1983SCMR 683 (PLP)

Date of hearing: 4th May, 1983. NASIM HASAN SHAH, J.‑The suit filed by the respondents (plaintiffs in the case) was decreed by the Senior Civil Judge, Vehari, on 6th March, 1978 on payment of Its. 4 lacs which was found to be the sale price of the land and it was directed that the decretal amount be deposited by the 6th of May, 1978. Although the decree was in favour of the plaintiffs/ respondents they preferred an appeal before the Lahore High Court to challenge the amount fixed as the sale price of the land and also moved an application praying that the operation of the judgment/decree be suspended to the extent that they were required to pay Rs. 4 lacs till the final disposal of the appeal. The appeal, being a regular first appeal, was admitted as of a right. So far as the application for stay was concerned, a notice was issued to the petitioners herein for an early date and it was further ordered that "in the meanwhile, the amount of Rs. 4 lacs will not be deposited by the appellants (i.e. the respondents herein)." The order was passed on 26th April, 1978. The petitioners feeling dissatisfied with the above ad interim stay order. moved an application for its vacation. 'The application for confirming the ad interim order of stay, as also the application for its vacation moved by the petitioners, both came up for bearing together before the High Court on 28th October, 1973. As no one appeared for the respondents on the said date, the application for suspending the direction of the trial Court for payment of Rs. 4 lacs was dismissed in default; as for the other application, moved by the peti tioners herein, for vacating the ad interim order of stay, it was observed that it stood automatically disposed of, in view of the said order. In view of the dismissal of the stay application the amount of Rs. 4 lace, it is stated, was required to be deposited, within the un-expired period allowed by the Senior Civil Judge for the deposit of the pre‑emption money from the date of the dismissal of the stay application after deducting the period for which the stay remained in operation, namely, up to 7th November, 1978. This was not done, In fact, the deposit was made on 22nd March, 1979. The petitioners, therefore, moved an application before the High Court to the effect that as the order with regard to the deposit of the pre‑emption amount made by the trial Court had hot been complied with, their suit stood dismissed and the decree in favour of the respondents herein had become inoperative and in -executable. The High Court has ultimately not agreed with this plea and the application raising it having been dismissed, by the impugned order dated 3rd March, 1983, hence this petition for leave to appeal. The learned counsel for the petitioners has, in support of this peti tion, relied upon Ghulam Muhammad and another v. Irshad Ahmad and another (P L D 1982 S C 282), especially the following observations contained therein at page 290 of the report :‑ "The learned counsel, with respect, ignored the peculiar nature of the so‑called success/decree which the vendee judgment‑debtor gains by the default of the plaintiff pre‑emptor. It is not on the basis of a decision on merits in favour of the vendee but is on p9count of peculiar procedural aspects of the list in a pre‑emption case. As observed in the case of Shah Wali, a decree passed in favour of the successful pre‑emptor, is of a "composite and con tingent character." If the pre‑emptor satisfies the condition imposed by the Court on him with regard to the deposit of the pre‑emption money within a specified period, the decree for pos session would become operative in his favour. If on the other hand, he commits a default in that respect, the decree dismissing the suit becomes effective." The question whether despite the pendency of the appeal the suit, which was decreed in favour of a party on certain conditions, can held to stand dismissed on account of the non‑performance of the said conditions and the decree of the trial Court can be treated as having disappeared and become ineffective and, therefore, in-executable, is a question of frequent occurrence, on which there is no clear, authority. Leave is, accordingly, granted for consideration of this question. Security Rs. 2,

500. The appeal shall be made ready on the present record with leave to the parties to add further documents, if any. Concise statements, however, shall be filed. The appeal shall be fixed for hearing in the week commencing 25th rune, 1983. In the meanwhile, whosoever is in possession, shall remain in possession. Leave granted.