P L D 1952 Peshawar 6 (PLP)

MUHAMMAD SHAFI, J.‑Khasra No. 522 Min, which has now been allotted Khasra No. 681 and measures 3 kanals. 13 marlas, was the property of several persons, including one Muhammad Yusaf Khan, son of Faiz Talab Khan. Ghaffar Shah, son of Muzaffar Shah, was its occupancy‑tenant. He sold his rights in the above land in favour of Sher Muhammad Shah in 1943. Walayat Shah pre‑empted this sale‑and obtained a decree on 1st March 1945. Subsequently Muhammad Yusaf Khan exercised his option granted to him by section 60 of the Punjab Tenancy Act, and had the original sale of the occupancy rights declared void. Ghaffar Shah has now instituted a suit for the possession of the above land, on the ground that the sale of the occupancy rights by him in favour of Sher Muhammad Shah having been declared void, the pre emption decree ipso facto became inoperative, and he for the matter of that was entitled to get back the possession of the property from Walayat Shah. This suit was heard by Khan Abdul Hakim Khan Sub‑judge, 2nd Class, Abtottabad, who by his order dated 15th October 1947 granted the plaintiff the following relief :‑ "In view of the foregoing discussion I grant the plaintiff a decree for the possession of the suit land against defendants 1 and 2 on payment of Rs.

400. The money must be paid within two moths to defendant No. 1, failing which the decree will become inoperative, The plaintiff is directed that if he files execution application before 2 months then it must be accompanied by the tender of Rs. 400/. There was an appeal against the above decree, which w dismissed on 9th September, 1948. On 1st October 1948, Ghaffar Shah made an application for the execution of the decree, and on the same day he deposited in Court the sum of Rs. 400,. The deposit of this amount as would be obvious was beyond two months of the trial Courts decree, but was within two months of that of the appellate Court. An objection was taken that since the amount had not been deposited within two months of the trial Court's decree, the decree had become inoperative and it, executable. The executing Court decided that the deposit having beers made within two months of the appellate Court's decree, was good in law, and the execution was, therefore, competent, anti that as a consequence thereof the plaintiff was entitled to got the possession of the suit‑land. An appeal against the above order was dismissed. Walayat Shah has come up on revision to this Court. No provision of law has been brought to our notice under which Mr. Abdul Hakim Khan while granting a decree for the possession of the suit land in favour of the plaintiff on 15th October 1947 could order him to deposit the amount within two months, and further order that failing the deposit the decree would become inoperative. The learned trial judge by fixing the time of two months during which the amount way, to he deposited in Court seem to have mistaken the suit as being that of redemption or pre‑emption suit. In both these cases there is a provision of law which entitles the Courts to fix the period during which the amount found by the Court has to be deposited. In suits for possession the Civil Court are not authorized to fix such period. Once a decree for possession of a certain property is granted, Article 182 of the Limitation Act comes into play, which provides a period of three years from the date of the decree or order for taking out the execution of that decree or order. No Court has got the jurisdiction to limit this period by fixing in a decree or order a shorter period than the one prescribed by the above Article. We consequently hold that Mr. Abdul Hakim Khan had no jurisdiction to pass a conditional decree that it would be operative only if the amount of Rs. 400 was paid within two months of the decree. This condition, therefore, being illegal. shall have to be completely ignored. Taking this view, the decree‑holder had every right to take out the execution at any time within three years of the decree, with the only condition attached to it that it would not be executed until the amount of Rs. 400/‑ was paid in Court. The execution application of the decree‑holder was clearly within three years of the decree, and hence it was within time. Apart from that, even conceding that the decree granted by Abdul Hakim Khan was perfectly in order, still we think that the time during which Rs. 400 were to be deposited was to be reckoned not from the date of the trial Court's decree, but from that of the Appellate Court. In the trial Court's decree it was specifically mentioned that Rs. 400 were to be paid "within two months." Although it is not specifically mentioned as to from which date was this time to commence, yet it is reason ably clear that it was to begin within two months of the trial Court's decree. On appeal when the learned appellate Court affirmed the trial Court's decree, and framed its own decree sheet, then the former ceased to exist and completely got merged in the latter. Two months from the date of the decree would thus automatically mean two months from the date of the appellate Court's decree. This view of ours finds support from a Privy Council authority reported as I L R, 23 All: page 152 (Bhup Indar Bahadur Singh v. Bijai Bahadur Singh). In that case the District Court in its decree dated 12th November 1887, had awarded to the plaintiff future rnesne profits. This decree was reversed by the High Court, but was ultimately confirmed by Their Lordships of the Privy Council by order dated 11th May 1895. In execution of the decree relating to the mesne profits the executing Court ordered that they should be recovered from 12th November 1887 to 12th November 1890, that being for three wears from the date of the decree. Their Lordships held that the order of the Queen in Council of the 11th of May 1895 was the only operative decree, and that mesne profits were in effect decreed by the order with reference to its own date, and neat to that of the original decree of the 12th November 1887 : the period for which mesne profits were due was from the institution of the suit on the 23rd September 1886 down to the 30th November 1895, when possession was delivered. On the same analogy we think that in the case before us too the period fixed in the decree must be read with reference to the date of the appellate Court's order, and not to that of the trial Court, which ceased to exist. The result is that we do not find any force in this revision petition, which is hereby dismissed with cost. Counsel's fee Rs.

25. MUHAMMAD IBRAHIM, J. C.‑I agree. K. M. A. Revision accepted.