2006 PLP 1624 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioner/defendant impugns the order, dated 30-7-1986 of the learned executing Court whereby an objection petition filed by the petitioner was dismissed, and the appellate order, dated 16-9-2000, whereby the order of the learned executing Court was upheld.

2. The facts of this case are relatively straightforward. The respondent filed a suit seeking possession of the suit land through pre-emption. This suit was decreed in favour of the respondent/plaintiff on 9-7-1977. According to the terms of the decree the respondent was to deposit the sale price determined by the Court by 7-9-1977, failing which his suit was to stand dismissed.

3. The short question in this case is as to whether the respondent did in fact deposit the sale price in accordance with the terms of the aforesaid decree. According to the petitioner/defendant the amount was deposited on 20-10-1977 and, therefore, the pre-emption suits stood dismissed. On the other hand, the case of the respondent/plaintiff is that he deposited the amount in the National Bank of Pakistan on 7-9-1977 but inadvertently he did not leave any copy of the challan with the Bank and therefore, according to the respondent, the amount was credited by the Bank into a sundry account.

4. I have examined the payment challan which shows that the amount was credited to the account of the Court on 20-10-1977. This fact was not disputed by learned counsel for the respondent who merely reiterated that the deposit was duly made on 7-9-1977 although it was credited into the account of the Court on 20-10-1977.

5. Learned counsel for the petitioner drew the attention of the Court to Order XX, Rule 14, C.P.C. which relates to pre-emption decrees and payment of purchase money by a pre-emptor such as the respondent. This provision is very clear and entitled the respondent to possession and title in respect of the suit property only if the purchase money had been paid into Court within the period allowed by the Court. There is, in my opinion, a clear and simple test for determining if the purchase money has been paid into Court. If the Court is in a position to withdraw the money or to issue a draft in favour of a defendant-vendee enabling him to receive the money from the Court's account, it would be clear that the purchase money has been paid into Court. In the present case, the respondent by his own account, has failed the aforesaid test because the purchase money was not available in the Court's account on 7-9-1977. In the circumstances, even if the contention of the respondent/plaintiff is accepted that he had deposited the money in the bank on 7-9-1977, it is clear that the said deposit could not be treated as a payment into Court because the sum was credited into a sundry account and not into the Court's account. The payment challan itself shows A that the account of the Court was only credited on 20-10-1977. According to the law as construed above, it is this date which is to be treated as the day on which payment was made into Court. In this view of the matter, I am left in no doubt whatsoever that the respondent did not comply with the terms of the decree and, therefore, his suit stood dismissed.

6. Before I part with this judgment I need to advert to another relevant feature of this case. The respondent has conceded his fault in taking away all of the copies of the challans thus causing the bank to credit the deposit made by him into a sundry account rather than the account of the Court. It follows that the consequence of the respondent's mistake has to be borne by the respondent and not by the petitioner. If the bank had been at fault, it may have been possible to hold that the bank was an agent of the Court and, therefore, the respondent could not be deprived of the benefits of the decree obtained by him. This is an additional reason why the respondent cannot succeed in execution proceedings.

7. The learned Courts below have not taken into account the above legal position. They have erred in law by treating the deposit into a sundry account of the National Bank of Pakistan as a deposit into the account of the Court. This finding is not in accordance with the law as set out in Order XX, Rule 14, CPC, discussed above. The impugned orders are, therefore, set aside. As a consequence, the objection petition filed by the petitioner is allowed and the execution filed by the respondent is dismissed. H.B.T./M-94/L??????????????????????????????????????????????????????????????????????????????????? Revision allowed.