1998 PLP 974 (MLD)

MALIK MUHAMMAD QAYYUM, J.

This judgment shall dispose of First Appeal from Order No. 52 of 1996 and Civil Revision No. 3205 of 1996 in which the dispute involved is the same.

2. The necessary facts are that a suit for specific performance of an agreement to sell dated 15-2-1991 was filed by the respondents against the petitioner claiming that out of sale price of Rs. 8 lacs Rs. 2,50,000 have already been paid. The suit was decreed by the trial Court on 31-7-1993 and the respondents were directed to deposit Rs. 5,50,000 in Court within 2 months of the decree. This direction was duly complied with by the respondents/plaintiffs. The decree of the trial Court was challenged in Regular First Appeal No. 211 of 1993 before this Court which was pleased to suspend the operation of the decree on 18-10-1993 subject to notice. On 18-12-1993, this Court after hearing the parties confirmed the stay and observed that the respondents who had deposited the amount of Rs. 5,50,000 pursuant to the direction in the decree, may withdraw the said amount and a fresh order in that respect shall be passed at the time of disposal of the appeal. That appeal was dismissed by this Court on 18 12-1993 but unfortunately no order for deposit of the amount which had been withdrawn by the respondents was passed nor was any time fixed in that behalf.

3. On 20-5-1995, the respondents filed an application for execution of the decree. The Executing Court on 21-5-1995 directed that the balance of the sale price amounting to Rs. 5,50,000 be deposited. There is no dispute that this order was duly complied with and the amount was deposited within the period fixed by the Executing Court.

4. During the course of execution, the petitioner filed an objection petition alleging that the decree had become incapable of being executed as the respondents had not deposited the balance of sale price of consideration in terms of the decree. Simultaneously an application under section 35 of the Specific Relief Act, 1877 seeking recission of the agreement was also moved by the petitioner. Both these applications were dismissed by the Executing Court.

5. Raja Abdul Razzaq, learned counsel for the petitioner has contended that as the respondents had withdrawn the balance amount of sale price deposited by them pursuant to the decree of the trial Court and as such the suit stand dismissed and the decree could not be executed. In the alternative, it was urged by the learned counsel that in the absence of anytime having been fixed by this Court while disposing of Regular First Appeal No. 211 of 1993, the respondents were obliged to make the deposit within reasonable time and the deposit made on 8-6-1995 cannot be considered to be valid. In the same context, it was submitted that the order passed by the Executing Court on 21-5-1995 allowing the deposit within one month was not legal and valid.

6. We are not impressed by these contentions of the learned counsel. As already mentioned above, the decree passed by the trial Court required the respondents to make the deposit of Rs. 5,50,000 as the balance amount of consideration within one month of the date of decree. Admittedly, this amount was deposited within the specified period by the respondents and, as such, the decree stood fully complied with. Subsequently, the deposit was withdrawn during the pendency of Regular First Appeal No. 211 of 1993 with the permission of this Court granted by the Division Bench on 18-12-1993. Though it was observed at that time a fresh order about the re-deposit of the amount would be passed at the time of final decision of the appeal but unfortunately it was not done due to an oversight for which the respondents cannot be blamed. The question of non-compliance of the decree on the part of the decree-holder, therefore, does not arise. On the other hand, the deposit having been made within the prescribed period fixed in the decree, the same stood complied with. In the absence of any order passed by this Court while disposing of Regular First Appeal No. 211, of 1993 or its non-compliance, no fault can be found with the conduct of the respondents.

7. It is also to be seen that admittedly it was the respondents who had gone to the Executing Court and asked for permission to deposit the amount which they had withdrawn pursuant to the interim order passed by the Division Bench of this Court. They were allowed one month time to make the deposit by the Executing Court which was duly complied with. The learned counsel for the petitioner, however, contended that with the disposal of the suit the trial Court had become functus officio and as such the time for making the deposit of the balance amount of consideration could not be extended. In this behalf he has relied upon the case of Shah Wali v. Ghulam Din alias Gaman and another (PLD 1996 SC 983).

