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Regular Second Appeal No. 866 of 1977, heard on 29th November, 1982.

‑‑Ss. 15 & 21‑Civil Procedure Code (V of 1908), S. 100‑Decree of pre‑emption in favour of appellant‑Suit of vendee respondent asking for cancellation of sale‑Held, of no effect as decree of pre‑emption in favour of appellant cannot be affected by anything happening sub sequently.

1982 S C M R 1024 rel.

Yusuf Ali Khan for Appellant.

Muhammad Naweed Barni for Respondent No. 1.

Ch. A. Waheed Saleem for Respondent No. 2.

Date of hearing : 29th November, 1982. .

Respondent No. 2 sold some land in favour of respondent No. I which was pre‑empted by the appellant and his suit was decreed on 10‑4‑1969. After an interlude .of litigation, the appeal of the respondent No. I against the pre‑emption decree was dismissed by the learned District Judge on 20‑12‑1975. Respondent No. 1 filed a Regular Second Appeal No. 104/76 against the judgment and decree of the appellate Court just mentioned which was dismissed in limine. Respondent No. 1, then filed Petition for Special Leave to Appeal No. 77‑R/76 in which it was agitated that since the sale itself had given way in a suit by the vendee‑respondent No. 1 against the vendor, respondent No. 2 when that the suit was decreed on 7‑9‑1974 against which an appeal is pending, therefore, the pre‑eruption litigation should have been stayed. The learned Supreme Court while dismissing the aforesaid Civil Petition for Special Leave to Appeal observed as follows

"As to whether the pre‑emption decree was affected by the subsequent suit to avoid the sale the learned Single Judge held that the pre emption decree was not affected. In holding, so the learned Single Judge observed thus The right in pre‑emption is not lost if the sale is retracted after once it has been exercised. The decree for declaration cannot bind the pre emptor even if passed against him because a cause of action which has once accrued to him would continue and in this case it has resulted in a final decree.

The conclusion of the learned Single Judge is unexceptionable, for, it was a pre‑emptible sale and the cause of action accrued to the respondent to file the pre‑emption suit under section 21 of the Punjab Pre emption Act when the sale was complete. It is also well‑settled that the pre‑emption decree is not affected by anything which happens subsequently."

Reference is 1982 S C M R 1024 at p. 1025.

2. From the above it is quite clear that the decree of pre‑emption in favour of the appellant cannot be affected by anything which may happen subsequently. Therefore, the suit of the vendee respondent No. 1 asking foe cancellation of the sale by respondent No. 2 in his own favour is of no effeci.4 as regards the rights of the successful pre‑emptor, the appellant. Hence, this appeal has to be accepted on this short ground. It is accordingly ordered and the judgment and decree of the Courts below set aside. The appellant shall have his costs.

M. Y. H. Appeal accepted.

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