P L D 1966 Supreme Court 983 (PLP)

S. A. RAHMAN, J.‑This appeal, by special Leave, arises out of a suit brought by the first respondent, Ghulam Din to pre‑empt the sale of 6 kanals and 4 marlas of agricultural land, situate in village Jada, Tehsil and District Jhelum, to the appellant, Shah Wali. The suit was decreed by the trial Judge on the 21st of February 1961, and a decree granted to the plaintiff‑respondent, subject to the condition that he deposited in Court, on or, before the 21st March 1961, the sum of Rs. 3,000 on account of pre‑emption money, including the 1/5th, already deposited by him under section 22 of the Punjab Pre‑emption Act. Failing completion of this deposit by the due date, the suit was directed to stand dismissed with costs. ?An appeal was taken to the Court of the District Judge by the vendee‑appellant and as a result, the pre‑emption money was enhanced to Rs. 8,000, which was directed to be deposited within one month of the appellate decree, dated the 30th March 1962. The plaintiff‑respondent went up in second appeal to the High Court of West Pakistan, but his appeal which was treated as a revision owing to an amendment of the relevant law, was dismissed in limine on the 9th of October 1962. ?The first respondent had deposited 1/5th, of the pre‑emption money, namely, Rs. 1,600 on the 31st of March 1960. He deposited a further sum of Rs. 1,400 on the 7th March 1961, in pursuance of the decree, passed by the trial Judge. On the 18th of April 1962, in purported implementation of the decree of the District Judge, he made a further deposit of Rs. 4,076.25. In all, therefore, he made a deposit of Rs. 7,076.25. The plaintiff‑respondent held a mortgage over the suit land, to the extent of Rs. 800, which he was entitled to deduct out of the money to be deposited by him. But taking that fact into account, the deposit still fell short of the pre‑emption money, as fixed by the appellate Court, by Rs. 123.75. On the 22nd of May 1962, the appellant, Shah Wali, brought it to the notice of the trial Judge by a written application than on account of the short‑fall in the deposit of the pre‑emption money, the suit of the plaintiff stood dismissed with effect from the 30th April 1962. He prayed that costs may be paid to bin put of the pre‑emption money, deposited in Court. . The trial judge agrees with the contention raised and ordered that Rs. 5 be paid as costs to the appellant, out of the moneys deposited by the plaintiff in Court. A cheque for Rs. 5 was, consequently, issued in favour of the appellant on the 22nd June 1962. The plaintiff‑respondent applied for extension of time to make up the deficiency in the pre‑emption money, to the trial Judge, relying on sections 47, 48 and 49 of the Code of Civil Procedure. On an objection being taken by the appellant that the Court had no jurisdiction to extend the time, in terms of the appellate decree passed, the learned trial Judge dismissed the plaintiff‑respondent's application, by order, dated the 31st January 1963. The plaintiff‑respondent's appeal, however, was allowed by the District Judge, Jhelum, who, by order, dated the 18th April 1963, held that the suit of the plaintiff did not stand dismissed and further directed the balance of Rs. 123.75 to be deposited on or before the 2nd of May 1963. Shah Wali challenged this order by a revision petition, presented to the High Court of West Pakistan. As a result of the repeal of the West Pakistan Ordinance XLIV of 1962, it is stated, this was to be treated as a Regular Second Appeal. The learned Chief Justice of the West Pakistan High Court dismissed the petition by order, dated the 5th of September 1963. Special leave to appeal was granted by this Court, as it was contended that there was a conflict of decisions in the High Court as to whether extension of time could be granted to a successful pre‑emptor, on appeal, against an order of refusal to extend the time, when the original decree was not under appeal. The form of decree to be drawn up in pre‑emption suits is laid down in rule 14 of Order XX of the First Schedule to the Code of Civil Procedure. Sub‑rule (1) of this rule is relevant and is reproduced below:‑ "Where the Court decree 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 cots (if any) are not so paid, the suit shall be dismissed with costs." Section 22 of the Punjab Pre‑emption Act, 1913, enacts as follows: "22 (1) In every suit for pre‑emption the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one‑fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court, for the payment, if required, of a sum not exceeding such probable value, within such time as the Court may fix in such order. (2) In any 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 allow, to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so 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. (6) The estimate of the probable value made for the purpose of subsection (1) shall not affect any decision subsequently come to as to what is the market value of the land or property." It appears that this section is intended to safeguard vendees against frivolous proceedings on the part of possible pre‑emption The deposit seems to be insisted upon as a