8. This contention of the learned counsel is misconceived inasmuch as admittedly, in the present case, within the time fixed by the Court in the decree the respondents had made the deposit and the decree, as such, stood complied with. It was subsequently under an interim order passed by this Court on 18-12-1993 in Regular First Appeal No. 211 of 1993 that the amount was withdrawn. As the appellate Court while disposing of the appeal had failed to pass any order for re-deposit of the amount it was open to the Executing Court to allow the deposit which was essential for the purpose of executing the decree.

9. The case relied upon by the learned counsel is clearly distinguishable. Even otherwise, the reliance on the above cited case is mis-placed for, the dispute in that case arose out of a suit for possession through pre-emption which was decided on the basis of Order 20, rule 14 of the Code of Civil Procedure which requires the Court to specify a date by which the deposit of the sale price is to be made failing which the suit was to stand dismissed. However, the position of a decree for specific performance is wholly different as there is nothing either in the Code of Civil Procedure or in the Specific Relief Act which obliges the Court to fix the time for deposit of the consideration. There is ample', authority for the proposition that even after passing the decree for specific performance, the Court retains the power to extend time. (See M/s Lal Shahbaz Nagar Association v. M/s Democrat Construction Ltd., and others (1995 CLC 474), Nizam ud Din and others v. Ch. Muhammad Saeed and others (1987 CLC 1682) and Ashraf Ali alias Asrafud Din Mondal and another v. Bayla Hasda and others (PLD 1967 Dacca 557)).

10. Section 35 of the Specific Relief Act, 1877 provides that if the decree for specific performance is not complied with, the Court can rescind the contract for sale. That appears to be the only course which the law has specifically prescribed in the event of non-deposit of the sale price under the decree. Consequently, if before recission, the decree is complied with by the decree- holder the question of recission of the contract could not arise

11. The last contention raised by the learned counsel for the petitioner was that even if no time was fixed by the appellate Court for re-deposit of the amount it should have been done within a reasonable time.

12. This contention is again not well founded. Regular First Appeal No. 211 of 1993 was dismissed by this Court on 11-4-1995 and the application for execution was filed after about one month on 20-5-1995. It cannot, therefore, be said that there was any unreasonable delay on the part of the respondents in approaching the Executing Court.

13. The learned counsel for the petitioner submitted that the deposit should have been made immediately. In this behalf he cited the case of M/s Ansari Brothers v. Holy Trinity Church Trust (PLD 1971 SC 700). The case relied upon by the learned counsel is not applicable to the facts of the present case. In that case, the tenant was required to deposit the amount within the specified period but he did not do so and instead obtained stay order from the appellate Court. It was held that even if no time was fixed by the appellate Court for re-deposit of the amount, the tenant should have deposited the same within a reasonable time which would be the period which was available excluding the time during which the stay operated. In the present case, no such question arises as admittedly within the time fixed by the trial Court in the decree the deposit had been made by the respondents and the decree stood complied with. The respondents did not seek any stay of the execution of the decree. On the other hand, it was the petitioner who had challenged the decree and obtained stay of execution, as a consequence of which the respondents were permitted to withdraw the amount. No fault can, therefore, be found with the conduct of the respondents.

14. In the end it may be mentioned that the whole difficulty in the present case has arisen on account of an inadvertent error on the part of the appellate Court for not passing an order for re-deposit of the amount within the specified time, although it was specifically observed in the interim order dated 18-12-1993 that a fresh direction in that behalf shall be given. It is axiomatic that an act or omission of the Court cannot prejudice any one. The proposition is too well- settled to need any authority but reference may be made to Muhammad Hanif and others v. Muhammad and others (PLD 1990 SC 859), Sherin and others v. Fazal Muhammad and others (1995 SCMR 584) and The State v. Asif Adil and others (1997 SCMR 209). For the foregoing reasons, both Civil Revision No. 3205 of 1996 and First Appeal from Order No. 52 of 1996 are dismissed with no order as to costs. A.A.F-47/L Order accordingly.