P L D 1962 (W (PLP)

Raja Said Akbar for Respondents. Date of hearing : 8th December 1961. This appeal by Painda Khan is directed against the order of the District Judge, Jhelum, dated the 15th of April 1959, which had affirmed the order passed on an execution application of Painda Khan on the 5th of November 1958 by Ch. Abdur Rahman Bhatti, the then Administrative Civil Judge, Jhelum, to the effect that Painda Khan was not entitled to get the property In dispute.

2. An execution application was instituted by Painda Khan, who claimed that he had been granted a decree for possession of the land in dispute by pre‑emption. Muhammad Akbar, a minor son of Haydat Khan, had brought a suit for possession by pre‑emp tion of a piece of land sold by his father, Haydat Khan, to Tiwana. Painda Khan had also brought a suit for possession of the same land and, as laid down by the Punjab Pre‑emption Act, 1912, by which the suits were governed, the two suits were consolidated and Muhammad Akbar, who was a minor and had a right of pre emption superior to that possessed by Painda Khan, was given the right to get the property in preference to Painda Khan. The decree passed by the learned trial Judge on that 31st January 1955, was to the effect that in case Muhammad Akbar deposited in Court by the 1st of March 1955 Rs. 2,000, excluding the money already deposited by him in Court as one‑fifth of the sale price, he shall be entitled to get possession of the land, but if he did not deposit or pay the money before the 1st of March 1955, his suit shall stand dismissed, and Painda Khan shall be entitled to get the possession of the land in dispute in case he deposited in Court by the first of April 1955 Rs. 2,000, excluding the money already deposited by him in Court. Muhammad Akbar did not deposit the money in Court, but on the 1st of March 1955, the Civil Judge who had passed the decree, certified the payment of Rs. 1,600 to Tiwana, who was also given the right to withdraw Rs. 400, which had already been deposited in Court as one‑fifth of the sale price under the orders of the Court. Painda Khan deposited the money in Court on the 28th of March 1955 and on the 3rd of March 1958 applied for possession of the land in execution of the decree. It was in the proceedings relating to this execution application that the order of the District Judge, which is the subject‑matter of this appeal, was passed.

3. Learned counsel for the appellant urged that under Order XX, rule 14, of the Code of Civil Procedure the Court's decree had to say that the price of the land was to be deposited in Court by the pre‑emptor within a certain period. He further urged that neither could the payment, which the pre‑emptor had to make, be said to fall under Order XXI, rule 1 of the Code of Civil Procedure nor could the person who had to get the money be considered to be a decree‑holder for the purposes of that pro vision of law, because the decree had been passed against the person who had to get the money and not in his favour. In coming to their conclusions, against the appellant the Courts below had relied on a decision of the Punjab Chief Court in Sher Shah and others v. Sher Jang (21 P R 1889) which decision, according to learned counsel for the appellant had no application to the present case.

4. The contention raised by learned counsel for the appellant to the effect that the decision In Sher Shah and others v. Sher Jang was not applicable to the present case, is not without substance. That decision was given in a case in which the question arose. whether or not a pre‑emptor could take benefit of certification of payment of the pre‑emption money and get possession of the land which had been decreed in his favour, though he had not deposit ed the money in Court as required by law and that question was answered in the affirmative. The present case, however, is not between the pre‑emptor and the vendee but between two rival pre emptors, and It appears to me that if the decree had directed the payment of money in Court, as, by reason of the provisions con tained in Order, XX, rule 14 of the Code of Civil Procedure, it should have done the stand taken by the appellant would have been unassailable.

5. In the present case, one finds that the learned trial Judge in his decree dated the3lst January 1955 had said that if the money was not deposited in Court or paid by Muhammad Akbar by the 1st of March 1955, Painda Khan would get the right to get the possession of the land in exercise of his right of pre emption. The implied direction la the decree that the price of the land could be paid outside the Court and need not necessarily be deposited in it, would offend against the clear provisions of Order XX, rule 14 of the Code of Civil Procedure and learned counsel for the appellant contended that the direction should have been ignored altogether. The question for determination; however, is whether Muhammad Akbar, who had acted on what was contained in the decree, could be penalised for carrying out its terms. Though at the time When the payment was certified Muhammad Akbar was a minor and the money was paid on his behalf by his guardian, 1 will proceed on the assumption that the default, if there was one, was that of Muhammad Akbar himself and he was fully as liable for it as if he were a major. I have given the matter my anxious consideration and have arrived at the conclusion that the appeal should not succeed, because what was done in the present case by paying the money to Tiwana outside the Court amounted to carrying out the terms of the decree. The fact that the decree should not have contained any thing to the effect that the money could be paid outside the Court, cannot prejudice a party Which had carried out that decree in its terms, because the acts of court should not be allowed to prejudice any party. It is true that one of the principles to be acted upon by Courts is that everyone is presumed to know the law, but the principle that acts of Court should not prejudice a party which has acted on the assumption that those acts were correct, is just as applicable to proceedings in Court as the principle already mentioned.

6. In view of what I have said above, I would dismiss the appeal, but would leave the parties to bear their own costs throughout. K. B. A.