token of good faith of the pre‑emptor and one‑fifth of the pre‑emption money, either in cash or in the shape of security, is to remain in Court pending the proceedings. Insistence on strictness in the observation of this provision in the law, is a significant pointer to the policy of the law of pre‑emption. The learned District Judge held that an appeal did lie to him from the order‑of the trial Judge refusing to grant extension of time to the plaintiff. He did not discuss the relevant law on this point, but from the fact that no argument had been addressed to him on the point, he inferred that the maintainability of the appeal was conceded on behalf of the respondent before him. He then went on to say that the material on the record showed that the appellant had all along been under the impression that he had deposited the entire pre‑emption money. He then formed the opinion that as a bulk of the pre‑emption money had been deposited by the plaintiff in Court, his failure to complete the total payment was not a deliberate or conscious act. He, therefore, allowed the appeal, and, setting aside the order c the trial Judge, directed the deposit of the balance of Rs. 123.7.' on or before the 2nd of May 1963. In the High Court it was held by the learned Chief Justice that the matter was concluded by the authority, reported as Shah Muhammad Khan v. Allah Diwaya (P L D 1961 Lah. 743). The learned Chie justice was of the opinion that, the appellate Court had the?? jurisdiction to extend the time, fixed for deposit of the pre‑emption money, if the validity of the decree itself had been challenged. It has been contended by Mr. Said Akbar, on behalf of the appellant, that the effect of the ruling cited in the High Court judgment was not correctly appreciated. It seems to me, with respect, that the learned Chief Justice failed to notice the special features of that case. The authority cited does not support the view that he took in the circumstances of this case. He did not advert to the fact that that was a case in which the time was extended by the appellate Court, during the pendency of an appeal from the original decree itself. Our attention has not been invited to any case, in which it might have been held that the time for deposit of pre‑emption money, can be extended by the appellate Court, even when no appeal is pending against the original decree, or when an appeal from such a decree has been disposed of earlier. On the contrary, the ruling relied upon by the learned Chief Justice, itself declared that the trial Court could not have extended the time for deposit of the pre‑emption money under section 148 of ?the Code of Civil Procedure. That such an order of refusal of extension of time was not appeal able under section 148 of the Civil Procedure Code, is clear from the provisions of section 104 of the Code. There is also ample authority for this view. Reference in this connection may be made to Suranjan Singh v. Ram Bahal Lal (1913 1 L R 35 All. 582) and Muhammad v. Chiragh and others (P L R 1911 S C 134). In Sukramdas v. Nazer Muhammad and others (1925 1 L R 6 Lah. 316) a Division Bench of the Lahore High Court held that if the appellate Court does not extend the time for payment of pre‑emption money, and merely restores the order of the Court of first instance, on appeal from the order of the Court of first appeal, dismissing the suit, the time for payment must be regulated by the original decree. It is well settled that the operation of a decree, passed by a Court of first instance is not automatically suspended, on the mere filing of an appeal therefrom. This is also clear from rule 5, Order XLI of the First Schedule to the Code of Civil Procedure, which provides in sub‑rule (1) as follows:‑ "An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree." This being the position in law, unless in an appeal from the decree itself, the time fixed f9r deposit of the pre‑emption money is varied, it seems to me, that the successful pre‑emptor can disregard the time‑limit fixed in the decree, at his peril. He might, of course, consider that the time allowed for payment by g the trial Judge was too short, or that the pre-emption money fixed was excessive. In such a case, he might anticipate that the appellate Court would interfere, in the course of the appeal, with the decree and might give an extension of time for deposit) of the correct amount, But if his anticipation is not realised in this regard and he has failed to deposit the money within the time fixed by the Court of first instance, the result must be that his suit would be dismissed. The same would be the position if the necessary deposit is not made within the extended time fixed by the appellate Court, as happened in the present case. A decree passed in a successful pre‑emption suit is of a composite and contingent character. If the pre‑emptor satisfies the condition imposed on him with regard to the deposit of the pre‑emption‑ money the decree for possession becomes operative in his favour. If he commits a default in that respect, the decree, dismissing the suit, becomes effective. If either party has gone up in appeal from the decree, then, even if the decree has matured in favour of the other