P L D 1961 (W (PLP)

MASUD AHMAD, J.--‑This appeal arises out of two suits for pre‑emption filed by Khan Shah Muhammad Khan appellant and Chiragh Khan respondent to pre‑empt the sale of some land made by Nawabzada Ghulam Muhammad Khan respondent in favour of Allah Diwaya, Amir Bakhsh and Pir Bakhsh, respon dents Nos. 1 to

3. Khan Shah Muhammad Khan, son of the vendor, claimed the right of pre‑emption on the basis of his relationship, while Chiragh Rhan respondent claimed that right on the basis of ownership of land in the estate. The sale purport ed to have taken place in consideration of a sum of Rs. 20,853‑8‑0, ‑but the appellant ‑claimed a decree on payment of a sum of Rs. 10,000 only. During the course of the proceedings, parties came to a compromise and on the 27th March 1954 the trial Court passed a decree in favour of the two pre‑emptors, conditional on payment of a sum of Rs. 20,853‑8‑

0. The appellant having a preferential right was given the option to exercise it by depositing the sale price on or before the 20th April 1954, and if he failed to do so, the rival pre‑emptor was to exercise that right by depositing that money v4thin a further period of one week, namely, on or before the 27th April 1954. Parties were directed to bear their own costs on the ground that they had admitted "the claim of each other on the main points:"

2. The appellant deposited a sum of Rs. 20,853‑4‑0, i.e., four annas less than the amount on payment of which his suit was decreed, including one‑fifth of the probable value of the land in dispute, within the required period.

3. Khan Shah Muhammad Khan appellant filed an appli cation for execution of the decree on the 17th of May 1954 and it was then that it was discovered that the amount deposited by him fell short by four "annas than the amount which the Court had asked hint to deposit. This appeal was filed on the 25th of June 1954. In the memorandum of appeal the decree of the trial Court is challenged on two grounds; firstly, that the appel lant should have been awarded costs of the 'suit, and, secondly, that the tune given to the appellant for depositing the money being very short and on account of the "Court's own mistake" the amount deposited being short by four annas further time may be granted for deposit of the pre‑emption money. 4. 'The appeal is contested only by the vendees, namely, respondents Nos. 1 to 3, though respondent No. 5, the rival pre emptor, also put in formal appearance.

5. So far as the question of payment of costs of the suit is concerned, we think that the view of the case taken by the trial Court is correct. When the suit was filed, the appellant was not prepared to pay the whole of the sale price claimed by the vendees, and if he had succeeded on merits and had obtained a decree on payment of a sum of Rs. 10,000 only, he would ha\ e been entitled to costs of the suit, but as this was not the case and A as, on account of the compromise arrived at between the, parties the whole of the amount claimed by the vendees was allowed to them, the trial Court was justified in directing that the parties shall bear their own costs. No interference in that part of the decree is, therefore, called for.

6. The main contest centres round the deposit of the pre emption money. The question is whether in the circumstances explained, this Court is empowered to extend time of payment of the balance of the pre‑emption money, namely, four annas, and whether such an order should be passed or not. A reference to the record of the case has disclosed that a sum of Rs. 4,170 was deposited by the pre‑emptor on the lath March 1954 and a sum of Rs. 16,683‑4‑0 on the 12th March 1954. Both the forms of deposit appear to have been prepared by the Court and bear the signatures of the Presiding Officer. The fault, if any, was not B entirely of the appellant and the Court was as much responsible for committing the mistake as the appellant was.

7. The learned counsel for the vendees drew our attention to a circular letter, addressed by the Registrar, High Court of Judicature at Lahore, to all the District Judges in the Punjab on the 14th April 1923, in which it was stated that in suit‑ for pre emption the "Judges consider that it should be left to the decree holder to secure a copy of the decree and place upon him the full onus of complying with its conditions." He also referred to paragraph I of Chapter 11‑C of the High Court Rules and Orders, Volume I, wherein it is stated that it is the duty of the decree‑holder to secure a copy of the decree and comply with its conditions. On the basis of these two authorities, 'the learned counsel contended that as the appellant failed to obtain a copy of the decree before depositing the pre‑emption money in the Court, it was his fault that the amount actually deposited was short by annas four and, therefore, no indulgence should be shown to him. He contended further that the terms of decree passed by the trial Court not having been complied with, the appellant had lost his right arid that decree has become incapable of execution.

