P L D 1952 Baghdad﷓ul﷓Jadid 51 (PLP)

ABDUL HAMID MALIK, J.‑This appeal arises in the following circumstances :‑ Karim Bakhsh, the plaintiff‑respondent, brought a pre‑emption suit against the defendant appellant. The pre‑emption suit was eventually decreed in favour of the plaintiff by the learned Senior Sub‑Judge, Rahimyarkhan on 8th June, 1949. The plaintiff was ordered to deposit the purchase money in Court (Rs. 73) within fifteen days from the date of decree, in default the suit had to stand dismissed. Besides this the plaintiff was awarded Rs. 153‑12‑0 as costs of the suit. The plaintiff applied for the execution of the decree and prayed for the issue of warrants for possession. He also sued out execution for the amount awarded to him as costs of the suit. It was stated in the application for execution that the pre‑emption money had been paid out of the Court, to the defendant. The defendant took exceptions to the application for execution filed by the plaintiff and denied the receipt of purchase money. It was further pleaded by the defendant that the plaintiff had not complied with the terms of the decree inasmuch as he had not deposited the purchase money in Court. It was, accordingly, prayed that the application for execution was liable to rejection. The learned Senior Sub- Judge found force in the objections raised by the defendant and rejected the application for execution mainly on two grounds :‑

1. That the plaintiff was bound to deposit the pre‑emption price in the Court within fifteen days from the date of the decree and as he had made default therefore there was no compliance with terms of decree.

2. That the plaintiff could not set off the pre‑emption price (Rs. 73) against the costs payable to him. Besides the two points referred to above the learned Senior‑Sub‑Judge also alluded to an application alleged to have been presented by the plaintiff after the expiry of fifteen days from the date of decree praying for the extension of time for the deposit of purchase money. The learned Senior Sub‑Judge has stated in his order that the said application was rejected on the 18th July, 1949 and as no appeal was preferred against the rejection of that application, the plaintiff was not entitled in law to apply for the execution of the decree. Briefly speak ing the learned Senior Sub‑Judge was mainly influenced by the facts that the purchase money was not deposited in the Court and as there was a default on the part of the plaintiff, he had not complied with the decree and accordingly rejected the application for execution. Against this decision, the plaintiff preferred an appeal to the learned District Judge, Rahimyar khan who reversed the decree of the Court of first instance and allowed the application for execution. Being dissatisfied with‑the judgment of the learned District judge the defendant has now come in second appeal before this Court. Mr. Mustafa Khan, the learned counsel for the defendant -appellant contends that the learned District Judge was wrong in holding that the plaintiff was entitled in law to set off pre emption price against the costs of the suit awarded to him. He also urged that the perusal of the application for execution unmistakeably connoted that the plaintiff had obtained posses sion of the land, out of Court from the defendant, and his subsequent dispossession could not entitle him to ask for the issue of warrant for possession and that the only remedy left to him was to institute a fresh suit on the basis of his original possession. Lastly it was urged that the plaintiff, having failed to prefer an appeal against the order of the Court of first instance dated the 18th July 1949, rejecting his application for extension of time of purchase money, could not apply for execution of the decree in' question. I may say that the contention of the learned counsel to the effect that the plaintiff was not entitled to set off the pre emption price against the costs awarded to him is untenable in law. I may refer in this connection to 1938 All: 113 and 1922 Lah. 142, where it was held that a plaintiff is entitled to deduct the sum of money due to him for costs from the pre‑emption money. The same principle was reiterated in 1939 All.

228. It is therefore clear that the plaintiff was entitled to set off Rs. 73 against the costs payable to him. The record shows that he had to get Rs. 153‑12‑0 as costs. That being so, there was no sense in depositing Rs. 73 in the Court, because after deducting the pre‑emption money still Rs. 80‑12‑0 were due to him from the defendant as costs of the suit. Hence, as a matter of fact he has actually complied with the terms of the decree and legally he was not bound to deposit the purchase money. In my judgment, the decision of the learned District judge on this point is correct. Regarding the second point raised by the learned counsel for the defendant appellant, it may be mentioned that there is some indication in the application for execution of the plaintiff having obtained possession out of the Court, from the defen dant. However, in the end the plaintiff prayed for the issue of warrants of possession. The record shows that the defendant had denied the factum of possession and even in the High Court, on being questioned by me, straightway stated that he had never parted with the possession of the land, This denial on the part of defendant coupled with a prayer for issue of warrant for possession on the part of the plaintiff leads to the inevitable inference that the plaintiff never obtained possession of the land, out of Court, from the defendant. I also note that there is no finding on this point either by the Court of first instance or by the lower appellate Court. This point was for the first time taken in second appeal before me and considering that the defendant‑appellant himself does not admit having parted with the possession of the land, there seems to be no sense in labouring this point any further. Reliance in this connection was placed by the learned counsel on 1916 Mad. 1089, but in view of the fact that it has not been proved conclusively that the plaintiff got possession of the land, ruling in question is not to the point. Hence I attach no value to the contention of the learned counsel in this respect. Regarding the last contention of the learned counsel I may state that no such application, which is alleged to have been rejected on 18th July 1949, exists on the judicial record. In the absence of the original application, it would be clear injustice to presume the contents of the application against the plaintiff specially so when this contention was not raised before lower appellate Court. The counsel for the defendant -appellant wisely conceded that it was not proper to assume facts of the missing application against the plaintiff and there fore he did not press the point. I, therefore, find that none of the contentions raised by learned counsel has any force. I, accordingly dismiss this appeal with costs throughout. A. H. Appeal dismissed.