party in the meantime, as a matter of prudence but not of law, that party will forbear from taking out execution of the decree in his favour, as the decree might be varied eventually by the appellate Court. In practice, therefore, no difficulty is likely to be caused. On behalf of the respondent‑pre‑emptor, it was attempted to be argued by Mr. Ataullah Qureshi that this was a case in which the pre‑emptor had been prejudiced by neglect of the Court officials to point out that he was not making deposit of the correct amount in Court. The Courts below have found that there was no default of the Court officials in this case, and I see no reason to upset that finding. What appears to have happened is that the respondent erroneously assumed that he had deposited Rs. 1,523, instead of the actual amount of Rs. 1,400 in this case. The fact was that a sum of Rs. 1,523 had been deposited by him in connection with another pre‑emption suit, to which the respondent was a party and which amount he had withdrawn earlier. Retaining, however, the mistaken impression about the amount of money already in deposit, he made a deposit which was short by Rs. 123.75. , There was no report furnished by any Court official as to the correct amount to be deposited in this case and, at his own initiative, the respondent asked for forms to deposit what turned out later to be the incorrect amount. The error, if was committed by the respondent himself and, on equitable considerations, he is not entitled to any indulgence. The case cited by Mr. Ataullah Qureshi Nijabat Khan v. Nur Ahmad and others (P L D 1957 Lah. 92) is, therefore, not in point. In that case, there had been a valid tender of the full amount made by the pre‑emptor, but the deposit could not be made owing to difficulties created by the closure of the bank or the conduct `of Court officials. Mr. Ataullah Qureshi then invited our attention to a Privy Council judgment, reported as Saiyid Jowad Hussain v. Gendan Singh and others (AIR 1926 P C 93) in which it was held that in the case of appeal from a preliminary mortgage‑decree, the limitation for applying for a final decree runs from the date of the appellate decree. Here, there is no question of the starting being furnished by the appellate decree, because no final decree was to be asked within a certain time from the date of any preliminary decree. As has been mentioned above, the High Court in this case had dismissed the revision from the appellate decree without interference, and, therefore, the time fixed for payment of the pre‑emption money in that decree stood intact. There was no question of the appellate decree merging in the revisional order passed by the High Court. The second appeal from the appellate decree had been disposed of as a revision petition, in view of a change in the law. It was represented on behalf of the respondent that this view might make an appeal from the original decree, within the limitation provided by law, infructuous, if the pre‑emptor had failed to deposit the money in Court, within the time fixed by the original decree, where the time thus fixed, fell short of the period of limitation for the appeal and appeal was filed after the expiry of that time. Mr. Ataullah Qureshi relied on Kodal Singh v. Jaisri Singh and others (1 L R 13 All. 376) in which it was held that if the time for appeal had not expired, an appeal from a decree in a pre‑emption suit would still be competent, even if no deposit had been made within the time allowed by the trial Court. This proposition was also affirmed in Shah Muhammad Khan v. Allah Diwaya (P L D 1961 Lah. 743) referred to above. No exception need be taken to this statement of the law, but it must be added that the pre‑emptor takes the risk of getting his suit dismissed, for failure to make the deposit, within the time fixed, if the appellate Court, on an appeal from the decree, does not extend the time for payment. A feeble suggestion was made by learned counsel for the respondent that the question of extension of time for payment into Court, of pre‑emption money, might be covered by section 47 of the Code of Civil Procedure as a question relating to the execution, discharge or satisfaction of the decree. To this contention the short answer must be that the executing Court cannot as a rule go behind a decree, save perhaps in circumstances of an exceptional character which do not exist in the instant case. After giving my full consideration to the facts and circum?stances of the case, I have reached the conclusion that for the respondent's default in making payment of the correct amount within the time fixed by the appellate decree, his suit stood dismissed and there was no question of extension of the time involved, either by the original Court or by the appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed. I would, therefore, allow the appeal, set aside the order passed by the High Court, and hold that the respondent's suit stands dismissed, in terms of the decree of the Court of appeal. The appellant should have his costs in this Court and the Courts below. CORNELIUS, C. J.