1979 PLP 154 (SCMR)

KARAM ELAHEE CHAUHAN, J.‑Muhammad Hayat (vendor) sold the land in dispute measuring 23 kanals and 4 marlas to (i) Muhammad Amir, (ii) Abdul Rahim and (iii!) Abdul Wahid (vendees). Three sets 'of persons filed three separate suits for pre‑empting the aforesaid sale on the ground of relationship with the vendor. First suit was filed by Mst. Ghulam Kubra and others; the second suit was filed by Mst. Zubeda Bibi and others; and the third suit was filed by Manzoor Alim and Muhammad Nazir (present petitioners). The pre‑emptors in the first suit fell in the category of "sharers" and were eligible to inherit 89/96 shares in the estate of the vendor at the relevant time. The pre‑emptors in the second suit were also "sharers" and were eligible to inherit 7/96 shares. The pre‑emptors in the third suit namely the present petitioners were however distant collaterals of the vendor. All the three suits were consolidated under provision of section 28 of the Punjab Pre‑emption Act I of 1913 arid were jointly decreed by the learned Civil Judge by means of his judgment and decree dated 12‑6‑1969 wherein he gave the order and extent of their preference. The High Court in paragraph 1 of its impugned judgment refers to the contents of that decree in the following terms. (In the following passage Mst. Kubra and others) (plaintiffs in the first suit) was referred to as appellants and the present petitioners as respondents):‑ "The preferential right of Mst. Kubra and others and that of Mst. Zubeda Bibi was equal, therefore, the learned trial Court directed that the appellants Mst. Kubra and others and Mst. Zubeda Bibi were to pay Rs. 12,000 in the proportion of 89/96 and 7(97 respectively on or before 15‑7‑1969. Accordingly the appellants were to pay Rs. 11/125 whereas Mst. Zubeda Bibi was liable to pay Rs.875. Because of the fact that Asst. Zubeda had already paid a sum of Rs. 2,400 as 1/5th amount and she was to pay Rs. 875 only, no date was specified for her to pay the decretal amount. However, there was a condition imposed on her that if she withdrew the entire 1/5th amount before 15th of July 1969, this balance of Rs. 875 were to be paid by the appellants on or before 31‑7‑1969. It was further directed that in case the appellants did not deposit their share by the due date and that of Mst. Zubeda Bibi by 31‑7‑1969 the entire suit of the appellants would stand dismissed. So far as the suit of Manzoor Aleem, etc. was concerned, the Court decreed that on failure of the appellants to deposit the entire amount above mentioned by 31‑7‑1969, this amount, i.e. Rs. 12,000 shall be paid by Manzoor Alim etc. on or before 4‑9‑1969."

2. The petitioners applied for the execution of the decree on 27‑9‑1969 which was dismissed by the learned Executing Court on the same day with a finding that the decree in their favour was to be given effect to only if the first and second sets of pre‑emptors did not comply with the terms of the decree in their favour but as Mst. Kubra had duly complied with the terms of the decree therefore; the petitioners had no right for the execution of the decree.

3. The petitioners filed an appeal which was accepted by the learned Additional District Judge on 16‑4‑1970. The learned Additional District Judge took the view that the first set of pre‑emptors did not comply with the terms of the decree and therefore the petitioners had a right to execute the decree in their favour.

4. Mst. Kubra, etc. (the first set of pre‑emptors) filed a second appeal being R. S. A. No. 444 of 1970 which was accepted by a learned Single Judge of the‑ Lahore High Court on 28‑4‑1975, whereby the order passed by the learned Additional District Judge dated 16‑4‑1970 was set aside and the order of the learned executing Court was restored. The learned Single Judge was of the view that as the earlier (or to be more precise) the first set of pre‑emptors had duly fulfilled the terms of the decree in their favour the turn of the petitioners to get their decree executed did not arise. The petitioners have come up in a petition for special leave to appeal against the same to this Court.

5. Learned counsel has argued that Mst. Kubra (the first set of pre emptors) had not deposited the full decretal amount in time, therefore, their decree became ineffective with the result that now only the decree in favour of the petitioners alone remained executable. The contention has no merit. The learned Single Judge has attended to this fact in detail. He has observed that an amount of Rs. 11,125 was paid by Mst. Kubra, etc. on 15‑7‑1969 and the balance of the amount of Rs. 875 was already lying in Court "with the result that full amount in the aforesaid manner stood paid". Learned counsel has not been able to point out any mistake in the aforesaid, factual finding of the learned Single Judge. The first pre‑emptors thus having deposited the requisite decreta amount, the terms of the decree stood complied with and there was no occasion for the present petitioners, to come forward for execution of their own decree which as already mentioned above was to become operative only if the prior sets of the pre‑emptors did not comply with the terms of their respective decree.

6. When confronted with the above situation learned counsel argued that Mst. Zubeda Bibi (the second set of pre‑emptors) had taken back an amount of Rs. 875 after 15‑7‑1969 which was the date fixed for that purpose, he submitted that the effect of that withdrawal was that the said amount should have been deposited afresh and independently by Mst. Kubra, etc. before 31‑7‑1969 but as that was not done therefore the terms of the decree of Mst. Kubra could not be said to have been complied with. The plea has no merit. The aforesaid amount of Rs. 875 was to be adjusted, towards the amount to be paid by Mst Kubra, etc. in case Mst. Zubeda Bibi, etc. did not withdraw the same before 15‑7‑1969. As Mst. Zubeda did not withdraw that amount before the aforesaid date therefore the same was automatically adjusted towards the amount to be paid by Mst. Kubra. The aforesaid amount having thus automatically become then amount of the vendees, if later on Mst. Zubeda Bibi was allowed to take the same back; it could not effect the decree of Mst. Kubra for the g entire property. The learned Single Judge in the circumstances above explained was justified in holding that the withdrawal of that amount was a dispute between the vendees and Mst. Zubeda Bibi, etc. and the same could not be made as a ground for diminishing rights of Asst. Kubra or improving the position of the present petitioners. Learned counsel has not raised any question of substantial nature or any fundamental point of law warranting interference by this Court. The petition has no merit and is dismissed. Petition dismissed.