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Present ; Ennis and De Sampayo JJ.
SINNATAMBY et al. u. ANTHONYPILLAI et al.
4J)6—Q. 0. Jaffna,, 16,552,
Pre-emption—Decree declaring deed null and void—Order directing thata conveyance he executed in favour of plaintiff if he brings moneyinto Court on specified date—Appeal by defendants—Judgmentaffirmed in appeal—No fresh date fixed by Supreme Court fordepositing money—Motion by defendants that action be dismissedas money was not deposited on specified date—Jurisdiction—CivilProcedure Code, s, 200.
The decree in a pre-emption case declared the deed executed bythe second defendant in favour of the first defendant null and void,and further decreed that the second defendant should execute aconveyance in favour of the plaintiff on a sum of Rs. 450 beingbrought into Court on August 2, . 1922. The defendants appealedagainst this order, but obtained only some relief as to costs. Therecord was returned to the District Court on February 12, 1928.
* The judgment of the Supreme Court was silent as to the date fordepositing the money by the plaintiff. The defendants appliedto the District Court to have the action dismissed on the groundthat the money was not deposited on August 2. The DistrictJudge amended the decree, and allowed the plaintiff time to paythe amount.
Held, that the Court had no jurisdiction to make die order. Butacting in revision the Supreme Court fixed a date for the deposit ofthe money.
THE facts are set out in the judgment.
Hayley (with him /. Joseph), for appellants.
Balasingham, for respondents.
April 11, 1924. Ennis J.—
This is an appeal from an order amending a decree. It appearsthat the plaintiffs on July 20, 1922, obtained a decree declaring theirright to pre-empt a certain land. The decree declared the deedexecuted by the second, third, and fourth defendants in favour ofthe. first defendant null and void, and further decreed that the second,third, and fourth defendants should execute a conveyance in favourof the second plaintiff on the sum of Rs. 450 being brought intoCourt on August 2, 1922. The decree also gave .the plaintiffs costsof the action. The defendants appealed from this decree, and carried
( TO )1084.
the appeal through obtaining a variation of the decree in the matterof costs. The record and the appellate judgment was returned tothe lower Court and received there on February 12, 1923. On June.29, 1923, the defendants applied to the District Court under section200 of the Civil Procedure Code to have the plaintiffs' action dis-missed with costs. On September 18, 1928, the District Courtamended its previous decree, and allowed the plaintiffs time tillOctober 15, 1923, to pay the balance of the Us. 450 after deductinga sum of Rs. 87 odd, which the first defendant had paid into Courtas the plaintiffs' costs of the first appeal. The defendants appealfrom this order.
The appeal has been strongly urged on the ground that the learnedDistrict Judge had no jurisdiction to amend his decree, and it seemsto me that this contention is good. An Indian case of Jaggar NathPande v. Jokhu Tewari 1 was cited in support of the appellants'contention.In that case theCourt on principle heldthatthefull
pre-emptiveprice not havingbeen paid on or beforethespecified
date, the decree became operative as a decree dismissing theplaintiffs' suit with costs, and that the Court of first instance had nopower to pass an order allowing the plaintiff to pay the balance ofthe pre-emptive price into Court and to execute a decree whichcould only be executed against the plaintiff by the defendant. Thatcase clearly'turned on the question of jurisdiction,andonthat
ground thecontention of theappellants in this caseis right,but
there are some other matters to be noticed in connection with thiscase which render it equitable that this Court should consider thematter in revision. The decree in the Court below did not conformwith section 200 of the Civil Procedure Code. It did not declarethat on default of payment the action of the plaintiffs should standdismissed with costs. The defendants in their previous appealdid not draw the attention of the Supreme Court to the fact that asthis money had not been paid they were entitled to have the plaintiffs*action dismissed with costs. The Supreme Court in appeal variedthe decree and did not affirm It, and did not add a declaration iuthe alternative dismissing the plaintiffs' action for non-paymentwithin a specified time. The plaintiffs had paid in a sum of Rs. 820before the decree as a consideration for the transfer they asked for.There was a balance of Rs. 130 to be paid after, the decree had beenmade. The plaintiffs appear to have'been under the impressionthat they were entitled to set off against this the sum which they couldrecover from the defendants by way of costs under the original decree,and it would seem that certain negotiations took place between theparties with regard to this.
In these circumstances I am of opinion that the learned Judge’sorder is equitably right. It fails only on this point of jurisdiction,and while setting aside the order, I would in revision amend the
1 IS Alt. 223.
original decree by declaring the plaintiffs entitled to a conveyancein their favour on payment of the full sum of Rs. 450 into Courton or before the expiration of one month from the date of the receiptof the record in the Court below, unless the same has already beenpaid in, in which event they will be entitled to a conveyance at once.
1 would make no order for costs on appeal.
De Sampayo J.—I agree.
Decree ant ended.
SINNATAMBY et al. v. ANTHONYPILLAI et al