‑I agree with my learned brother S. A. Rahman, J. that this appeal should be allowed. The suit was one for pre‑emption, a right for the vindication of which it is permissible to require a pre‑emptor to comply with the strict requirements of the law and of the orders made by the Courts in the suit. The price of default is merely that the status quo ante the suit remains undisturbed. Here it seems to be clear that the pre‑emptor was under a misapprehension when he deposited a sum of Rs. 4,076 in the Court of the trial Judge on the 18th April 1962, in the belief that thereby the total of the sums deposited by him with reference to the suit was raised to Rs 8,000. That was the enhanced price set upon the property by the District Judge in appeal. The trial Court had found. ii to be Rs. 3,000. In fact, when the total was taken, it was found that he was Rs. 123‑12‑0 short of the full amount. In the meantime, following the judgment of the District Judge the plaintiff pre‑emptor had moved a second appeal in the High Court. Such an appeal was competent only on a question of law, but it maybe presumed that it‑ was framed so as to make it a question of law whether the enhancement of price by the District Judge was correct. That appeal was never admitted by the High Court. It was dismissed in limine on the 9th October 1962. The matter might have assumed a different aspect if the appeal had been admitted to a hearing, for then it could be urged that the High Court became seized of all matters arising for decision in the case including the question of time within which the price was to be made good. On this point, there is sufficient authority to be found among the judgment cited before us. In the case of Akbar Ali v. Hassan Ali (67 P R 1895) it was held that an appeal brought before the Divisional Court within time was maintainable, although the pre‑emptor had failed to deposit the price and time for such deposit had expired before the appeal was filed. In the pre‑emption case of Thakur Dass v. Tulsi Dass (70 P R 1890) the judgment of the Full Bench was delivered by that eminent Judge Plowden, J. who observed as follows: "In the case of an appeal able decree, the decree of the first Court is subject to orders of the appellate Court on the appeal, when the appeal is properly made against the decree as a whole, and this is so whether it is presented before or after the time appointed for payment has expired without compliance with the directions in the decree." In the case of Kodal Singh v. Jaisri Singh a Full Bench of the Allahabad High Court including that distinguished Judge Mahmood, J. held that an appeal was entertain able against a decree favouring a pre‑emptor; even though time for payment of the price had expired and payment had not been made, since the appeal could be brought not only for re‑determination of the price, but also on the ground that time fixed for payment was too short. A parallel case to the present case is that o Kisan Dewaloo Mali v. Ganga Bai (A I R 1939 Nag. 279) where the pre‑emptor after dismissal of his suit by the District Judge withdrew the money he had deposited towards the price in compliance with the trial Court's decree. Later, his appeal was allowed by the High Court and the suit was decreed in his favour, but no time was fixed for payment of the price. When he attempted to deposit the money in the trial Court, he was resisted on the ground that the time fixed had already expired, but the matter coming again before the High Court, it was held that this was a case of "technicality pushed to extremes" and that the money ought to have been allowed to be deposited within a reasonable time. In the present case, the pre‑emptor after dismissal in limine of his appeal in the High Court on the 9th October 1962, applied on the 22nd October 1962 to the trial Court saying that he had received information that the money he had deposited was short by about Rs. 123, that this was only a very small part of the pre‑emption money, that the default was not affected by bad faith, but was "an unfortunate and inadvertent and bona fide omission" to which the Court officials had contributed by informing him that the balance he had to make good was as much as he had deposited and seeking permission to make good the amount in deficit. The trial Court refused the prayer, nothing in its order that the pre‑emptor admitted the deficiency and had failed to establish negligence on the part of any Court official. On appeal, the District Judge holding the opinion that the default was not a deliberate or conscious act and that there had been a misunderstanding in respect of the small balance that remained unpaid, allowed the pre‑emptor request and fixed a date for deposit of the balance. The vendee moved the High Court in appeal without success. In this appeal we are asked to consider whether the error committed by the pre‑emptor in paying the pre‑emption money within time as fixed by the Courts is one which can be corrected by an extension of time granted by the trial or executing Court. There is no doubt that the error was one of inadvertence. When the pre‑emptor moved his appeal to the High Court, which was dismissed in limine in October 1962, be did so in the belief that he had paid up the pre‑emption money in full and there was nothing further to pay. If his appeal