1992 PLP 244 (MLD)

(2) In the case of an appeal, the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1); (3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs; (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be; (5)(a) If the plaintiff withdraws any amount deposited in the aforesaid manner his suit or appeal shall be dismissed; (b) If any security furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed." The above provision of law stems out two very important points relevant at the moment, i.e. (a) It relates to the security to be furnished by the pre‑emptor for discharge of costs; and (b) It operates either at pre‑decretal stage, or, when the matter is taken in appeal by the plaintiff‑pre‑emptor.

7. The case in hand is that pre‑emptor has successfully obtained the decree from the trial Court and has been able to sustain it throughout. The amount deposited by him in terms of decree remained with the Court throughout, though under law, the security was required to be with the Court during the suit proceedings only, not during the series of appeals that too, not filed by the pre‑emptor‑plaintiff. Security during the period of appeal is required in case the appeal is filed by the plaintiff pre‑emptor, and that too, if ordered by the appellate Court (in case he is unsuccessful in obtaining the decree from the trial Court). In the instant case, the appeal was filed by the vendee, not by the plaintiff‑pre‑emptor. The purpose of the security is only to guarantee or secure the payment of costs of the other side and to avoid fictitious and vexatious pre‑emption claims. The case in hand is altogether different. The appellant in this case has successfully protected decree in his favour throughout and is still pursuing it. He has never been ordered by any appellate Court to file the security or to keep the security already deposited, with the Court. Moreover, none of the Courts has burdened him with the costs, for which security is required under law. Hence the penal provisions of section 21(5) (a) do not apply in this case. I'm supported in holding this view by AIR 1924 Lah. 68, which has almost identical facts, except that the amount in the case was withdrawn with the permission of the Court which was seized with the appeal. An objection was taken to the decree in favour of the pre‑emptor decree‑holder on the ground that the withdrawal of sum entails the dismissal of the pre‑emptor's claim under provisions of clause (a) of subsection (5) of section 22 of the Pre‑emption Act, 1913 (which is identical to section 21 in the case in hand). It was held that: "We are satisfied, however, that the objection must be repelled. In the first place the pre‑emptors are not the appellants in the case. In the second place the word `so' in the clause cannot be ignored. The word refers to the preceding section and in the case of an appeal obviously relates to action taken by an appellate Court under subsection (2). In the present case there is no order by this Court under that subsection. In the third place it is dear that the object of an order under section 22(1) is to guarantee vendees against frivolous proceedings on the part of possible pre‑emptors. The deposit is a token of good faith and once the pre‑emptor has obtained a decree, the need for a deposit no longer exists so far as the trial Court is concerned. No doubt such deposits are available for the discharge of costs (Section 22 (3)) but such satisfaction is not the raison d'etre of the deposit and there is nothing to suggest that a vendee appellant is entitled to any advantage of the kind. We have no hesitation therefore, in holding that section 22(5) (a) does not apply to the present appeal." The view quoted above is followed in PLD 1975 Lah. 524 and it is held that: "Moreover, the observations are applicable only when the plaintiff pre‑emptor is the appellant and he withdraws the money. In such an event, the suit or the appeal, as the case may be, has to be dismissed under the said clause, but if the plaintiff who is the successful pre emptor is a respondent in an appeal the question of dismissal of the appeal does not arise. If there had been any intention on the part of the Legislature to make the withdrawal of the pre‑emption money on the part of the respondent‑pre‑emptor militate against him, it could do so by providing in subsection (5) (a) of section 22 that "if any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be. dismissed, and if he is a respondent in an appeal, the appeal shall be accepted". Therefore, in the absence of any provision to that effect, it cannot be said that if the plaintiff‑respondent withdraws the amount, the appeal should be accepted." I further find support from PLD 1980 Peshawar 262 referred to by the learned counsel for the appellant. It is held that: "In this case the order of deposit had been made by the trial Court and if the pre‑emption amount had been withdrawn during the pendency of the suit only then the provision of subsection (5) (a) to section 2'1 could have been pressed into service. From the plain reading of the above subsection, the conclusion that can be drawn is that the penal operation of subsection (5)(a) to section 23 is only attracted when the plaintiff‑pre‑emptor withdraws that amount during the pendency of his suit or appeal, as the case may be which he had deposited under subsection (1) of subsection (2) to section 23 and unless in a case such a situation is available this provision will not be applicable. In this case fortunately the plaintiff‑pre‑emptor had withdrawn the pre‑emption oney when his appeal was pending in the High Court and since these was no order by this Court for the deposit of the pre‑emption amount no violation of the order of the High Court has taken place, therefore, the penal provision of subsection (5)(a) ibid is not attracted to this case. Furthermore, it appears that the attention of the learned Judge in Chambers was not invited to the principles underlying the deposit of the pre‑emption money. This deposit is secured only for the discharge of costs (subsection (3) to section 23) and to protect the vendees from frivolous litigations."

8. The cases referred to by the learned counsel for the respondent are distinguishable and are not applicable in the case before the Court.

9. Section 21 of the Right of Prior Purchase Act, deals with the amount of security for discharge of costs, while mode of payment of decretal amount, its deposit and the consequences of its non‑compliance are regulated by Order 20, Rule 14, C.P.C. relevant for the purpose is reproduced as: "14(1) Decree in pre‑emption suit. Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court the decree shall: (a) specify a day on or before which the purchase‑money shall be so paid; and (b) direct that on payment into Court of such purchase‑money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs." The last date, as mentioned somewhere above, for deposit of decretal amount by the pre‑emptor was 29th February, 1984, who in compliance with the decree deposited the amount on 27th February, 1984, when it was rightly recorded in the decree sheet by the Sub‑Judge that "Decree in favour of plaintiff Pre-emptor and against the defendant‑ (Vendee) becomes final". The trial Court after declaring the decree to have become final, became functus officio. The Court had no authority to allow the appellant (Decree‑Holder) or his attorney (whose power of attorney is also not produced before the Court) to withdraw the amount. Moreover, the decree of the trial Court had merged into the decree of appellate Courts. The title in the suit land had passed to the plaintiff decree‑holder in terms of Order 20, Rule 14(1)(b), C.P.C. and title to the decretal amount reciprocally passed to the Judgment‑Debtor‑Vendee, on the finality of decree. The amount remains in trust for the Judgment‑Debtor when decree in the pre‑emption suit becomes final. The Court could not order payment of amount in favour of pre‑emptor or his attorney as it stood decreed in favour of the Judgment‑Debtor in lieu of the suit land. That is why there is no legal provision containing a penalty for withdrawal of decretal amount, as it could never be visualized that fault of paying the decretal amount (after finality of decree) can ever be committed by a Court. In the absence of a penal provision, the pre‑emptor‑Decree‑Holder cannot be deprived of the fruits of its legal victory, for fault of the Court. This round of litigation has started simply due to overstepping of its powers by the Sub‑Judge by passing the void order and it cannot prejudice the successful pre‑emptor‑Decree‑Holder.

10. As a result, the appeal is accepted, the orders and decree under appeal are set aside and in exercise of power vested in the Court under section 46 of the Interim Constitution Act, 1974, section 35 of the Courts and Laws Code Act and section 151, C.P.C., it is ordered that the decree passed in favour of appellant dated 29‑12‑1983, shall remain operative and the appellant shall deposit the decretal amount within sixty (60) days from the date of this judgment, in the trial Court, failing which the decree shall stand cancelled. In I the circumstances of the case, no order as to costs. AA./494/H.CA. Appeal accepted.