P L D 1988 Supreme Court 20 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑This petition by Fateh Muhammad and others, legal representatives of deceased Ghulam Haider, seeks review of the judgment of this Court dated 19th January, 1986, whereby their appeal from the judgment of the Lahore High Court, Lahore, dated 22nd November, 1972, was dismissed.

2. The facts so far as relevant for the present purpose are that Ghulam Rasool and others sold their agricultural land to Mst. Raj Bharri (since deceased and represented by her legal representatives); and three others, respondents herein, for Rs.12,

000. On the transaction a mutation was effected and sanctioned. Ghulam Haider pre‑empted the sale through a suit on the ground that he was a superior right‑holder as a co‑sharer in the same khata. The important point is that he. also disputed the consideration as being fictitious and alleged that only Rs.6,000 was paid as price for the sale. The trial Court decreed the suit holding the sale consideration to be Rs.7,215 and directing Ghulam Haider to deposit this amount by 22nd June, 1965, failing which the suit was directed to stand dismissed. In an appeal filed by the vendees, the first appellate Court enhanced the sale price to Rs.12,000 but dismissed the appeal in all other respects and ordered the decree‑holder to deposit the amount by 30th April, 1966, failing which it was ordered that the suit shall stand dismissed.

3. Being dissatisfied with the enhancement of the sale price, Ghulam Haider filed a second appeal in the High Court and a stay against the deposit of the pre‑emption money in excess of Rs.7,215 was granted by the High Court on 28th April, 1966. Pending the second appeal in the High Court, Ghulam Haider, appellant before the High Court died on 1st October, 1968. However, no application for bringing‑ his legal representatives on record was made within time but was filed 'on 8th April 1969. This application was allowed subject to all just exceptions, with the result that the legal representatives of the deceased were substituted as appellants. At the final hearing of the appeal the respondents objected to the continuance of the appeal on the ground that the same had abated automatically on the expiry of the period of limitation prescribed by law for bringing on record the legal representatives of the deceased appellant and that there was no sufficient ground for condonation of the delay in making the application after the expiry of the prescribed period of limitation. The learned Single Judge who disposed of the appeal treated the application of the legal representatives as an application for setting aside abatement of the appeal and examined the grounds urged in support of the condonation application under section 5 of the Limitation Act and came to the conclusion that the delay was not satisfactorily explained. He also rejected the alternative argument that by virtue of the amendments brought about by the Law Reforms Ordinance, 1972, doing away with the provisions regarding abatement of the suits and appeals, the non‑joinder of legal representatives of the deceased appellants did not in any way have the effect of the abatement of the appeal. The reason that prevailed with the learned Judge was that abatement takes effect automatically and in this case the appeal had thus abated before coming into force of the amended law which could not be given retrospective operation so as to wipe of vested rights. As a result of these conclusions he rejected the application for condonation of delay and declared the appeal to have abated. The operative part of the judgment of the learned Judge dated 22nd Novemeber, 1972 reads as follows:‑ "The appeal having been declared to have abated, no question of passing an order so as to permit the petitioners to deposit the decretal amount arises because if an action fails what is incidental fails also."

4. Being dissatisfied by the judgment of the High Court the petitioners then brought a petition against the said judgment for leave to appeal in this Court and on a prayer for grant of status quo the following order was passed on 2nd January, 1973: "Status quo shall be maintained during the pendency of this petition, provided the petitioners deposit the full price as decreed by the Additional District Judge, Gujrat, by or before the 2nd of February, 1973." It is the case of the petitioners that consequent to the decree passed by the trial Court, the amount of Rs.7,215 directed to be paid as the market price of the land in dispute, Ghulam Haider deceased deposited the same in Court within time, where upon a decree was prepared and was duly executed, with the result that the possession of the suit land was delivered to him. As regards the balance amount of Rs.4,785 from the total consideration of Rs.12,000 as enhanced in first appeal, this amount was not paid during the pendency of the second appeal in the High Court on account of stay granted on 28th April, 1966, that is two days before the expiry of the period prescribed in the appellate decree. However, in pursuance of the interim order passed by this Court dated 2nd January, 1973, the said amount was paid on 29th January, 1973, vide challan No. 2030/2278 at the National Bank of Pakistan, Gujrat, well before the expiry of the period prescribed in the stay order. On the petition of the petitioners leave was granted by this Court on 19th October, 1973, One of the grounds on which leave was granted was whether the refusal of the High Court to permit the pre‑emptor to deposit even the decretal amount determined by the lower appellate Court was wrong, for, even if the appeal is abated the decree of the lower Court stood, and the High Court should have given reasonable time to comply with that decree which he had not been able to do by reason of the appeal that he had filed in the High Court.

5. At the hearing of the appeal the main points pressed on behalf of the petitioners were that the appeal did not abate as a result of the failure to substitute the legal representatives of the deceased appellant under the changed position of the law on account of amendments effected by Law Reforms Ordinance, 1972, and in the alternative that the High Court had erred in refusing to condone the delay in making the application for setting aside the abatement and allowing the legal representatives to be brought on record. Both these contentions did not find favour with the Court, with the result that the view taken by the learned Single Judge of the High Court was upheld. Accordingly the appeal was dismissed by the judgment under review dated 19th January, 1986.

