P L D 1978 Lahore 438 (PLP)

2. The order of this Court was further challenged before the Supreme Court by the appellants in Civil Petition for Special Leave to Appeal No 61/

76. Alongwith that they filed a petition for suspension of the High Court judgment but it is stated that while no interim relief was granted on that day, the main petition was ordered to be heard at Lahore. The appellants again applied for extension of time on which It was directed on 19th January 1976 : "Time for depositing the decretal amount is extended b' one week he. up to and including the 26th of January 1977, subject to all just exceptions."

3. The petition for special leave to appeal came up for hearing on 28th January 1976, before the Supreme Court when it was dismissed with the following observations : "Learned counsel, however, submitted that one of the petitioners was minor and unless time extended for the deposit of the balance of the sale price, his interests which ought to be protected by the Court, will be gravely prejudiced. We regret that this is not possible unless leave is granted and the appeal is heard on merits. But there is hardly any ground for grant of leave. That being so tire petition is dismissed." It is stated by the learned counsel that the deposit had is fact been made on 26th January 1976, and that their counsel was not in the know of that fact when he made a request for further extension.

4. The appellants then applied for the execution of the decree before the trial Court. The respondents objected to that request and prayed for its dismissal on the ground that the appellants bail made default in the payment of the decretal amount by the due date. The learned executing Court maintained the objection on the short ground that as the order dates 19th January 1976, had been made 'subject to all just exceptions' it became ineffective as and when the Supreme Court refused to grant leave to appeal. The execution application was dismissed on 18th September 1976. The appellants took an appeal before the District Judge but it was returned on 22nd January 1977, to be filed in this Court and hence the present appeal.

5. It is contended by the learned counsel that as the payment had actually been made within the tine extended by the Supreme Court, the refusal an the part of the learned Civil Judge to execute the decree was unlawful. The construction placed by the learned Court on the term 'subject to all just exceptions' is challenged and it is submitted that extension in time granted was not conditional on the grant of leave to appeal. The learned counsel for the respondents, however, submitted that the extension by the Supreme Court was subject to grant of special leave to appeal and that as the same was not granted, the previous extension shall also be of no avail. Reliance was placed on a few precedents which I will be discussing hereunder.

6. The record of the case hay not been received as yet. However, the photo copies of the two orders of the Supreme Court placed on the record are admitted by the parties. It is also not denied that the decretal amount had in fact been paid on 26th January 1976. This appeal can, therefore, be decided on the available record. It is to be noted that a decree-holder under a pre-emption suit has to pap the decretal amount within the time specified in the decree under Order XX, rule 14, C. P. C. or extended by the appellate Court. The only question that arises in the case is whether the time extended by the interim order of the Supreme Court till 26th January remains operative for the benefit of the appellants even through their petition foe special leave to appeal had been dismissed subsequently. The case of Robert Hercules Skinner v. Lt. James R. R. Skinner (A I R 1943 All. 202), bears no relevance to the issue joined in this case. It was held in that case by a Division Bench that where the possession of a property had passed to a propo3ed purchaser because of a decree, the possession should be restored on reversal of the decree.

7. The second case is of Messrs Ansari Brothers v. Holy Trinity Church Trust (P L D 1971 S C 700). In that the Supreme Court considered the effect of an order of the Rent Controller directing the tenant to deposit the arrears of rent and further rent by specified dates. That order was stayed by the appellate Court but stood revived on the dismissal of appeal. The time allowed for deposit of arrears of the rent by the Rent Controller was 34 days out of which the tenant had availed 31 days before he got the stay order. Applying t1 Fe rule of 'reasonable time' as laid down in a previous case of Shah Wali v. Ghulam Din (P L D 1960 S C 983) their Lordships allowed the remaining three days after the dismissal of appeal. Upon that principle, I see, that though the appellants had already availed the entire time yet the decretal amount having been paid within the period extended by the Supreme Court, there was no default.

8. The other case of Supreme Court is that of Ishtiaq Ahmed v. Bakhshaya (1976 S C M R 420). in that the time allowed by the trial Court for the payment of pre-emption money expired on 24th February 1968. On the same day, the District Judge, is appeal, allowed the pre-emptor to furnish security. On 19th April 1969, the pre-emptor's appeal was dismissed. The interim order made by the appellate Court suspending original decree with regard to the deposit of amount, therefore, came to an end. The appellate Court passed no specific order to extend time further. The amount was deposited on 6th June 1969. It was held by the Supreme Court that the preemptor should have deposited the amount within a reasonable time and that as there was no explanation for the delay of one month and 18 days, the High Court rightly held that the District Judge granted extension without applying his mind. It will be seen that though in that case th3 preemptor bad already availed the entire time, the Supreme Court would have allowed him further reasonable extension if he had given some explanation for the delay.

9. The last case cited was of Asutosh Goswami v. Upendra Prasad Mitra ((1917) 38 1 C 17). It vas held in it that it is general rule that on the reversal of a judgment, order or decree, all connected or dependent judgments op orders fall with it, specially judgments subsequently entered and dependent thereupon. This rule however, does not operate by implication to set aside a distinct and independent judgment or proceeding though it forms a part of the same litigation. On the question whether a judgment or order is dependent, ancillary or accessory to another judgment, to was observed that it must be determined from the matter and scope of the proceedings.

10. In the case in hand the amount in question had bean paid within the time allowed by the order of the Supreme Court. The question of allowing further reasonable time, therefore, did not arise. The plea, that the interim order should fall with the order dismissing petition for special leave to appeal, is not available in the case as the interim orde4 was a distinct and independent order. In a similar situation the Supreme Court in the two cases noted above, did not object to the time allowed by the appellate Court, at the interim stage, though finally the appeals failed. ,the phrase 'subject to all just exceptions' also did not deprive the appellants of the extension already granted. It was not conditional on the grant of leave to appeal but was only open to any valid objection that could be raised before the Supreme Court against its grant.

11. The objection of the respondents that as the appellants did not pay the costs alongwith the decreed amount, this appeal merits dismissal, is misconceived as according to the trial Court as well as the High Court, the costs were to be borne by the parties.

12. To sum up, it is quite clear that the appellants did pay up the pre-emption money by the date extended by the Supreme Court. There was thus no default. The executing Court, in the circumstances, should have executed the decree. The appeal is, therefore, accepted. The order of the executing Court is set aide. The executing Court may again ascertain that the decretal amount had been paid up to and including 26th January 1976, and execute the decree in accordance with lacy. The parties shall bear their own costs. S. A. H.?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.