J.N. Bhat, J.This is a civil second appeal against the decree of the learned District Judge, Poonch, dated 8th August 1967 whereby he has dismissed the appeal of the appellant against the decree of the Sub Judge Poonch dated 31-8-1966. The appellant was a plaintiff in a suit for pos-session on the ground of right of prior purchase of half of land measuring 63 Kanals 8 marlas under survey No. 77-min in village Dhera Mohra. Tehsil Mendhar. The case of the plaintiff was that the defendant No. 1 Nain Singh had purchased this land from the plaintiffs uncle Mehar Din, who was a co-sharer of the land sold along with the plaintiff. The land was sold by means of a sale deed dated 18-4-1962 for an ostensible consideration of Rs. 3,000. The plaintiff claimed a decree for possession of this land on payment of Rs. 1,000 which was the market price of this land according to the plaintiff. The suit was resisted by the defendant No. 1 who denied the plaintiffs right of prior purchase. The consideration of Rs. 3,000 was alleged to have been actually paid to the vendor by the vendee. The trial Court on the pleadings of the parties framed the following issues in the case:

1. Whether the plaintiff has prior right of purchase quo defendant No. 1 O.P. on plaintiff,

2. If issue No. 1 is proved, whether the plaintiff has waived his prior right of purchase O.P. on defendant 1.

3. Whether the sale price was bona fide fixed and paid at Rs. 3,000 O.P. on defendant 1.

4. If issue No. 3 is not proved, what is the market price of the suit property O.P. on parties.

5. Whether valuation of the suit for the purpose of court-fee and jurisdiction has not been properly fixed. If so, what should be the valuation and how should it be arrived at O.P. on defendant 1.

6. Whether defendant 1 has effected any improvements in the house in dispute bona fide and if so, what is the value of improvement and is he entitled to be compensated for the same O.P. defendant.

7. Relief:

2. After recording evidence of the parties, the trial Court decreed the suit of the plaintiff with costs and directed the appellant-plaintiff to deposit Rs. 3,000 purchase money within two months from 31-8-1966 of course taking credit for one-fifth of the purchase money already deposited by the plaintiff. The trial Court ordered that if this amount was not deposited within the above time limit, the suit of the plaintiff would stand dismissed with costs. An appeal was preferred by the plaintiff before the District Judge, Poonch, against this decree. In the appeal among other grounds, a ground was taken that the time for depositing the money as directed by the trial Court had not yet expired the time granted by the trial Court was very short and as the correct consideration payable by the plaintiff had yet to be determined, the date for deposit of the purchase money be extended. Along-with the appeal, an application was presented by the appellant-plaintiff for extension of time for depositing the purchase money determined by the trial Court. In paragraph 2 of the said application the plaintiff submitted that he having preferred an appeal for reducing the price assessed by the trial Court, the question of depositing the money by the date as fixed by the said court, which had not yet expired did not arise, and that: he had also made a prayer in the memorandum of appeal for extension of time for depositing the purchase money of the land in dispute, which according to him was only Rs. 1,000/-. This application for extension of time was resisted by the respondent and the lower appellate Court on 29-10-1966 passed the following order:

That the counsel for the applicant i.e., appellant has admitted that at this stage the granting of this application of the applicant would be an amendment of the decree, therefore, no further argument is necessary in this application. The application should therefore come up along-with the appeal on the date fixed i.e. 25-11-1966.

There was some dispute between the parties about the court-fees payable and the lower appellate Court after hearing the parties directed on 26-6-1967 the appellant to make up the deficiency in the court-fee. The appellant paid the deficit court-fees on 20-7-1967. Thereafter arguments were heard on merits. Among the arguments advanced at the bar before the lower Appellate Court, it was contended that as the appellant had not deposited the purchase money determined by the trial Court within the time fixed by it, i.e., within 2 months of the decree the appeal should be dismissed. An authority of the Supreme Court reported as Naguba Appa Vs. Namdev, was cited in support of this contention. The lower Appellate Court finding itself bound by the Supreme Court authority, felt helpless and dismissed the appeal on this very ground alone. It is against this order and decree of the lower Appellate Court that the plaintiff has come in second appeal to this court.

