1993 PLP 572 (CLC)

Facts in Execution Second Appeal were not intricate but the proposition of law raised in it was a little complex. Therefore, a brief resume of salient features of the case shall be helpful to the understanding of the point of law requiring determination in the appeal. By Mutation No.79 sanctioned on 27‑10‑1962, Pir Bakhsh and others sold 32 Kanals of land subject to mortgage for a sum of Rs.2,400 to Palia, Yar Muhammad son of Bakhu, Fatal son, of Ram7an, Gaman son of Yaran. This sale was subjected to two pre‑emption suits by separate sets of pre‑emptors. One suit was instituted by Jeenda son of Muhammad Ramzan and the other by Sahja and Noor Muhammad. Jeenda asserted superior right of pre‑emption on account of being a collateral of the vendors and their presumptive heir whereas the rival pre‑emptor claimed superiority on the ground of being Khatadars. Both the pre‑emption suits were consolidated for a common trial and common set of issues were settled for trial. These issues have been correctly reproduced in the original judgment of the trial Court and in view of limited controversy on legal place need not be repeated. On 6‑7‑1966, the trial Court found that Jeenda was proved to be a collateral of me vendors except Mst. Jindan and Mst. Sohagan and, therefore, had superior right of pre‑emption on score of relationship to the extent of 30 Kanals, 7 Marlas only. Consequently, his suit was decreed to that extent subject to his deposit of Rs.2,276.25 (less 1/5th of purchase‑price) on or before 6‑9‑1966. Remainder land (1 Kanal, 13 Marlas) was decreed to Sahja and Noor Muhammad subject to their paying its price in the sum of Rs.123.75 on or before 6‑9‑1966. If the superior pre emptor failed to comply with the terms of decree in his favour, inferior pre emptor shall deposit the purchase price on or before 6‑10‑1966 and in that event pre‑emption suit by Jeenda shall be deemed to have failed. In case both sets of pre‑emptors failed to comply with the conditional decree, their suit shall stand dismissed with costs. Neither set of pre‑emptors preferred an appeal from the decree of the trial Court. However, vendees chose to challenge the decree in appeal before learned District Judge of Dera Ghazi Khan. In appeal, additional evidence taken towards end of the trial by the trial Courts and price payable for the land were subjected to challenge. Learned District Judge upheld taking of additional evidence but set aside f‑coding on market value and remanded the suit for its determination afresh on 24‑11‑1966. On remand, the trial Court on 22‑2‑1968 gave fresh decree to Jeenda for 30 Kanals, 7 Marlas, conditional upon payment of Rs.2,276.25 on or before 27‑3‑1968 and second decree for the remaining land upon payment of Rs.123.75 on or before 27‑3‑1968 was given in favour of Sahja and Noor Muhammad. Usual default clauses were inserted in the judgment and decree of the trial Court. It seems neither party filed appeal against the decree of the trial Court. Jeenda had deposited purchase money in the sum of Rs.2,276.25 (minus Zar‑i‑Panjam) on 8‑9‑1966. Thereupon, on 2‑5‑1968, an execution of the pre‑emption decree was sued out by him. Vendees‑judgment‑debtors objected to the execution on the ground that pre‑emption money was not deposited in time in terms of first pre‑emption decree. Therefore, pre‑emption suit had suffered forthwith death and proceedings taken thereafter in appeal or in the trial Court were nullities. By a short order on 7‑6‑1968, objections were dismissed by the Execution Court. In appeal, the decision was reversed by learned Additional District Judge, Dera Ghazi Khan, who remanded the' objections for re‑decision on merits after hearing the parties on 15‑12‑1969. Again on January 10, 1970, the trial Court dismissed the objections mainly on the ground that earlier pre‑emption decree was set aside in appeal at the. instance of the vendees and, therefore, it was reduced to a nullity and terms of pre‑emption decree passed in the remanded suit w re complied with and purchase‑price deposited in time fixed in it. In appeal from the order of the trial Court by the judgment‑debtors; learned Additional District Judge, Dera Ghazi Khan, who had earlier remanded the matter after noticing the rival contentions said, "this approach is however correct only when the appeal is competent and not otherwise. In the instant case, the suit stood dismissed after 6‑9‑1966 i.e. the last date allowed to Jinda respondent decree‑holder for the deposit of decretal amount due to his failure to comply with the terms of decree. Consequently, no appeal was competent. The appeal lodged by the appellants was untenable for all intents and purposes. It follows, therefore, that all the proceedings taken by the learned District Judge resulting in the acceptance of the appeal against the original decree and remand of the case for re‑trial and the second decree dated 22‑2‑1968 were all misconceived and nullity in the eye of law. There was and is not even now any subsisting decree in favour of Jinda respondent decree holder after 6‑9‑1968.

5. Learned counsel for the respondent decree‑holder has lastly argued that the last date for the deposit of the decretal amount was 9‑9‑1966 and not 6‑9‑1966 and that Jinda respondent decree‑holder had deposited the decretal amount on 8‑9‑1966. There is however nothing on the record to support this contention of the learned counsel except that the decretal amount was deposited on 8‑9‑1966. In sequence to the above observations, appeal was accepted on 29‑4‑1970 and objections to the decree were sustained. In result, judgment and decrees passed in appeal remanding the suit and decree passed in the pre emption suit by the trial Court were set at naught. Here it may be observed that appeal against the first decree was filed on 1‑9‑1966 by the vendees. There were yet few days left for the decree‑holder‑pre‑emptor for complying with its terms. Records of the appeal did not show that the appellants either applied for stay of execution of the impugned decree or for suspension of its operation. Further, remand order was not appealed from nor the decree passed by the trial Court thereafter. In the above context, it is to be seen whether objections could prevail and Execution Court could go behind the decree passed by a competent Court of jurisdiction, and, whether in appeal, the Additional District Judge could set aside a decision of the Court of coordinate jurisdiction and hold that appeal was incompetent and decision in it a useless paper and a nullity. In my opinion, neither the Executing Court nor the Court hearing the appeal from its decision could competently bypass the remand order in appeal . by learned District Judge and consequent judgment and decree passed by the trial Court on its basis. Remand order was appealable under Order 43, Rule 1, clause (u) of Civil P.C. In face of subsection (2) of section 105 of the Code of Civil Procedure, absence of appeal from it prevented a challenge to its correctness in the subsequent round of litigation. Further, it was open to grave doubts whether learned Additional District Judge could competently ignore an earlier order of remand by learned District Judge. It was true that filing of appeal against the decree did not operate as stay of the decree appealed from. But it is equally true that upon filing of the appeal, the whole matter was re opened for fresh consideration by the appellate Court. Having accepted the decision in appeal, participating in the remanded proceedings before the trial Court and, thereafter, not appealing from the adverse decree precluded the vendees respondents from questioning the correctness of pre‑emption decree in favour of the appellant‑Jeenda. It may be noticed at the end that on behalf of the appellant, his learned counsel stated that the execution was already finalised and possession taken by the decree‑holder‑appellant before the impugned judgment was pronounced by learned Additional District Judge. In absence of a proper data, I do not propose an opinion on it. For the foregoing reasons, I accept the appeal, set aside the impugned decision dated 29‑4‑1970 of learned Additional District Judge, Dera Ghazi e Khan, and uphold that of the learned trial Court dismissing the objections to the execution of pre‑emption decree in favour of the appellant. There shall be no order as to costs in this Court. Records be returned. A.A./J‑43/L Appeal accepted.