1984 PLP 3049 (CLC)

Kazi Zamir Ashraf for Appellant. Malik Mahmood for Respondent No.

1. Muhammad Yaqoob Sabir for Respondent No.

2. Date of hearing : 18th March, 1984. The facts fording background of this second appeal under sec tion 100, C. P. C, are that Muhammad Rafique filed a pre-emption suit against Barkat Ali, deceased to pre-empt the sale of land measuring 50 kanals 11 marlas made vide mutation No. 1195, dated 29th April, 1972. Barkat Ali defendant /vendee conceded to the suit and by consent the suit was decreed vide judgment and decree, dated 15th September, 1973 with the direction that sale price shall be deposited by 15th October, 1973 otherwise the spit shall stand dismissed. Muhammad Rafique, present appellant, allegedly submitted an application, dated 15th October, 1973 saying that in the suit consent decree, dated 15th September. 1973 was granted on the payment of Rs.21,300 till 15th October, 1973. The other averments made read as under :- This application bears a note, dated 15th October, 1973 of the Reader of the Court that Presiding Officer being on leave the application alongwith report to come before the Court on 27th October, 1973. The report of Ahlmad, dated 25th October, 1973 also appears on this application and the Reader of the Court again op 25th October, 1973 appended a note to the effect that notice pairvi to the parties be issued for 15th November, 1973 as 27th October, 1973 the date fixed earlier has been declared a holiday due to Eidul Fitar. On 15th November, 1973 the trial Court certified the payment. . Muhammad Sharif respondent who bad filed another pre emption suit to .pre-empt the sale of the land in dispute challenged the order, dated, 15th NpVember, 1,973 by fi)ing an appeal in the Court of learned Additional District Judge, Kasur. In this pre-emption suit Barkat Ali vendee had not disclosed that the other -suit filed by Muhammad Rafique bad been decreed by consent. The appeal filed by Muhammad Sharif was treated a revision petition by the learned Addi tional District Judge and the same was accepted vide judgment, dated 23rd May, 1974. The order, dated 15th November, 1973 was set aside and it was declared that the suit of Muhammad Rafique pre-emptor/ appellant stood dismissed as after 15th October, 1973 no payment was made or certified within time granted for the purpose. This judgment dated 23rd May, 1974 was then assailed by Muhammad Rafique appel lant by filing this second appeal.

2. Learned counsel for Muhammad Sharif respondent has argued that as the impugned order was passed in revision do second appeal against such judgment lies to the High Court. In reply the submission of the learned counsel is that the first appeal filed by the respondent spas competent as the certification of the payment of the decretal amount was made under Order XXI, rule 2, C. P. C. and an order passed under the aforesaid rule is appealable under section 104 read with section 47, C. p. C. There is no merit in this submission of the learned counsel for the appellant. It was held in Bahadur v. Mirza Abdul Qayyum and another (P L D 1969 Lah. 636) that the order relating to payment or non-payment of money in compliance with the terms of decree under Order XX, rule 14, C. P. C. is not an appealable order. In this case learned Judge relying on the observations made in the case of Shah Wali v. Ghulam Din alias Gaman and another (P L D 1966 S C 983) held as under :- "It is plain that section 47, C. P. C. presupposes an executable decree and it is only then that the question relating to its execution, discharge and satisfaction can possibly arise. In the instant case, on the other hand, the decree in favour of the plaintiff-respondent was conditional and unless that condition was satisfied it remained inchoate. That being so, there could hardly be any question of its execution, discharge or satisfaction unless the condition precedent subject to which it was made was satisfied". It will, therefore, be seen that the learned Additional District Judge was justified in treating the appeal as revision. This being the position, this second appeal is incompetent and is liable to be dismissed on this short ground:

3. Even on merits the appellant has no case. In Ghulam Mohyuddin v. Muhammad Bakhsh and another (P L D 1979 Lah. 766) a Division Bench of this Court held that the alleged payment out of Court by Muhammad Bakhsh res pondent notwithstanding so-called certification was not in accordance with law and is of no avail to him. This was so held by answering the question whether payment out of Court in any form can be considered as lawful compliance with rule 14 of Order XX, C. P. C. in the negative. In the case in hand also the case of the appellant was that he paid the b amount mentioned in the decree out of Court and this payment was certified by the Court later on. Notwithstanding the certification mad by, the alleged payment as held by the Division Bench cannot be considered to be a payment made in accordance with law. As a result thereof the suit has to be taken to have been dismissed. Learned counsel for the appellant, however, argued that the appellant bad to make the payment out of Court as on 15th October, 1973 when he brought the money to make the necessary deposit he found that the Presiding Officer was on leave and as such he could not deposit the amount in Court and had to resort to the alternative course of making the payment to the vendee who also obliged by receiving the said amount out of Court. He argued that the appellant *should not be made to suffer in the circum stances explained above and in this situation the rule laid down in the case of Ghulam Mohyuddin would not be applicable. The plea now advanced is clearly an afterthought. Had the appellant brought the money to make the deposit in Court on 15th October, 1973 he would have submitted an application to that effect and obtained necessary ordeRs.The contents of the application have been noted in one of the paras above. These would show that in fact the application was made on a date subsequent to 15th October, 1973. Be that as it may, through this application the appellant sought certification of the payment allegedly made by him. The certification of the Court, dated 15th November, 1973 in view of the law laid down is ineffective and in these circumstances there is no alternative but to hold that the suit of the appellant stood dismissed.

4. For all these reasons this second appeal is dismissed with costs. M.B.A. Appeal dismissed.