had been admitted to a hearing, the question of the deficit may well have been raised before the High Court, for in May 1962, the vendee had made an application to the trial Court to the effect that there was a short‑fall in deposit of the pre‑emption money and consequently the suit was liable to be dismissed with effect from the 30th April 1962, viz? the terminal date fixed by the District Judge. With this contention, the trial Judge had agreed and ordered the sum of Rs. 5 to be paid as costs to the vendee out of the money deposited in Court by the pre‑emptor, which was done on the 2nd June 1962, some four months before the pre‑emptor appeal was dismissed in limine by the High Court. It, is conceivable that had a prayer in respect of this matter been raised before the High Court between the time that the second appeal was filed and the date 9th October 1962, when it came up for hearing, the High Court may within its powers, as appearing from the authorities sited, have granted relief by way of extension of time. But with the dismissal in limine, the situation developed that the High Court never became seized of the appeal and those powers did not fall to be exercised, nor could it be said that the order of the trial Court dismissing the suit was, in the circumstances, made in disregard of the superior jurisdiction of the High Court There being in fact a short‑fall, the condition that the suit would stand dismissed on the 30th April 1962, if the amount fixed by the District Judge, was not duly deposited, came into operation, and although it may be regretted that a just claim which had been duly established was thus brought to a nullity; yet the claim being one for pre‑emption, it is susceptible of being avoided for a technical fault. I would like here to make an observation regarding one of the judgments of the Lahore High Court, which was placed before us at the hearing. This is the case of Sukhram Das v. Nazar Muhammad (1 L R 6 Lah. 316.). In that case the decree for pre?emption was made on the 22nd March 1916, against the vendee, who appealed successfully in the first appellate Court, but the pre‑emptor succeeded by further appeal to the High Court in obtaining a decree for pre‑emption on the 2nd February 1920. The money was deposited on the 26th February 1920, under an order of the trial Court granting extension of time, which was upheld in first appeal, but on further appeal in the High Court by the vendee, it was held on the 19th February 1925 that the suit was liable to be dismissed for failure on the part of the pre‑emptor to comply with the condition regarding payment of the pre‑emption money contained in the decree of the trial Court. The learned Judges in the High Court observed that by the decree of the 2nd February 1920, the High Court simply intended to restore the decree of the trial Court, without variation therein. To enable deposit after expiry of the terminal date fixed by the trial Court in 1916, a variation of that decree would be required, and it was not in the power of the executing Court to make any such variation. Speaking with respect that is a conclusion with which I find myself unable to agree. 'The matter may have been corrected by obtaining from the High Court an order supplementing its appellate decree of the 2nd February 1920, by fixing a date for, deposit of the pre‑emptor money. Alternatively, the rule of "reasonable time," laid down in the Nagpur case, cited above, may have been applied. If power could not be derived from any other source, I conceive that under section 151, Civil Procedure Code, the High Court would have been competent to make such an order as would not only advance the justice of the case, but also have the effect of giving validity to the High Court's own decree of the 2nd February 1920. In the present case, however, such power would appear not to have been available to the High Court, when on the 9th October 1962, it dismissed the appeal in limine for the reason that it never became seized of the appeal. At that stage it was either ignored by the pre‑emptor or his counsel or it was no within the knowledge of the pre‑emptor that the trial Court hay already brought his appeal before the High Court to a nullity its order made on the 22nd May 1962. There was an‑ occasion then not only to have the effect of the; latter order clarified, also to obtain from the High Court a direction regarding further time for deposit of the balance that was decreed. That opportunity was not used. When the matter came up again before the High Court in revision from the District Judge's order allowing deposit of the balance, there was no occasion for the pre‑emptor to ask for extension of time, and if such a request had in fact been made, it is difficult to see how it could have been met, since what was involved was a supplementary order in respect of the suit, and never having been seized of the suit through the dismissal in limine of the second appeal, it is not easy to see how such an order could have been made by the High Court, even under its residuary powers. HAMOODUR RAHMAN, J.