attention of their Lordships of the
Privy Council was drawn to the passage in the judgment of this Court in
which it was stated, as was the fact :

" The plaintiffs contended that the sale was a conditional sale or a
mortgage by conditional sale. The correctness of this contention was
admitted on behalf of the appellant."

[200] The appellant was one of the defendants who had appealed from
the decree of the Subordinate Judge of Cawnpore who had held that the
transaction was one of mortgage. The appellant in that case was re-
presented by two of the most experienced lawyers then practising in this
Court, who had been for years familiar with the different forms in which
a bai-bil-wafa mortgage transaction was effected in these provinces.
Unfortunately this Court did not think it necessary to state in its judgment
its reasons for agreeing with what was conceded on behalf of the parties to
the appeal, namely, that the transaction was one which was intended by
the parties to it to be a transaction of mortgage. Whether any of thosa
considerations would have influenced their Lordships of the Privy Council
to take a different view of the transaction, we are unable to say. As in duty
bound, we accept the decision as it stands as an authoritative exposition of
the law to be administered in this country in a similar case. There is an appa-
rent distinction between that case and this. In that case the contract which
was alleged by one side and admitted on behalf of the other side in this Court
to be a contract of mortgage was evidenced, if at all by two contemporaneous
documents, whilst in this case the contract is contained in one document,
and is obviously a mortgage within the meaning of clause (c) or of clause (e)
of s. 58 of the Transfer of Property Act, 1882. It is not necessary for
the purposes of this case to decide which of those clauses of the section
applies to it. Taking that view of the transaction as evidenced by the deed
of the 30th of September 1887, we hold that the plaintiff had not by
rason of the mortgage of the 30th September 1887, ceased to be a share-
holder in the village, and that he was not by reason of his having mort-
gaged his share in the village disentitled to maintain this suit for


pre-emption. As the other issues in the case have not been tried by th,e 1892

lower appellate Court, we remand the case under s. 566 of the Code of MARCH 10.

Civil Procedure, for the trial and determination of the other issues raised

by the memorandum of appeal which was filed in the lower appellate APPEL-

Court. Ten days will be allowed for filing objections after the return LATE

has been received. Civiii

Cause remanded. '

14 1. 195=

13 A. 201 (F.B.) =12 A.W.N. (1892) 74. 12 * W -N.

(1892) 42

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight,
Mr. Justice Mahmood, and Mr. Justice Knox.

AND OTHERS (Opposite party).* [10th March, 1892.]

Execution of decree Default of purchaser at sale in execution Deficiency in price
arising on re-sale Order against defaulter to make good surh deficiency Appeal
Civil Procedure Code, ss. 2, 293, 540, 588.

No appeal liea from an order under s. 293 of the Code of Civil Procedure direct-
ing a defaulting purchaser at a sale in execution of a decree to make good the
loss happening on a re-sale occasioned by his default, Bam Dial v. Ram Das (1)
and Baijnath Sahzi v. Moheep Narain Singh (2) dissented from, Soudagar
Mai v. Abdul Rahman Khan (3), Bahim Buksh v. Dhuri (4) followed.

80 held by EDGE, C.J., MAHMOOD and KNOX, JJ., STRAIGHT, J., dissent-

[Dies., 25 C. 99; 18 M. 439 ; P,, 12 Ind. Ca3. 360 (364)-7 N.L.R. 134 (135).J
[N.B. See in this connection 19 A. 22, an offshoot of 14 A. 201.]

THIS was an appeal under s. 10 of the Letters Patent from a judg-
ment of Tyrrell, J. The appellants, Deoki Nandan Eai and Sheo Balak
Eai, purchased certain immoveable property at an auction-sale in execu-
tion of a decree on the 20th May 1888. The price at which the property
Was sold was Es. 800. As the purchasers did not pay the purchase-
money within the time required by section 307 of the Civil Procedure
Code, the sale was set aside, and the property was re-sold under section
308 on the 22nd August, 1888, when it was purchased by one Baideo Lai
on behalf of Musammat Sona Kuar for the sum of Es, 245. Thereupon
the decree-holder applied in the Court of the Munsif executing the decree
to recover from the defaulting first purchasers the difference be-
tween the prices relaized at the two sales, and these purchasers on
their part filed objections. Those objections were, however, overruled,
and the Munsif, acting under section 293 of the Code of Civil Pro-
cedure, ordered the purchasers to make good the deficiency. The
objectors appealed to the Subordinate Judge of Ghazipur, who allowed
the appeal, holding that as the officer conducting the sale had not
certified under the provisions of section 293 the circumstances under
which the re-sale took place, the Munsif was not competent [202] to
make the order under appeal. From this decision the decree-holders
appealed to the High Court.

