present case. The judgment in that case delivered by Sir Barnes Peacock, Chief Justice, pointed out that if a decree is obtained for delivering a cow and a horse is delivered that cannot be considered to be an act done in execution of the decree. "It would be doing something wholly different from "that which was ordered by the decree." In that particular case the decree merely ordered that an embankment should be lowered to its proper height, and the Nazir in addition caused breaches or holes to be cut in the embankment so lowered because he thought them necessary for the protection of the bund from the flow of water over its surface. It was held that this was not done in execution of decree. Similarly the act of the Patwari in the present case in delivering possession of land when warrant of Court directed delivering possession of equity of redemption cannot be called an act done in execution of decree. The case is very much alike to another illustration given in the same judgment, viz., where a decree should order "Rs. 500 to be levied, and instead of levying Rs. 500 the "execation Court or the Nazir should deliver a zamindari." It appears to me that Section 244, Civil Procedure Code, bars regular suit where the question relating to execution of a decree is raised bonâ fide. But when the decree itself on the face of it is wholly irrelevant to the question raised and the wrong-doer takes the plea of bar to shield his unlawful gain secured even against the express orders of the executing Court, possibly in collusion with the officer executing the decree and in the absence of the judgment-debtors, it would seem to me that Section 244 would have no application. In the present case the Divisional Judge has found that the defendaut had no business to obtain possession of the land, and there is not even a plausible defence on the merits. The matter is absolutely clear that the defendant could not obtain or retain possession without payment of Rs. 1,079, and the plea of bar under Section 244 was raised on the ground which is untrue that the decree awarded actual possession of land. Under the circumstances no bona fide question relating to execution of decree arises in the case aud Section 244, Civil Procedure Code, is no bar to the maintenance of the regular suit. But further even if there were any room for doubt on this point the plaint may be treated as an application for execution of decree for claiming restitution of lands wrongfully delivered to defendant by the Patwari when executing the decree. Viz., Biru Ma- This coarse was approved of or adopted in the eases noted hata v. Shyama on the margin. Churn Khawas(1), and V. Kewal Ram (2), The only question for determination under the circumstances Pasupathy Ayyar would be whether the Munsif who heard and decided the v. Kothand a present suit was competent to entertain the application for Rama Ayyar (3), restoration. I have no doubt that he was competent both by Jotindra Mohan Tagore reason of transfer of business by the District Judge as well as Mohamed Basir being the successor in office of the Munsif who executed the Chowdhry (*). decree. There is no conceivable defence against the application for restoration, the mistake made being apparent on the execution file. The plaintiff is therefore clearly entitled to claim possession of the lands in suit even by restitution in executior proceedings. For the foregoing reasons I accept the appeal, reverse the decree of the lower Appellate Court and restore the decree passed by the first Court with costs throughout. APPELLATE SIDE. Appeal allowed. No. 6. Before Mr. Justice Lal Ch ind. MAULA BAKHSH AND OTHERS,-(DEFENDANTS), APPELLANTS, DEVI DITTA,- (PLAINTIFF),-RESPONDENT. Civil Appeal No. 884 of 1906. Custom-Pre-emption-Pre-emption on sale of house property-Kat'a Missar Beli Ram, Amritsar city-Funjab Laws Act, 1872, Section 11, Found that the custom of pre-emption in respect of sales of house property based on vicinage exists in Katra Missar Belt Ram, a sub-division of the city of Amritsar. (1) I. L. R., XXII Calc., 48 3. (3) 1. L R., XXVIII Mad., 64. Sohawa Mal v. Chattu Mal (1); Mamon v. Ghaunsa and others (2) referred to. Gokal Chand v. Mohan Lal (') distinguished. Further appeal from the decree of A. E. Hurry, Esquire, Divisional Oertel, for appellants. Sham Lal, for respondent. The judgment of the learned Judge was as follows : LAL CHAND, J.--The property claimed by pre-emption in 6th August 1906. this suit is situate in Katra Missar Beli Ram, a well recognised sub-division of Amritsar city. The defendant vendee in his examination, dated 14th April 1905, admitted that if a custom of pre-emption be found to prevail in the katra plaintiff would have a superior right. The vendee thus waived all objections on score of the nature of the property which were raised in his written statement, and the issue fixed was whether a custom of pre-emption by vicinage existed in Katra Beli Ram. The lower Courts have agreed in finding this issue in the affirmative in plaintiff's favour, and I see no reason to arrive at a different conclusion. In two cases relating to properties situate in this subdivision decided on 22nd February 1865 and 