‑I have had the privilege of perusing in advance the judgments proposed to be delivered in this appeal by my Lord the Chief Justice and my learned brother S. A. Rahman, J. I agree with their conclusion that this appeal should be allowed but since my reasons are somewhat different I feel it incumbent upon me to indicate them here. It is unnecessary for me to set out again the facts of the case which have been dealt with fully in the judgment of my learned brother S. A. Rahman, J. The question that arises for consideration in this case is whether, after a second appeal from a pre‑emption decree has been dismissed by the High Court in limine under Order XLI, rule 11 of the Code of Civil Procedure, the original Court which passed the decree or the first appellate Court which modified that decree has any jurisdiction to extend the time to make up a defici?ency in the deposit of the pre‑emption money directed to be deposited under the decree. In the present case, the trial Court decreed on the 21st of February 1961, that the successful pre‑emptor should deposit Rs. 3,000 including 1/5th of the probable value of the property already deposited by him under subsection (1) of section 22 of the Punjab Pre‑emption Act, on or before the 21st of March 1961, and further ordered that. "Otherwise his decree will be cancelled." On appeal by the vendee the amount of the pre‑emption money was increased by the District Judge to Rs. 8,000 and the pre‑emptor was directed to deposit "Rs. 7,200 within one month of the date of the decree", which was the 30th of March 1962, "otherwise his suit will be treated as dismissed with costs." The pre‑emptor went up in second appeal to the High Court against the enhancement of the pre‑emption money but this appeal, which was treated as a revision petition due to a change in the law in the meantime, was dismissed in limine on the 9th of October 1962. In the meantime the pre‑emptor had, on the 18th of April 1962, made a further deposit of Rs. 4,076.25 paisas in the belief that this sum would be sufficient to cover the enhanced amount which he was required to deposit by the appellate Court, after deducting certain sums due to him on account of a mortgage over the suit lands. This calculation, however, turned out to be incorrect and the deposit fell short by Rs. 123 75 paisas. This shortage was brought to the notice of the trial Court by the vendee, who is the appellant in this appeal, on the 22nd of May 1962, by means of an execution application for the realization of the costs of the suit, on the ground that the pre‑emptor suit had stood dismissed with costs with effect from the 30th of April 1962, in terms of the decree of the District Judge. This application for execution was, on payment of Rs. 5 awarded as costs by the Court, filed on the 28th of June 1962, as fully satisfied, Subsequently the pre‑emptor after the dismissal of his revision by the High Court applied to the original Court on the 17th October 1962, for extension of time to deposit the deficit amount on the ground that the deposit had occurred due to an inadvertent mistake caused by an error on the part of the officials of the Court in entering in the challan the amount of the deposit made in terms of the decree of the trial Court. This application purported to have been made under sections 47, 148 and 151 of the Code of Civil Procedure as the original Court was also the executing Court but the Court, after taking evidence, came to the conclusion that the mistake was of the pre‑emptor himself, as it was he who had entered the amount of Rs. 1,523 as the amount of the first deposit made by him on the 7th of March 1961, instead of Rs. 1,400 which was the amount actually deposited. A sum of Rs. 1,523, it appears, was deposited by the pre‑emptor in another pre‑emption suit between the same parties but that amount was withdrawn by him on the 3rd of September 1960. In the circumstances, no negligence of any official of the Court was established. The Court also held that it had no jurisdiction to extend the time for the deposit of the pre‑emption money directed to be deposited under the decree of the appellate Court. On appeal, the District Judge disagreed with the finding of the trial Court and held that the shortage could have been made up by the pre‑emptor if the Court officials had been vigilant and promptly brought it to his notice that the amount deposited was insufficient. In the circumstances, his failure to comply with the pre‑emption decree was not a deliberate or conscious act. The question as to whether the appeal was at all maintainable was also decided in favour of the pre‑emptor on the ground that the counsel for the parties had not argued this point. The appeal was, accordingly, allowed and the balance was directed to be put in on or before the 2nd of May 1963. From this order the vendee went up in revision to the High Court but this revision was also dismissed by Manzoor Qadir, C. J., who held relying on an earlier decision of the Lahore High Court in the case of Shah Muhammad Khan v. Allah Diwaya and others that the appeal was competent and that the appellate Court had the jurisdiction to extend time. Leave was granted in this case to consider the correctness of the above view, since the decision relied upon did not support it there appeared to be other decisions of the same High Court which