3. We have heard the learned Counsel for the parties.

4. Mr. Ishwar Singh, the learned Counsel for the appellant argued that when time had been fixed by the trial Court for paying the purchase money it could under the provisions of Section 148 C.P.C. enlarge such period even though the period originally granted had expired. Therefore, according to him the trial Court could have extended the time for payment of the money but as the case was in appeal before the lower Appellate Court, the lower appellate Court was not helpless as it has said in its judgment but it could extend the time for payment of the purchase money by the plaintiff. In support of his contention he referred to AIR 1939 Nag. 140 ; Bengal Agency and Stores Syndicate and Others Vs. Stores and Engineering Supply Co., and Mahanth Ram Das Vs. Ganga Das, . We are afraid that Section 148 C.P.C. has no bearing on this case. Section 148 C.P.C. refers to cases where a particular court is still ceased of a certain matter. The trial Court ordered the plaintiff on 31-8-1966, when it passed the decree, to deposit Rs. 3,000/- minus the amount already deposited by him Within two months and further directed that the suit shall stand dismissed if the money was not paid within the time limit; it became functus officio after the decree was passed by it. It had no jurisdiction over the suit after the decree. The language of Section 148 C.P.C. is so plain that we do not think it necessary to support this view of ours by authorities. However a reference may be made in this behalf to Bhutnath Das and Others Vs. Sahadeb Chandra Panja, ; AIR 1946 Oudh 52 ; Haji Eakub Shaikh and Another Vs. Samjan Bibi and Others, ; AIR 1915 Oudh 197; AIR 1923 Nag. 210 and AIR 1924 Lah. 359 and so on and so forth. Therefore we do not agree with this argument of the learned Counsel for the appellant. But apart from the provisions of Section 148 C.P.C. we have to examine the facts of this case and decide for ourselves whether the lower appellate Courts order dismissing the appeal simply on the ground that the appellant had failed to deposit the purchase money within the time fixed by the trial Court, is proper and can be upheld. It may be straightway mentioned that there is not apparent unanimity in judicial pronouncements upon this fact namely when the trial Court fixes a period for the deposit of the purchase money and an appeal is preferred by the plaintiff pre-emptor against the whole decree before that period expired, what is the effect on the appeal if the purchase money is not deposited by the appellant-plaintiff within the time fixed by the trial Court. On the one hand the following authorities may be mentioned: 53 Pun. Re. 1903 p. 205; (1913) ILR 35 All. 582; AIR 1923 Nag. 210; AIR 1954 Gau 4 ; (1896) ILR 18 All. 223 , and lastly Naguba Appa Vs. Namdev, . On the other hand the following authorities may be noticed (1912) 17 Ind. Cas. 868 (1) (All); AIR 1939 Nag. 120 ; AIR 1940 202 (Nagpur); Girdhari Singh and Another Vs. Bhupal Singh and Others, ; AIR 1944 P&H. 22 , and 60 Pun. Re. 1913 p. 331. We have used the word apparent because on a close scrutiny of the authorities above mentioned, there is no real conflict. Let us begin with the Supreme Court authority reported as Naguba Appa Vs. Namdev, . It is a very small judgment It lays down that:

Mere filing of an appeal does not suspend the decree for pre-emption and unless that decree is altered in any manner by the court of appeal the pre-emptor is bound to comply with its direction with regard to the deposit of amount within the fixed time.

In that case the appeal was withdrawn and the judgment does not indicate as to what were the grounds taken in the appeal. This authority is not at all applicable to the facts of the present case as will be abundantly clear later on in this judgment.

5. 53 Pun. Re. 1903 p. 205 is an Urdu Judgment of Justice Anderson and Justice Robertson. In that case a Tehsildar had passed a decree directing the plaintiff to deposit the money within two months. The plaintiff deposited the money after four days of the expiry of the period fixed by the Tehsildar for deposit. It was held that the plaintiff was negligent and therefore their Lordships did not interfere with the decision of the Tehsildar. Their Lordships further held that the plaintiff had not shown any cause for not depositing the money within time although according to their Lordships the first appellate Court had the power to extend the time for payment. Therefore this authority also does not support the case of the respondent but rather when understood properly may support the case of the appellant.

6. (1913) ILR 35 All. 582 is an Allahabad Full Bench case. In this case the point for determination was whether u/s 148 C.P.C. the Court could extend the time fixed by the decree for payment of the purchase money in a preemption case. It held that Section 148 C.P.C. did not empower the court to extend the time. It was further held that an order u/s 148 C.P.C. was not a decree and therefore not appealable. We have already held that Section 148 C.P.C. has no application to this case and therefore we are in respectful agreement with the dictum laid down by their Lordships in this case.

7. AIR 1923 Nag. 210 also is a case which has no bearing on the facts of the present case. In that case it was decided that the executing court had no power to extend the time fixed in a pre-emption decree for payment of the purchase money and Section 148 C.P.C. did not empower the executing court to extend the time. It was further held that Section 151 also could not empower the executing court to extend the time.

