JUDGMENT George Knox, J.
1. In the Court of first instance the plaintiff, who is here respondent, instituted a suit for pre-emption, stating that he was entitled to preempt both under the Muhammadan Law and the village custom. The Court of first instance held that the plaintiff was entitled to pre-empt and gave him a decree accordingly. The date on which he granted the decree was the 20th of August 1913. From that decree the defendant filed an appeal on the 3rd of November 1913. That appeal was within time as the vacation intervened. Upon the Court proceeding to hear the appeal, a preliminary objection was taken on the part of the plaintiff, to the effect that the defendant had accepted the decree and could no longer appeal from it. The acceptance was said to be on this wise, namely, that on the 5th of September 1913 which was within the month of the period granted to the plaintiff to deposit the pre-emption money, the defendant applied to withdraw the money which had been deposited. Along with the application to withdraw the money, he filed an application stating that he was willing to accept this money and asking that it be given to his Pleader, Munshi Wajid Ali. Upon this application the Court passed an order that the money should be paid; but before it was actually paid the defendant had filed a second application stating that he had changed his mind, would not now accept the money and had in fact on the 3rd of November filed this appeal. The lower Appellate Court held that the defendant could not be allowed to blow hot and cold and that by his first application he had accepted the decree, and dismissed the appeal. The defendant now comes to this Court and says that by what he did he had not lost his right to appeal.
2. No authority has been cited to me either one way or the other, except the case of Anant Das v. Ashburner and Co. 1 A. 267 and that of Moonshee Ameer Ali v. Maharanee Inderjeet Singh 14 M.I.A. 203 : 9 B.L.R. 460 : 2 Suth. P.C.J. 479 : 2 Sar. P.C.J. 731 : 20 E.R. 763. Neither of the cases cited appears to be in point. The facts which govern them are quite distinct from those which govern this appeal. There was no agreement in the present case on the part of the defendant by which he is precluded from filing an appeal. This being so and the appeal having been disposed of by the lower Appellate Court on a preliminary point which is now reversed, I remand the case to the lower Appellate Court with directions to re-admit the appeal under its original number in the register and proceed to determine it in accordance with law. Costs will abide the event.