took the view that the appellate Court could only exercise jurisdiction in an appeal from the pre‑emption decree itself and not in an execution proceedings, vide Muhammad v. Chiragh and others and Sukhram Das v. Nazar Muhammad. Section 148 of the Civil Procedure Code gives the Courts powers to extend time previously fixed or granted by it for the doing of any act prescribed or allowed by the Code of Civil Procedure and this they can do even after the period originally) fixed or granted has expired. But this section, it is now well settled, does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action. The principle upon which it has been so held is that since a decree normally puts an end to a suit the power of the Court to pass any other order with respect to that particular suit thereafter also comes to an end and the Court becomes functus officio with regard thereto. The exception made in the case of a preliminary decree is also on the same basis that in the case of such a decree the Court does not become functus officio but still retains control over the action and, therefore, has full power to make necessary orders therein including an order for the extension of time. This distinction is not without importance, for, even orders contained in decrees, which are not strictly speaking preliminary decrees, may not always be such as are intended to operate automatically without any further intervention by the Court. The real test, in my view, is whether the decree has been made in such terms as to indicate that the Court has finally disposed of all matters so that it is to operate automatically or whether the Court has still retained some control over the litigation. An examination, therefore, has, to be made of the precise terms used in the decree. In the present case, the decree of the trial Court used the words that in the event of default the suit "will be dismissed". These are not words of automatic operation, for, they contemplate a further order dismissing the suit. But the District Judge in the appellate decree made good this defect by stating that in the event of default the suit "will be treated as dismissed". These words were capable, in my view, of operating automatically without any further order by the Court. That there is a difference between the words "will be dismissed" and "will stand dismissed" or "will be treated as dismissed" has been generally accepted and the Courts have been inclined to invoke their power under section 148 of the Code of Civil Procedure where the words used are "will be dismissed" or words of similar import vide Dewratan v. Kristo Mohan Shah (I L R 48 Cal. 902 ) but where the words used are words of finality and are to take effect automatically this section can have no manner of application and the time cannot be enlarged. This is also the view of the English Courts vide The Script Phonographic Col v. Gregg & Whistler v. Hancock ((1890) 50 L J 406 (N S) In this view of the matter since the decree passed by the) District Judge on appeal contained the words that the "suit shall be treated as dismissed with costs" indicating that the default; clause was to operate automatically without any further order's from the Court, and this was the decree that was upheld by the High Court the executing Court could have had no jurisdiction to enlarge the time fixed thereunder. That decree could only; have been modified on an appeal from the decree itself to a competent Court under Order XLI, rule 32 of the Code of Civil Procedure and not under section 148 of the said Code. The appeal filed in the present case was dismissed in limine and nothing was said with regard to the date of deposit. The question is as to what is the effect of this dismissal in limine7 There can be no manner of doubt that where the appeal is admitted for full hearing the appellate Court has every right to vary the decree by enlarging time even when the appeal has been filed without making the deposit within the time allowed by the lower Court vide Kodal Singh v. Jaisiri Singh and others (I L R 11 All. 346 ). But there appears to be some difference of opinion on the question as to what is to happen if the appellate Court even in such an appeal says nothing about the time fixed by the lower Court in making the deposit. One view is that the time remains unchanged, for, even if the appellate decree, supersedes the decree appeal from it must be taken to have simply confirmed that decree to that extent vide Sukhram Das v. Nazar Muhammad. The other view is that if the appellate Court decree is the only executable decree and it fixes no period for depositing the pre‑emption money the appellate decree must be deemed to have incorporated the terms of the decree appealed from with this difference that the period fixed will run from the date of the appellate decree vide Rup Chand and others v. Shams‑ul‑Jehan. The third view is that in such event the deposit may be made within a reasonable time from the date of the appellate decree vide Guptar Tewari v. Debi Soran Tewari (A I R 1914 All. 248) and Kissan Dewaloo Mali v. Ganga Bai (A I R 1939 Nag. 279). Another extreme view taken is that in such a case the successful pre‑emptor should be entitled to enforce the