1998 PLP 1789 (MLD)

(i) Bhai Khan v. Allah Bakhsh and another 1986 SCMR 849 The learned counsel heavily relied on this judgment. The relevant facts were that the suit of the plaintiff for possession in exercise of superior right of pre -emption was decreed by the trial Court vide judgment dated 24-11-1972, subject to the plaintiffs depositing balance of pre-emption amount on or before 14-12-1972. He then filed appeal which came up in the Court of Additional District Judge, who fixed the appeal for 14-2-1973 and in the meanwhile stayed the execution. Neither appeal was decided on the next date nor interim order was extended ultimately when appeal came up for final hearing on 4-11-1975, the appellant withdrew the appeal, however, he prayed for extension of time for depositing the balance of pre-emption money. The learned District Judge refused to extend time. The plaintiff-decree-holder filed R.S.A. No.3 of 1976 which was dismissed, vide order dated 4-6-1976, thereafter, he moved the Hon'ble Supreme Court for grant of leave which appeal was ultimately dismissed. The case is clearly distinguishable as: Firstly, in that case, a date was fixed for the deposit of the pre-emption amount while in the present case period of 2 months had been allowed, secondly, in the case in hand decree was suspended while in the precedent case execution of the decree was stayed. The appellant-pre-emptor was ill-advised to seek stay of the execution, thirdly, interim order as in force up to 14-2-1997, whereas appeal remained pending up to 4-11-1975, while in the present case, decree remained suspended till dismissal of the appeal on 4-11-1997, therefore, the time for deposit of pre-emption amount started running from 5-11-1997 while in precedent case if had expired during the pendency of appeal before the District Judge. (ii) Shahwali v. Ghulam Din alias Gaman and another PLD 1996 SC 98S: It was a case for possession in exercise of superior right of pre-emption. The suit was decreed by the trial Court vide judgment dated 21-2-1961 and the plaintiff was directed to deposit the pre-emption money by 21-3-1961. The defendant filed an appeal which was partially accepted by the learned District Judge vide judgment dated 30-3-1962. The result was that pre-emption money was enhanced to Rs.8,000 which was directed to be paid within one month. The plaintiff in that case had made following payments:-- 31-3-1960 Rs.1,600 1/5th of pre-emption money. 7-3-1961 Rs.1,400 in pursuance of decree of trial Court. 18-4-1962 Rs.4,076 towards enhanced amount. While he sought adjustment to the extent of Rs.800 as mortgagee of the suit land. Shah Wali on 22-5-1962 through written application pleaded that giving credit of all the above amounts, there was still a short fall of Rs.123.75, therefore, the suit of the plaintiff stood dismissed. The trial Court accepted this application vide order dated 22-6-1962. The plaintiff relying on sections 47, 48, 49, C.P.C., applied for extension of time for making the deficiency in pre- emption money. The trial Court dismissed this application for want of jurisdiction vide order dated 21-1-1963. The plaintiff filed an appeal. This was allowed by District Judge, Jhelum, vide order dated 18-4-1963 and the plaintiff was allowed to pay the balance of Rs.123.75 on or before 2nd May, 1962. This order was challenged by Shah Wali through revision petition in High Court, which was dismissed vide order, dated 5th of September, 1963. The Hon'ble Supreme Court granted the leave to appeal to Shah Wali and ultimately accepted his appeal. It was a case of short payment, therefore, not relevant to the present controversy. (iii) Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others 1976 SCMR 420: This case was again suit for possession in exercise of superior right of pre-emption. The plaintiff filed an appeal in the District Court for seeking reduction in the sale price fixed by the trial Court. The District Judge vide order dated 24-2-1968 allowed the plaintiff-appellant to furnish security for pre- emption money instead of depositing the same as directed by the trial Court. The appeal was dismissed and thereafter, the plaintiff deposited the same in the trial Court oh 16-6-1969 but her application for execution was dismissed on 30-6-1969 on the ground that the amount has not been deposited within time fixed in the decree. Thereafter, she made application for execution of the decree. The same was dismissed on 20-6-1969, on the ground that she has failed to deposit the pre-emption money within time fixed in the decree as time was not extended by the District Judge. The plaintiff thereafter moved application under section 152, C.P.C., which was accepted by the Additional District Judge, placing reliance on the case of Shah Wali. The judgment-debtor preferred revision in this Court. The same was accepted vide judgment dated 30-11-1962. Relying on the case of M/s. Ansari Brothers v. Holi Trinity Church Trust (PLD 1971 SC 700), that omission to fix time in the appellate decree could not be corrected under section 152, C.P.C., and such deposit has to be made within reasonable time. The appeal of the pre-emptor was dismissed by the Hon'ble Supreme Court because deposit was made after one month and 18 days, which was considered not reasonable in terms of the case of Shah Wali. It is clear from the above resume that the decree of the trial Court was suspended by the District Judge on last date i.e. 24-2-1968, meaning thereby that the time granted by the trial Court for deposit of the pre-emption amount was consumed by the pre-emptor except the last date therefore, she should have deposited the balance of pre-emption money immediately, after the dismissal of her appeal, and not taken one month and 18 days while in the present case, the pre-emptor was given 2 months' time. He got the decree suspended just after 20 days. This way one month and 10 days were still at his disposal for deposit of pre-emption money. This period started running immediately after dismissal his appeal as withdrawn, therefore, deposit made within next 20 days would be deemed sufficient compliance of the decree.

6. The judgment of the Trial Court was affirmed by this Court meaning thereby that the time for deposit of the pre-emption amount remained unchanged. The decree having remained suspended from 23-1-1996 to 4-11-1997, therefore, the time for deposit of pre-emption, started running once again after the vacation of the injunction order with dismissal of the appeal on 4-11-1997. It was not a case where the pre-emptor was seeking any indulgence of the Court for extension of time, therefore, the cases relied by the appellant are not relevant to the controversy.

7. The legal position, as held by the learned Executing Court, was that the pre-emptor still could deposit the amount within un-expired period, as allowed by the Trial Court in the original decree is correct. The order is legal and does not make a case for any interference.

8. The upshot of the above discussion is that the appeal is without any merit. The same is dismissed. H.B.T./B-38/L Appeal dismissed.