JUDGMENT
1. This is a plaintiff's appeal arising out of a suit for pre-emption. The sale deed was executed on 8th January 1923 and a suit for pre-emption was instituted on 7th July 1924. At first an ex parte decree was passed against the defendants vendees on 31st July 1924. Subsequently an application for setting aside the ex parte decree under Order 9, Rule 13, Civil P.C., was presented because there was no personal service on the defendants. The Court was satisfied that good cause had been shown and the ex parte decree was set aside, and the suit was restored on 10th January 1925. After that on 28th April 1925 the defendants obtained a gift of a small share in the same village which placed them on the same footing as the plaintiff. The Court of first instance decreed the suit on 14th December 1925 but the appellate Court has dismissed it. The lower appellate Court has held that by virtue of this gift the defendants were entitled to defeat the plaintiff's suit altogether.
2. It has now been held by a Full Bench of this Court in the case of Ram Saran Das v. Bhagwat Prasad A.I.R. 1929 All. 53 (F.B.)., that a gift taken by a vendee during the pendency of the suit which has the effect of depriving the pre-emptor of his right to be substituted in place of the vendee at the time when the decree is to be passed is a good defence to the suit under Section 19 of the Act. That section, however, has a further provision that where a decree for pre-emption has been passed in favour of a plaintiff, whether by a Court of first instance or by an appeal the right of such plaintiff shall not be affected by any transfer or loss of his interest accruring after the date of such decree.
3. The question before us is whether this provision would govern a case where an ex parte decree has been obtained by the plaintiff once but that decree has been set aside by the same Court. It is noteworthy that the tense used in this portion of the section is the present perfect tense, and we think that it would certainly cover the case of an ex parte decree once passed even though it has been set aside subsequently.
4. When an ex parte decree is passed the defendant has two courses open to him. He may either apply to the Court under Order 9, Rule 13, Civil P.C., and if he shows good cause as required by that rule he may have the decree set aside. Or he may appeal from the ex parte decree and may on the same ground ask the appellate Court to set it aside.
5. In one case the suit will be restored to its original number and in the other it would be remanded by the appellate Court. In either case the ex parte decree would have been the same. It seems to us that in the case where the suit has been remanded on a reversal of the ex parte decree there can be no doubt that nothing which happens subsequent to the ex parte decree would prejudicially affect the right of the plaintiff. The same principle will apply to a case where a decree has been set aside by the first Court itself. There is nothing in the language of this section which would indicate that the decree passed by the Court of first instance must be a subsisting decree up to the time when the loss of the plaintiff's right occurs. We think that if once such a decree has been passed nothing which happens after that date can affect the rights of the parties. The mere fact that for some reason or another the previous decree has been set aside and the suit restored would not take the case out of the scope of Section 19, Agra Pre-emption Act.
6. We are therefore clearly of opinion that in the present case the vendees are not entitled to take advantage of the gift taken by them subsequent to 31st July 1924 on which date the plaintiff succeeded in obtaining "a decree for preemption."
7. We accordingly allow this appeal and setting aside the decree of the lower appellate Court, decree the plaintiff's suit for pre-emption on payment of Rs. 4,500 within two months from this date. The parties will be entitled to costs in proportion to success and failure. If the amount is not deposited within the time allowed the plaintiff's suit will stand dismissed with costs in all Courts. In either event the costs of this Court will include fees on the higher scale.