1989SCMR497 (PLP)

NASIM HASAN SHAH, J.‑‑Respondents Nos.2 to 8 filed a suit for possession by way of pre‑emption against the petitioner which was decreed on 28‑11‑1984. The pre‑emptors were directed to deposit the decretal amount by 10th January, 1985, otherwise the suit would stand dismissed. The pre‑emption decree was challenged by the vendee (petitioner herein) and the learned Appellate Court vide order dated 5‑12‑1981 admitted the appeal and suspended the operation of the judgment and decree of the Trial Court. The appeal, however, ultimately failed and was dismissed on 17‑12‑1985 The pre‑emptors thereafter, on 7‑1‑1986, applied to the Trial Court for permission to deposit the pre‑emption amount but this request was rejected by the trial Court vide order dated 12‑1‑1986 on the ground that the Appellate Court had not passed any specific order suspending the deposit of the decretal amount and the deposit could not be made at this late stage. The pre‑emptors filed an appeal against the said order which was accepted by the learned Additional District Judge who was of the opinion that‑‑ "The petitioner (respondent herein) could deposit the amount within reasonable time which shall mean the period left out after deducting the period during which order of suspension remained in force. I may elaborate it like this. The petitioner had been directed vide decree dated 28‑11‑1984 to deposit the amount upto 10‑1‑1985 which would mean that he had been given 43 days time for the purpose. Anyhow the said order was suspended in operation on 5‑12‑1984 and the same lapsed with the dismissal of the appeal on 17‑12‑1985. By the time the appeal was dismissed the petitioners had wasted six days. This time shall have to be excluded from the time originally fixed for the payment of the sale price. Naturally 37 days were at the disposal of the petitioners to make payment but he approached the learned trial Court on 7‑1‑1986 for the deposit of the amount meaning thereby that he again wasted 20 days out of the time left for him after disposal of the appeal. Evidently 17 days were still at his disposal for the deposit of the amount and I feel that the learned Civil Judge should have allowed him to deposit the amount but he illegally withheld the permission." The High Court has endorsed this view by dismissing the writ petition directed against the aforesaid judgment. Hence this petition for leave. Mr. Khalid Farooq Qureshi has drawn ‑"our attention to this Court's judgment in Bhai Khan v. Allah Bakhsh and another (1986 S C M R 849) wherein it has been observed that reasonable time can be granted by the Appellate Court for making the deposit of the pre‑emption amount after dismissing the appeal directed against the pre‑emption decree. The contention, however, inter alia, is that the Court which is competent to grant the extension is the Appellate Court which disposes of the appeal and not the executing Court, before whom the request for extension was made in the present case. This submission finds some support from the judgment, aforecited. Leave granted. Security Rs.2,

500. The appeal shall be made ready on the present record with liberty to the parties to file additional documents, if any and put up for hearing at an early date. Interim order of status quo is confirmed. AA./B‑79/S Leave to appeal granted.