Munshi Jwala Prasad, for the appellants.

Mr. J. E. Howard, for the respondents.

* Letters Patent Appeal No. 20 of 1890.
(1) 1 A, 181, (2) 16 C. 535. (3) 10 A.W.N, (1890) 85. (4) 12 A, 397,


1* All. 203






li 1. 201


12 A.W.N,

(1892) 74.

TYRRELL, J. This is a second appeal from the appellate order made
^y ' ne Subordinate Judge of Ghazipur reversing the decision of the Munsif
executing the decree, who made an order under section 293 of the Civil
Procedure Code directing the defaulting auction-purchaser to make good
^e l sa w hih his default brought about. The learned vakil who appears
for the decree-holders appellants, contends that the order of the Munsif
was unappealable. It seems to me that the contention is sound. An
order under section 293 is not appealable as an order under section 588
of the Civil Procedure Oode. To be appealable, then, it must be regarded
as an order under section 244, It is not such an order, for Deoki
Nandan Eai, who made an abortive final bid at the first sale,
cannot be said to be in any sense a party to the execution of the
decree. A doubt as to appellate jurisdiction in regard to orders
under section 293 was suggested in the Calcutta Court in Bamdhani
Sahai v. Rajrani Kooer (l), and I am informed that the first Bench of this
Court has recently ruled that an order under section 293 is not appeal-
able. Unfortunately I cannot find the judgment (2), but I have very
little doubt that the order in question was unappealable. The decretal
order of the Court below must be set aside ; that of the Munsif restored,
the appeal being decreed with all costs.

From this decree an appeal under s. 10 of the Letters Patent was
filed by the defaulting purchasers, which appeal coming on to be heard by
Edge, C. J., and Straight, J., was, by their orders of the 5th January 1892,
directed to be laid before a Bench consisting of the Judges of the Court
other than the Judge from whose decree the appeal was brought.

Mr. T. Conlan for the appellants.

Munshi Jioala Prasad, for the respondents.


[203] MAHMOOD, J. This is a Letters Patent Appeal under s. 10
from the judgment of my brother Tyrrell, in which he held, as his judg-
ment shows, that no appeal lay either to the lower appellate Court
or to him.

A preliminary difficulty occurred in my mind in this case as to
whether or not an appeal lay to this Bench under s. 10 of the Letters
Patent in view of the recent Full Bench case of Muhammad Naimullah
Khan v. Ihsanullah Khan (3). But upon full consideration, and inasmuch
as the ground of appeal contests the judgment of my brother Tyrrell,
whatever view I may entertain as to the validity of the judgment, I am
of opinion that this appeal lies. This view is consistent and indeed in con-
formity with what was ruled by me in an earlier case where I held that
the mere circumstance that an appeal did not lie to the lower appellate
Court does not oust the jurisdiction of a higher Court of appeal to hear an
appeal from a decree passed by such lower appellate Court.

We are therefore seized of this case as an appeal, and as such I
understand that the appeal comes before us and that this Bench has to
deal with it. The case has come up for hearing before the learned Chief
Justice and my brother Straight, and by their order of the 5th January
1892, they referred the whole case to us, namely, che Judges of the Full
Bench. In that order of reference the points which really arise in the

(1) 7 C. 337.

(2) 10 A.W.N. (1890) 85.

(3) 12 A.W.N. (1892) 11.



All. 205

case have been succinctly but clearly stated, and I do not wish to add
anything to what is said there.

What I have to consider is the solitary question which arises before
me sitting here in the Full Bench, and that is this, namely, whether or
not orders under s. 293 of the Code of Civil Procedure are matters which
can be made a subject of appeal to any Court nt all. In considering this
question one thing is important, and that is this, that if any orders made
under s. 293 are orders, you have to search for a right of appeal from those
orders, and in that search the Code leaves no doubt in s. 588 that that
search must be limited to the four corners of that section and nowhere
else. So that if these orders are orders, as distinguished from decrees, then
[204] there is no doubt and the section is clear enough ; I mean s. 588 is
clear enough to show that it contains a prohibition as to appeals from
orders other than those specified in that section. In that section there is
one thing which I wish to point out, and for that I am indebted to the
learned Chief Justice, namely, that whilst in cl. (16) orders under s. 294
are declared appealable, there is a significant silence as to the appealability
of orders under s. 293, and this significance is all the more significant,
because s. 294 is somewhat cognate in its nature to the provisions of s. 293
which immediately precedes it. Holding the rule expressio unius exclusio
alterius, and taking that to be the sound principle of interpretation, I
.regard the absence of s. 293 from the various clauses of s. 588 as signifying
that no orders under that section were to be rendered appealable.