8. So far as the first‑mentioned contention is concerned; it is, no doubt, true that the appellant does not appear to have obtain ed a copy of the decree before depositing the pre‑emption money in the Court, but, as stated above, it was not entirely his fault that the money deposited in the Court was short by annas four. The deposit forms had been prepared by the Court and duly signed by the presiding officer and, therefore, the Court should have asked the appellant to deposit the full amount in accordance with the terms of the decree. It is unbelievable that the appellant intentionally deposited annas four less than the amount which he was required to pay. It might be that the official concerned, in collu sion with the opposite‑party, prepared wrong deposit forms and as the presiding officer could not have checked up the deposit forms with reference to the terms of the decree, the fault was D primarily of the Court official and the presiding officer, and not that of the appellant. The contention raised by the learned counsel, in this respect, has, therefore, no force.

9. In support of the second‑mentioned contention, the learn ed counsel for the vendees referred to Khan Muhammad v. Ahman and others (73 I C 291) in which it was held that where the decree was perfectly clear and the pr‑‑‑emptor had failed to comply with the terms of that decree, he was not entitled to any extension of time for payment of the money. He also referred to a case of the Allahabad High. Court as Suranjan Singh v. Rambahal Lai (21 I C 585), in which it was held that section 148 of the Civil Procedure Code did not entitle a Court to extend the time fixed by a pre‑emption decree for payment of the purchase money. Somewhat similar views have been expressed in three other cases, Kanhaya Lai v. Muhammad Shafi Khan (14 P L R 485), Rahmat Khan v: Nawab Khan (A I R 1925 Lah. 91) and Sukhram Das v. Nazar Muhammad.( I L R 6 Lah. 316), relied upon by the learned counsel. In none of these cases the question was considered whether the appellate Court can extend the time for deposit of the pre‑emption money if an appeal against the decree had been lodged in time. It is, no doubt, true that after the trial Court has passed a decree, it cannot, by modifying that decree, extend the period of deposit, under section 148 of the Code of Civil Procedure. It is also obvious that if the terms of the decree are not complied with and the pre‑emption money is riot deposited F in time, the decree becomes incapable of execution and the deeree holder cannot obtain possession of the property in dispute. The position, however, would be different where the validity of the decree itself is being challenged and an appeal to that effect is filed in time. For extending the period of limitation the appellate Court need not rely on the provisions of section 148 of the Code of Civil Procedure, nor is it necessary for that Court to declare whether the decree had or had not become incapable of execution. If circumstances justify, there would be nothing to prevent the appellate Court from modifying the terms of the decree, by extend ing the time fixed for deposit of the pre‑emption money. Before filing the appeal, it was, in our opinion, not obligatory for the appellant to strictly comply with the terms of the decree arid the right of appeal could not be taken away merely on account of `any such default. A somewhat similar question arose in Malik Akbar Ali v. Hassan Ali (67 P L R 1895) and it was held that the lower appellate Court was‑not justified in rejecting the appeal on the ground that the decree of the first Court had become void owing to the non‑pay ment into Court by the plaintiff of the whole of the pre‑emption money. The 'following observations made by the Court, in this case, are very significant: In LaltaBakhsh Singh v. GangaBakhsh Singh (43 C 219) a Bench of the Judicial Commisii3ner's Court, Oudh, held that the payment of the purchase‑money adjudged by the trial Court in a suit for pre emption was not a condition precedent to the right of a person to file an appeal from the decree by which that payment is direct ed, if he disputes either the amount payable or the method of its payment. A somewhat similar question arose in Thakur Das v. Tulsi Das (70 P R 1890) and a full Bench of the Punjab Chief Court held that in the case of an appealable decree, the decree of the first Court was subject to the orders of the appellate Court on appeal when the appeal was properly made against the decree as a whole, whether such appeal was presented before or after the time appointed for payment had expired without compliance with the directions in the decree.

10. Keeping in mind the observations made in the autho rities referred to above, we are of opinion that though the appel lant did not fully comply with the terms of the decree of the trial Court, inasmuch as the amount deposited by him fell short by annas four, the appeal having been filed within the prescribed period, this court is competent to extend the time fixed by the K trial Court for deposit of the money, we are also of opinion that the failure on the part of the appellant to deposit the full amount of pre‑emption money was not due to any neglect on his, part, nor was this default intentional and, therefore, we would be justified in granting further time for deposit of the money.

11. For. reasons given above, we accept this appeal to the extent of directing that the pre‑emption money, as ordered by the trial Court, should be deposited within a period of one month from today's date. If the amount already deposited by the appellant has not been withdrawn, it would not be necessary to deposit the amount again in compliance with the terms of the decree which we are passing. In the peculiar circumstances of the case, we direct the parties to bear their own costs throughout. K. M. A. Appeal accepted.