15th August 1876 a custom of pre-emption by vicinage was found to prevail. In the first case (Chitto v. Maya), decided by Munshi Jaishi Ram, the existence of custom was admitted by the vendee and the suit for pre-emption was decreed. In the second case (Dina Nath v. Taboo) the existence of custom was denied, but the claim was decreed by Pandit Behari Lal, Extra Assistant Commissioner, after an exhaustive and careful enquiry. In this case an instance (Malan v. Umar Bakhsh) in Katra Parja, au adjoining sub-division, was cited to the contrary. But this instance was explained in Sohawa Mal v. Chattu Mal (1), where after a careful consideration of evidence in the case and of twelve instances in neighbouring sub-divisions including the one concerned in this suit a custom of pre-emption by vicinoge was found to prevail in Katra Parja. This case is of considerable importance as Katra Parja adjoins the sub-division now under reference, while quite recently the same custom was also found to exist in another sub-division in the neighbourhood, viz., Katra Moti Ram, Mumon v. Ghaunsa and others (1). Plaintiff's claim for pre-emption is thus supported by two instances of admitted and proved custom in the sub-division itself supplemented by several instances in the neighbouring sub-divisions. It was argued by the counsel for appellant relying on Gokal Chand v. Mohan Lal (2), that two instances in the subdivision combined with several instances in the neighbourhood are not sufficient to establish the alleged custom, and further that the existence of alleged custom was rebutted by numerous uncontested sales in the sub-division itself. The authority quoted for appellant is distinguishable, as it was held in that case that the existence of right of pre-emption had been assumed in the instances quoted aud in "neither was there any real contest on the point." In the present case as already shown in neither instance was the custom assumed. In the first case decided in 1865 the vendee's statement made it clear that he implicitly acknowledged the existence of pre-emption and in the second case the existence of custom was established after contest and due enquiry. As regards the uncontested sales, nine sale-deeds were produced, the first Court having rightly rejected alleged sales which were not supported by sale-deeds. The circumstances attending these sales are not fully borne out on the record and it is no way improbable that the omission to sue for preemption may have been due in eich case to causes independent of the absence of custom of pre-emption. It may have been due to want of funds or absence or reluctance to litigate with a powerful or influential vendee, or the sale may have been kept secret or influences brought to bear on the pre-emptor to give his cousent or to desist from asserting his claim. The sale-deeds produced extend in time from 1891 to 1905, and their number decidedly is not so large or overwhelming as to negative the custom found to prevail in 1865 and established after a careful enquiry in 1876. The evidence relied upon in rebuttal is thus intrinsically weak being of a negative character supported only by private transactions, and it cannot reasonably be held to outweigh the affirmative proof established by a decision of Court after contest and enquiry. In the reported cases relating to Kat a Parja (Sohawa Mal v. Chattu Mal (1), several sales to strangers in the kucha itself were relied upon against the prevalence of pre-emption, but these were not held as sufficient to negative the custom. It further appears on the present record that the defendants indirectly acknowledged the existence of custom by offering in reply to plaintiff's notice to give up the house if they were paid the full price as entered in the sale-deed. I have therefore no doubt that custom of pre-emption by vicinage is proved to exist in Katra Missar Beli Ram where the property in suit is admittedly situate. I therefore uphold the decrees of the lower Courts and dismiss the appeal with costs. Appeal dismissed. No. 7. Before Mr. Justice Chitty and Mr. Justice Lal Chand. Versus KARIMAN AND OTHERS,-(PLAINTIFFS),—RESPONDENTS. Civil Appeal No. 490 of 1906. Custom--Pre-emption-- Claim to pre-emption by reason of owning site of house sold-Muhalla Khajuranwala, Jullundur city. Found, that a custom of pre-emption exists in Muhalla Khajuranwala in the city of Jullundur under which the owner of the site has a right of pre-emption in respect to the buildings erected on it. Further appeal from the decree of J. G. M. Rennie, Esquire, Muhammad Shafi, for appellant. Shah Din, for respondents. The judgment of the Court was delivered by on APPELLATE SIDE. LAL CHAND, J.-This is an appeal in a suit for pre-emption 4th August 1906. of a house situate in Muhalla Khajuranwala of the town of Jullundur. The plaintiff-respondent is owner of the site which the house sold is built, and as such has claimed preemption by custom. The defendant-appellant pleaded that no custom of pre-emption existed in Muhalla Khajuranwala, and that at any rate no custom existed as would entitle the plaintiff to claim pre-emption by reason of his being owner of the site of (1) 154 P. R., 1882, |