8. AIR 1954 Mani 4, pertains to a case where the pre-emptor was directed to deposit the sale money by 16th Nov. 1951. The appeal was dismissed on 5-5-1952 and a subsequent application to the District Judge was made to extend the time till 10-8-1953. It was held that payment after the period prescribed in the decree would not be a valid deposit. This recital would clearly show that even this case has no application to the controversy involved in this case.

9. (1896) ILR 18 All. 223 a decree was passed in favour of the plaintiff in a suit for pre-emption. The plaintiff did not pay the entire pre-emptive price within the time fixed by the court. The defendant appealed long after the time prescribed by the original decree for payment had expired, and the defendants appeal was dismissed. The plaintiff thereafter paid the balance of the purchase money without there being any extension by the court for such payment. It was held that such payment would not entitle the plaintiff to a decree for pre-emption.

10. Now let us turn to the other authorities:

11. The Allahabad High Court in (1912) 17 Ind. Cas. 868 (1) (AIL), held that when the plaintiff-appellant appealed to the District Judge against the decree of the lower court fixing a time for payment of the purchase money but failed to deposit the purchase money within the time fixed by the trial Court, the District Judge dismissed the suit of the plaintiff because the money had not been paid within the time fixed by the trial Court. This decision of the District Judge was set aside by the High Court and the case was remanded to the lower appellate court for decision according to law.

12. In AIR 1939 Nag. 120 the plaintiff was required to deposit the purchase money within a certain period but he went in appeal against the decree of the trial Court and never made the deposit of the purchase money. It was held that the plaintiff could appeal against the decree. It was further held that if the appellate court varied the price fixed by the first court, there was no reason why it should not have the power to vary the time fixed for payment of the price.

13. In AIR 1940 202 (Nagpur) it was held that:

An appellate court on an application made within time fixed for payment of pre-emption money can extend time fixed by trial Court for making deposit of purchase money.

14. In Girdhari Singh and Another Vs. Bhupal Singh and Others, does not strictly apply to the facts of this case but the principle laid down therein recites that:

Court has discretion to extend the time for payment of pre-emption money in court. Where the date fixed for payment happened to come in vacation, the money was allowed to be deposited on the day the Court opened.

15. In AIR 1944 P&H 22 it was laid down that Section 148 C.P.C. does not apply to deposit of purchase money under the orders of a court decree but the appellate court could extend time.

16. In 60 Pun. Re. 1913 p. 331 their Lordships extended the time for payment because the money had been remitted by money-order by the plaintiff pre-emptor within the time fixed by the trial Court.

17. In our opinion the nearest authorities applicable to this case are (1912) 17 Ind. Cas. 868 (1) (All.) which is directly on the point and AIR 1940 202 (Nagpur) . After detailing the above authorities let us examine the facts of this case.

18. The plaintiffs suit was that the sale price of Rs. 3,000/- entered in the sale deed was fictitious, it consisted of old debts. The market price of this land was hardly Rs. 1,000/- on which he was prepared to pre-empt this land. This issue was decided against the plaintiff by the trial Court and the trial Court fixed two months time for payment of the rest of the purchase money. The plaintiff went in appeal to the District Judge complaining against the fixation of the sale price at Rs. 3,000/- as well as fixing the time limit of two months for payment of the purchase money. He took it as a specific ground of appeal and further made an application for extension of time for the deposit of the purchase money, along with the appeal. This application was not rejected by the lower appellate court but by its order dated 29-10-1966 which we have reproduced above the lower appellate court virtually postponed the decision on that application along with the main appeal because according to the lower appellate court as well as according to the learned Counsel for the appellant, any such extension would be an amendment of the decree of the trial Court, which could not be done at interim stage. Therefore this request of the plaintiff for extension of time for payment of the purchase money was kept pending by the lower appellate court and was not rejected by it. The lower appellate court has not decided the case on its merits at least so far as the fixation of the purchase money and the period allowed by the trial court for depositing the rest of the purchase money is concerned. It felt itself bound by the observations of their Lordships of the Supreme Court in Naguba Appa Vs. Namdev, which we pointed out did not apply to this case. In our opinion, therefore the lower appellate courts decision in dismissing the appeal simply on the ground that the deposit was not made within the time limit fixed by the trial Court, is not correct and as such it has to be set aside.

19. We therefore allow this appear and send back the case to the lower appellate court with the direction that it will decide the whole case on merits Including the amount that the plaintiff-appellant shall have to pay fn order to be able to exercise his right of prior purchase as well as the time within which he has to make payment of the balance of the purchase money and other allied matters that may arise in the appeal. Costs of this appeal shall abide the result in the lower appellate court.