2016 PLP 179 (SCMR)

AMIR HANI MUSLIM, J.

Through the instant Civil Appeal, the Appellants have challenged the judgment passed by learned Peshawar High Court in Civil Revision No. 444 of 2010, whereby, the learned High Court while accepting the same, set aside the judgments of the Courts below, dismissed the suit and terminated the execution proceedings.

2. The facts relevant for disposal of the present Appeal are that Appellants Nos.1 and 2 filed a suit for specific performance of an agreement to sell dated 2.12.2007 against the Respondents in the Court of Civil Judge, Samar Bagh. It was pleaded in the plaint that the suit property was devolved upon the Respondents, who agreed to alienate the same, by way of sale in their favour for a sum of Rs.14,00,000/- and an agreement to sell dated 2.12.2007 was executed in presence of the witnesses; whereby the Respondents Nos.1 and 2 agreed to transfer their respective shares in favour of the Appellants for a sum of Rs.7,00,000/- each. The Respondent .No.2 received his share of sale consideration whereas a sum of Rs.3,00,000/- was paid to the Respondent No.1 as earnest money and the remaining sale consideration of Rs.4,00,000/- was agreed to be paid to the Respondent No.1 upon completion of sale and delivery of possession. It was further pleaded in the plaint that the Appellants pursued the Respondent No.1 to receive the remaining sale consideration and delivery of possession, who on one pretext or the other, avoided to abide by the terms of the agreement. It is pertinent to mention here that the suit was not pressed against Respondent No.2 and he was only impleaded as proforma Respondent.

3. The trial Court proceeded with the case. The Respondent No.1 though was personally served did not appear and contested the suit before the Court, therefore, on 15.7.2008, the trial Court decided to proceed with the case ex parte against the Respondent No.1. On 23.7.2008, the Respondent No.2 filed his cognovits, admitting the averments of the plaint. On 30.7.2008, the trial Court recorded ex parte evidence of the Appellants and fixed the case on 31.7.2008 for announcement of order. On 31.7.2008, the trial Court passed ex parte decree against the Respondents, with direction to the Appellants to deposit remaining amount of sale consideration of Rs.4,00,000/- within forty days, failing which the suit would be deemed to have been dismissed.

4. Admittedly, the Appellants failed to deposit the remaining amount of sale consideration with the trial Court within the stipulated time. On 14.10.2008, the Appellants made an application before the trial Court, seeking extension of time for depositing the amount as directed in the decree passed by the trial Court, inter alia, on the ground that they were abroad, therefore, could not deposit the amount within time. Along with this Application, an Application for condonation of delay was also moved. Notice of these Applications was issued to the Respondents. On 31.10.2008, the trial Court allowed the Applications ex parte and extended the time to deposit the said amount for ten months, holding that it had ample power under section 148, C.P.C. to extend the time and that the decree was a preliminary decree.

5. On 4.11.2008, the Appellants filed an Application for passing the final decree, which was allowed and the trial Court passed final decree on 20.12.2008 in favour of the Appellants. On 20.4.2009, during the execution proceedings, the Respondent No.1 filed an Application before the trial Court for setting aside the ex parte as well as final decree, inter alia, on the around that he was in Kashmir in connection with earning of his livelihood and that the Appellants had promised to withdraw the suit upon the intervention of the elders, therefore, he was unaware of the decree. An Application for condonation of delay in filing the Application for setting aside the ex parte decree was also moved. The Appellants resisted the Application. However, the trial Court by order dated 5.12.2009 dismissed the Application for setting aside the ex parte decree dated 31.7.2008 and final decree dated 20.12.2008.

6. The Respondent No.1 filed Appeal before the First Appellate Court, which was dismissed vide judgment dated 19.2.2010 against which the Respondent No.1 filed Civil Revision No.444 of 2010, which was allowed, the judgments and decrees of the Courts below were set aside and the suit of the Appellants was dismissed. The execution proceedings were also directed to be terminated. Hence this direct Appeal by the Appellants.

7. The learned Counsel for the Appellants has contended that the learned High Court has erred in law in allowing the Application of the Respondent No.1 for setting aside the ex parte decree and dismissing the suit of the Appellants. He contended that the trial Court has rightly allowed the Application of the Appellants for extension of time to deposit the balance sale consideration in the Court, as under section 148, C.P.C. it has the power to extend the same for deposit of amount. He submits that the impugned judgment of the learned High Court is liable to be set aside.

8. He next contended that the Application for extension of time was within time, as the final decree was passed on 20.12.2008 whereas the said Application was made on 14.10.2008 before the passage of the final decree.

9. On the other hand, the learned Counsel for the Respondent No.1 has contended that once the time fixed by the trial Court for deposit of the balance sale consideration was over, it had no jurisdiction to extend the same, as after passing the ex parte decree the Court had no control over the lis.

10. We have heard the learned Counsel for the parties at length and have perused the record. It is an admitted fact that the trial Court had passed the ex parte decree on 13.7.2008 with a direction to the Appellants to deposit the remaining sale consideration in Court within 40 days, failing which the suit filed by them shall stand dismissed. Admittedly, the Appellants had made application for extension of time for deposit of balance sale consideration on 14.10.2008 after lapse of 40 days. Such Application, in the given circumstances, could not have been granted by the trial Court in exercise of its powers under section 148, C.P.C., as on the said date the trial Court had became functus officio by virtue of its judgment/decree dated 31.7.2008. The issue that the trial Court had passed a preliminary decree on the said date which became final on 31.10.2008, has no nexus with the condition incorporated in the decree of the trial Court which had specifically stated that in case of non-deposit of balance sale consideration within the stipulated time, the suit shall stand dismissed. Such a decree could have only been challenged by the Appellants in appeal and the Appellate Court was competent to allow an Application of the nature if justifiable grounds were found in such an Application seeking extension of time for deposit of balance sale consideration. The jurisdiction with the trial Court was available only within the stipulated period of 40 days, and the moment this period of 40 days was over, it ceased to have jurisdiction and had become functus officio, in view of the condition incorporated in the decree.

11. The contention of the learned Counsel for the Appellants that the trial Court had passed the final decree after allowing the application of the Appellants, we may observe that such a final decree was nullity in the eyes of law, as the trial Court did not have the jurisdiction to extend time beyond the period fixed by it, that too, on an application after the stipulated time was lapsed. Any decree based on grant of such application is without jurisdiction and no sanctity could be attached to it.

12. We, for the aforesaid reasons, dismiss the appeal and hold that the impugned judgment of the learned High Court is in conformity with law and does not warrant interference by this Court. There shall be no order as to costs. MWA/M-37/SC Appeal dismissed.