6. In support of the prayer for. review it is urged that the fact that by an interim order dated 2nd January, 1973, during the pendency of the petition for leave to appeal this Court had extended the time for the deposit of "the full price as decreed by the Additional District Judge, Gujrat" and in pursuance thereof the balance of the decretal amount was in fact deposited in Court, the rights accruing under the decree were fully preserved with the result that the appellate decree came into effect, irrespective of the result of the appeal in this Court. On the principle that the appellate Court could extend time for deposit of pre‑emption amount both during the pendency of the appeal before it as well as when it dismisses the same, reliance has been placed on Bhai Khan v. Allah Bakhsh and another (1986 SCMR 849). In this case this Court has reviewed the case‑law and referred to several precedents of this Court on the question as to what is the effect of an appeal filed only against the decree with regard to pre‑emption amount payable by the pre‑emptor decree‑holder after the finding that he possessed a superior right of pre‑emption. In these cases it was laid down that the Suprme Court has the power to grant extension of time through an interim order for depositing the balance of the pre‑emption amount payable, even during the pendency of the petition for leave to appeal and that the deposit of the amount under such an interim order would save the decree passed in favour of the pre‑emptor, notwithstanding the dismissal ultimately of the petition for leave to appeal. In view of this clear dictum of law laid down by this Court and by now very well‑settled, it seem to us that the effect of the interim order referred to above and its due compliance was indeed to save the decree passed in favour of the petitioners, unless ordered otherwise by this Court. After hearing the learned counsel we have no doubt in our mind that this Court would have clearly stated this position in the final judgment in the appeal. But unfortunately at the time of the hearing of the appeal there was nothing on the record before the court to indicate that the petitioners had deposited the amount within the prescribed time in this court. This is reflected from the following passage of the judgment: "Before entering on the main discussion I would like to point out that the deceased appellant, by an order of this Court dated 21st January, 1973, was ordered to deposit the full price as decreed by the first appellate Court by or before the 2nd of February, 1973. But as to whether this amount had, in fact, been deposited is not apparent from the record." However, as irrefutable evidence has now been pointed out and it is not denied before us that the amount was deposited well within time, we cannot allow the petitioners to suffer the loss of benefits which had already accrued to them and even the decree of the trial Court stood executed.

7. Be that as it may there is an important aspect of this case which also deserves to be noticed. From the narration of the facts it will be seen that when the High Court stayed the execution of the decree of the first appellate Court, there remained two days for the deposit of the decretal amount and the pre‑emptors were entitled to avail the unexpired period, even if the time had not been extended by the High Court when the appeal was disposed of. It was argued on behalf of the respondents that this unexpired period of two days had long before lapsed on the date of the application by the petitioners for setting aside abatement, by virtue of the principle that abatement takes effect automatically. This argument, however, overlooks the fact that the High Court itself set aside the abatement albeit subject to just exceptions at the hearing of the appeal, but the effect of this order in law was to make the appeal once again pending, in consequence the interim order staying the execution of the decree was restored to full effect and operation. The interim order was, therefore, terminated on the date when the appeal was dismissed by the High Court, see Ghulam Muhammad and another v. Irshad Ahmad and another (PLD 1982 SC 282). Unfortunately, however, the learned Single Judge did not advert to this aspect of the matter and refused to permit the petitioners to deposit the decretal amount, although at least two days time was available to the petitioners as a matter of right. In the face of the judgment of the High Court, obviously the petitioners were unable to deposit the amount which they could only, do on the passing of the interim order by this Court. It is well settled that no party shall be made to suffer on account of the act of the Court. In view of all these circumstances we feel that the', petitioners could not be deprived of their rights and benefits under, the decree passed by the Additional District Judge, which was duly' complied with by them.

8. In the judgment under review for the reasons already stated, the following observations were made:‑ "As to the existence of the decree in favour of the deceased appellant, it is settled law that it is only when the full sale price is deposited in accordance with the order of the court that title passes to the successful pre‑emptor under Order XX, Rule 14 (1) (a). This not having been done by the deceased appellant, the decree also fell through on the appeal having abated under Order XX, Rule 14 (1) (b) and the suit stood dismissed on the date on which the Court declared the appeal to have abated." In view of the facts brought to our notice we have, as stated before, come to the conclusion that the decree passed in favour of the petitioners is fully effective and unaffected by the decision of the appeal by this Court. The legal position arising out of the facts enumerated in this order, is fully consistent with the above‑cited portion of the judgment. The balance of the sale price having been deposited by the decree‑holder in accordance with the order of the court, the title passed to them as the successful pre‑emptors under Order XX, Rule 14 (1) (a) of the CPC. While therefore maintaining the final decision of the appeal, we hold that the suit of the petitioners stands decreed in their favour with the enhanced sale price of Rs.12,

000. The balance of decretal amount lying in this Court shall be dealt in accordance with law and in terms of the decree passed by the first appellate Court.

9. In the result this review petition is allowed in terms aforesaid, with no order as to costs. M.B.A./G‑50/S Review petition allowed.