Then comes a greater question upon which my judgment must proceed,
and that is this. The difficulty over s. 293 arises over the last part of
that section, because it says that the deficiency of the price, " shall at the
instance of either the judgment- creditor or the judgment-debtor be recover-
able from the defaulter under the rules contained in this chapter for the
execution of a decree for money."

I have quoted these words on purpose, because I have long held the
view, expressed in numerous cases from the Bench in this Court, that
whilst a clear distinction must be drawn between the rules of substantive
law and the procedure law, so, in considering the rules of procedure
itself, there must be a distinction drawn between that which is purely
indicative of the modus operandi and that which is otherwise a rule of
procedure only for the purposes attaining substantive rights when they are
infringed. The only reason for holding that an order under s. 293 becomes
an order such as that contemplated by s. 244 can be founded on the
words I have already quoted, namely, that the deficiency of price " shall
be recoverable from the defaulter under the rules contained in this chapter
for the execution of a decree for money."

There is no doubt that such money can be so recovered, that is to say,
by means of attachment, by arrest and by whatever [205] procedure there
may be. The question is : is it therefore an order which becomes a decree
by dint of the definition of that term in s. 2 of the Civil Procedure Code ?
Now, there the Legislature in the first place fully realized that the word
" decree " when loosely used may be confounded with " order " and that
the word "order" when loosely used may be confounded with " decree, "
and therefore the definition there is very specific. It is needless to read
the whole of that portion of the statute ; but it is important to say this:
-"decree means the formal expression of an adjudication upon any right
claimed or defence set- up in a Civil Court when such adjudication, so far
as regards the Court expressing it, decides the suit or appeal."





11 A. 201

12 4.W.N.
'1892) 74.

All. 206



1892 Now I am indebted to the learned Chief Justice for the signi-

MARCH 10. ficance which I am going to attach to these two words " suit " and
" appeal." A defaulting purchaser when ordered to pay up the
FULL deficiency : Is he a " suitor" within the meaning of the word "suit,"
BENCH, or an "appellant "within the meaning of the word " appeal "? If
he is not a suitor, he cannot be an appellant, till he shows that
the order of which he complains is an appealable order. Orders of
**)"* this kind and character are really administrative orders. They do not
12 A.W.N. p ar fc a k a o f the nature of adjudication as that word is used in defining the
(1892) 71, wor( =i " decree." Nor do I think the definition of the word judgment-
debtor " applies to a person of that character, because the word '' judgment-
debtor " is defined to be " any person against whom a decree or order has
been made."

Again, the words " judgment-debtor " and " decree-holder " as defined
in the same clause are correlative terms. Therefore, before we can call a
defaulting purchaser a judgment-debtor, it is necessary to know who the
decree-holder is. Who is the decree-holder under the enactment in a
quarrel with regard to price ? There is no decree-holder. Because a man
who chooses to rush into an auction-room and bids imprudently and goes
the length of paying up the one-fourth of the price and chooses not to pay
up the rest, or cannot pay it up, suffers from the results of his own im-
prudence. He is not a judgment-debtor ; he must forfeit the price and he
[206] must suffer the consequences, and there is no decree-holder,
because of this character.

This being my view, I have to consider the case-law as it stands. I do
not intend to do more than first of all refer to the Full Bench ruling of
this Court in Ram Dial v. Ram Das (1), where ib was held that an appeal
lay from orders under s. 254 of Act VIII of 1859 read with s. 11 of Act
XXIII of 1861 for the reasons mentioned in that judgment. The next
case I wish to refer to is the case of Baijnath Sahai v. Moheep Narain
Singh (2), where Tottenham and Banerjee, JJ., delivered a judgment which
is now before me, and the first paragraph of which is the one applicable
to the point now before us and undoubtedly supports the contention that
an appeal would lie under s. 293, and I think Mr. Conlan, in the able
argument which he addressed to us, was fully entitled to cite that as a
case in support of his contention.

The next case I wish to refer to is a Division Bench ruling of this
Court, namely, the case of Soudagar Mai v. Abdul Rahman Khan (3)
where the learned Chief Justice and the late Mr. Justice Brodhurst deli-
vered a joint judgment and held that such orders as those contemplated
by s. 293 were not appealable. The report of the case shows that no
early cases or authorities were cited, because there is no reference in the
judgment, and I am assured by the learned Chief Justice that no such
authorities were cited.

Then the last, and what I regard as the most important, case for
the purposes of my judgment is the case of Rahim Bakhsh v. Dhuri (4).

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 75 of 155)