2006 PLP 910 (SCMR)

MUNIR A. SHEIKH, J.

This petition is directed against the judgment, dated 6-11-2000 of the Lahore High Court, whereby Constitutional petition filed by the respondents against the two orders of the Executing Court, one of condoning delay in the deposit of the amount ordered to be deposited as amount of consideration of the performance of the contract and' other of the issuance of warrant of execution of decree, dated 14-2-1974, has been accepted.

2. The facts of the case are that. the petitioners filed suit for specific performance of agreement of sale, dated 22-8-1971 of land measuring 5-1/2 Marlas which was decreed by the trial Court on 14-2-1974. The petitioners were directed to deposit the remaining amount of Rs.3,500 before 13-3-1974 failing which the suit shall stand dismissed. They did not deposit the amount before the said date, therefore, as per terms of the decree, the suit stood dismissed. However, they filed an execution petition during the pendency of which the respondents also filed civil suit for recovery of possession of the land which according to them had been forcibly taken over by the petitioners under the claim of the said decree. Both these matters were ordered to be taken up together according to the learned counsel. However, we find that on 11-1-1979, the plaint of the suit of the respondents was rejected on the ground that the pleas raised by them primarily related to execution, satisfaction and discharge of decree, therefore, could be decided only by the executing Court, in case there was an execution petition.

3. The execution petition tiled by the petitioners had already been dismissed on 25-4-1975 for non-prosecution. They filed second execution petition on 12-2-1985 in which it was specifically stated that their earlier application had been dismissed for non-prosecution on 25-4-1975. This application was admittedly barred by time. In this petition, the petitioners made an application for condonation of delay in the deposit of the amount under the decree as according to them, the said amount was deposited on 13-3-1974. This application and the execution petition were accepted by the executing Court against which appeal filed by the respondents was dismissed through order, dated 16-9-1989 by the first appellate Court against which Constitutional petition filed by them has been accepted through the impugned judgment, dated 6-11-2000 against which leave to appeal is sought.

4. Learned counsel for the petitioners submitted that in the decree of specific performance of agreement, no date or time could be fixed for deposit of the remaining amount of consideration, for the same could be paid before the order of the executing Court of registration of sale-deed was made in the execution proceedings, for according to settled law, the decree in such a suit is always of preliminary nature.

5. This argument does not arise in this case, therefore, we are not inclined to adjudicate upon the same which may be considered in proper case where, such a question arises for decision. Suffice it to say that the second execution petition made on 12-2-1985 was bared by time, therefore, it was liable to be dismissed under section 3 of the Limitation Act, even if plea of limitation had not been raised in defence. This being so, the said Court was not vested with any power or jurisdiction to entertain the application for condonation of delay in the deposit of the amount of consideration. Even if, the argument of the learned counsel for the petitioners is accepted, for the sake of arguments that the amount could be deposited in the execution petition but the execution petition must be maintainable having been filed within limitation and since no execution proceedings could be entertained and deemed to be legally pending therefore, such a right could not have been exercised if any by the petitioners.

6. For foregoing reasons, the impugned judgment does not suffer from any legal infirmity therefore, this petition has no merits which is accordingly dismissed and leave refused. S.A.K./M-912/SC?????????????????????????????????????????????????????????????????????????????? Leave refused.