P L D 2006 Lahore 35 (PLP)

MUHAMMAD SAYEED AKHTAR, J.

The facts giving rise to this petition are that Muhammad Sharif, defendant/respondent No.1 purchased land measuring 10 marlas vide registered sale-deed dated 16-8-1984 from the plaintiff/petitioner. The plaintiff/petitioner, (now the decree-holder) filed a suit on 23-7-1985 pre-empting the sale. The defendant/respondent No. 1 (vendee) made an offer that if the pre-emptor paid a sum of Rs.44,400 to him, he would have no objection if the suit is decreed against him. The offer was accepted by the plaintiff/petitioner and suit was decreed on 3-11-1985 with the direction to deposit the remaining purchase price before 23-12-1985. On 22-12-1985, the petitioner moved for issuance of challan to deposit the decretal amount. The said challan was issued at 11.00 a.m., the respondent was not able to deposit the decretal amount on 22-12-1985 owing to closure of the Bank and the same was deposited on 23-12-1985. The petitioner/decree holder moved an application on 13-01-1986 under sections 151, 152 & 153, C.P.C. for correction of the judgment stating that under Order XX, Rule 14 C.P.C., no order could be passed for depositing the decretal amount before 23-12-1985, it should have been "on or before" 23-12-1985. The said application 'was dismissed by the learned trial Court on 23-2-1986. This order was assailed in revision petition before the Revisional Court. The learned Additional District Judge vide order dated 17-7-1986 allowed the revision petition with the direction to the learned trial Court to amend the decree accordingly. The revisional order dated 17-7-1986 was challenged in W.P.No.4570-1986, which was allowed on 4-2-1998 with the consent of the parties and case was remanded to the learned trial Court for decision afresh in the light of rule enunciated in "Fateh Khan v. Bozmir" (PLD 1991 SC 782). The respondents being aggrieved filed CPLA No.563-1998 before the Honourable Supreme Court, which was disposed of with the following observations- "We are also of the view that the question of applicability or otherwise of the rule laid down in Fateh Khan's case (supra) should have been left to be decided by the Executing Court." The petitioner/decree-holder filed execution petition before the learned Executing Court on 25-2-1998, which was accepted on 29-10-1998. The respondents being aggrieved filed revision petition before the Revisional Court, which was allowed vide order dated 17-1-1999 and order of the learned Executing Court was set aside with the direction to proceed with execution petition in the light of observation made in the order.

2. The learned counsel for the petitioner contended that the learned Revisional Court has mis-interpreted the judgment of Honourable Supreme Court in "Fateh Khan's case". He further urged that execution petition filed by the petitioner, was not barred by time. This Court vide order dated 15-10-1986 had suspended the operation of revisional order dated 17-7-1986.

3. Conversely, the learned counsel for the respondents submitted that Court below has rightly allowed the revision petition. The rule laid down in "Fateh Khan's case" supra was not applicable to the instant case as the same did not apply to the "past and closed transaction". He urged that execution petition was filed on 25-2-1998 and the same was bared by time. He further argued that the Court has no jurisdiction to extend the time in a consent decree. In support of his contention, he relied upon the following judgments: - "Saat Malook v. Rozi Khan" (1979 SCMR 593) "Syed Ahmad Shah and others. v. Muhammad Yar and others" (1974 SCMR 191). "Mushtaq and others v. Rabian Bibi and others" (1985 SCMR 1719).

4. Arguments heard and record perused.

5. The learned Additional District Judge, Sialkot erroneously came to the conclusion that rule in "Fateh Khan's case" was inapplicable to the instant case. The Honorable Supreme Court laid down following rule:- "In our view, the Court has no option under Order XX, Rule 14(1)(a) to direct the pre-emptor but to deposit the amount A "on or before" a day specified by the Court. A direction for payment of money in a pre-emption suit under Order XX, Rule 14(1)(a) is mandatory and the order should specify a date as contemplated in this rule. In case of failure of the Court, a successful pre-emptor cannot be penalized as no party has to suffer on account of an act of the Court." It is thus clear that the Court could not be allowed to exercise the direction in either of the two ways. The august Court, however, observed that this judgment will have no effect on the "past and closed transaction". In my view by filing an application under sections 151,152 & 153 C.P.C. for correcting the decree, the matter became sub judice. The revisional order dated 17-7-1986 passed in favour of the petitioner B was suspended by this Court vide order dated 15-10-1986 passed in W.P. No.4570-1986. In the circumstances, there was no occasion to file execution petition as such question of limitation would not arise. In the earlier W.P. No. 4570-1986 this Court has made following . observations :-- "The learned Executing Court, if so moved, will determine this B question in the light of points raised by the parties and in the light of rule laid down in "Fateh Khan's case (PLD 1991 SC 782) and according to law.".

6. As far as contention of learned counsel for the respondent that the Court has no jurisdiction to enlarge the time fixed by the parties, I have gone through the record. The statement made by the respondent reveals that no date had been fixed by the defendant/respondent for depositing Rs.44,

400. It was only stated that he had no objection, if the c suit is decreed upon payment of Rs.44,

400. It was the Court which fixed the date for payment of decretal amount, which was clearly against the mandate of Order XX, Rule 14(1)(a), C.P.C. The judgments relied upon by the learned counsel for the petitioner., are distinguishable on facts of this case. In the said cases, in the compromise, date has been fixed by the parties, which is not the position in the instant case. In view of above discussion, this writ petition is allowed and impugned order dated 17-1-1999 is declared without lawful authority and of no legal effect, the order passed by the learned Executing Court dated 29-10-1998 is upheld. MAW/5-472/L??????????????????????????????????????????????????????????????????????????????????? Petition allowed.