decree within the period prescribed for the execution of the decree by the Limitation Act, vide Chakar Dar and others v. Ghapila and another (10 P R 1895). Neither the first nor the second nor the last view? appear to be based upon sound principles. If the first view prevails then the right of appeal would be rendered illusory unless the deposit has been made even if the pre‑emptor is appealing against the quantum of the pre‑emption money or the reasonableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorporated within it the terms of the decree appealed from how can the IN starting point of the period be deemed to have been varied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, Civil Procedure Code. In the circumstances, I would agree with my Lord the Chief Justice that the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and a successful pre‑emptor is not) deprived of the fruits of his decree unreasonably. Now as regards dismissal under Order XLI, rule 11 of the Civil Procedure Code a distinction appears to have been drawn between "dismissal" under sub‑rule (1) and "dismissal for default" under sub‑rule (2). The general consensus appears to be that dismissal under sub‑rule (1) is a dismissal on merits resulting in a decree which supersedes the decree appealed from and is itself appealable even if no formal judgment is written. On the other hand, a dismissal under sub‑rule (2) is not considered to be a decree and, therefore, not appealable. The insistence of this Court that even in the case of a dismissal under Order XLI, rule 11 (1) a brief judgment of some kind must be written vide Abdul Majid & Company v. The Federation of Pakistan (PLD 1962SC69) also seems to indirectly support the view that such dismissal is a decree. In this respect, therefore, I am inclined to the view that a decree of this kind stands on no different footing than a decree of dismissal after a full hearing. But even so it is a decree which confirms without modification the decree appealed from, for, the latter could not be varied without notice to the other side. The result, therefore, even in this view of the matter is that the executable decree is the decree appealed from as incorporated in the appellate decree and the pre‑emptor can gain no advantage even un the basis of the above distinction between dismissals under sub‑rule (1) and sub‑rule (2) of Order XLI, rule 11 of the Civil Procedure Code. For these reasons, therefore; I too am in the present case of the view that there was no power left in the executing Court after the dismissal of the revision in limine, to extend the time fixed by the decree of the District Judge, because, (i) section 148 does not apply in the case of time fixed under a final decree, (ii) the decree in the present case having been couched in words which gave the default clause automatic operation without any further order from the Court it was a final decree, which rendered the Court which passed the decree functus officio thereafter and (iii) the executing Court had, in any event, no jurisdiction to go behind that decree. In this connection I would also like to point out that, in my view, neither rule 14 of Order XX of the Civil Procedure Code nor section 22 of the Punjab Pre‑emption Act can have the effect of preventing the Court from passing a decree in a form in which words of finality are not used. It is not inconceivable that even under these provisions the Court may retain seisin to pass the final order of dismissal in the event of default subsequently upon the default being reported to the Court. Rule 14 of Order XX merely prescribes the forms of the decree. It does not debar the Court from exercising its other powers under the Code of Civil Procedure which are not inconsistent with its provisions nor does it say that the Court shall only pass an order which will take effect automatically on the default occurring. Again subsection (4) of section 22 of the Punjab Pre‑emption Act does not rule out the possibility of the Court extending the time for making up a deficiency in the security required by subsection (1) thereof, for, it speaks also of the `extended time'. In any event, section 22 only deals with the initial security deposit which is not to exceed 1/5th of the probable value of the land sought to be pre‑empted and not with the pre‑emption money to be deposited under the decree. Apart from this, there can be no manner of doubt that the appeal before the District Judge from the order of the Civil Judge refusing to extend time was not maintainable. The enlargement of time could only have been made under section 148 of the Civil Procedure Code and this not being a decree but only an order an appeal from it could only lie under section 104 of the Code of Civil Procedure but section 104 does not provide for any appeal from an order under section 148. For the above reasons I would allow this appeal but would make no order as to costs, as the default even accepting the findings of fact of the original Court was not intentional and was due to a mistaken belief that the entire amount had been put in and this mistake was never corrected by any Court official. ?B. A.?????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.