1994 PLP 2002 (SCMR)

Rana Abdul Rahim, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Respondents Nos. 1 to

4. Respondents Nos. 5 to 11: Ex Parte. Date of hearing: 20th January, 1991. MUHAMMAD AFZAL LONE, J.‑‑‑This is an appeal by a vendee against whom a pre‑emption suit brought by the respondents' predecessor‑interest, namely, Karam, was decreed by the trial Court on 4‑12‑1967, on the following terms: "A decree for possession through pre‑emption of the suit land is passed in favour of the plaintiff and against the defendant on payment of Rs.12,

000. This amount to which 1/5th already deposited in Court shall be credited to be deposited in Court till 15‑1‑1968 otherwise the suit shall stand dismissed with costs. Costs to follow the event." There is no dispute that the decree‑holder had already paid into the Court a sum of Rs.2,400 as 1/5th of the probable value of the suit land, and thus upon the terms of the decree was required to deposit Rs.9,600 to make up the figure of Rs.12,

000. He, however, on 15‑1‑1968 deposited a sum of Rs.9,

500. Obviously this amount fell short of the requisite amount by Rs.100. The controversy between the parties cropped up when the decree‑holder applied for execution of the decree and payment of costs of the suit, and on the other hand the appellant moved 'the Executing Court to treat the suit having been dismissed on account of the decree‑holder's failure to deposit the full amount and consequently reject the execution application.

2. The Executing Court took the view that the costs had not been awarded to the decree‑holder outright, but were dependent on the result of the suit which on its turn was pegged on the terms of the decree which, necessitated the deposit of Rs.12,000 before the target date, of course subject to adjustment of the amount already paid into the Court by the decree‑holder. Relying on Nalraju Lakshimi Venkayaman Rao Gabu v. Meka Venkataramiah Appa Rao Bahadur Garu and others (Vo. 47, 1918 Indian Cases 862), the Executing Court maintained that the expression costs to follow the event means dependant on result or outcome of the proceedings. In this 'view of the matter, the Executing Court went on to hold that in case the decree‑holder had deposited a sum of Rs.12,000 before 15‑1‑1968, result of the litigation would have been in his favour, entitling him to the costs, failing which the consequences were against him and his suit stood dismissed with costs. It was further held that as the decree‑holder, failed to deposit the entire amount in. accordance with the conditions of the decree, he could not ask for its execution and claim the costs. Upon this finding, the learned Executing Court dismissed the execution application.

3. On appeal by the decree‑holder, the learned Additional District Judge disagreed with the Executing Court. In his opinion, the deposit of pre‑emption money in the Court, after deduction of the costs, by a pre‑emptor, whose suit is decreed with costs is sufficient compliance with the decree. he held that the costs payable to the decree‑holder had been fixed at Rs.552, he would have been well within his right, if after adjusting this amount, he had deposited Rs.11,448, but as against this figure he paid into the Court a sum of Rs.11,

900. In these circumstances, according to the first Appellate Court, the decree holder fully complied with the terms of the decree. Accordingly, his appeal was allowed and a direction given to the Executing Court to proceed with the disposal of the execution application on merits.

4. Against the acceptance of the decree‑holder's appeal, the vendee -appellant preferred a second appeal in the High Court. It is to be noticed that in Muhammad Afzal and 8 others v. Haji Fazal‑ul‑Haq and another (PLD 1971 SC 162), it has been laid down by this Court that a pre‑emption decree‑holder can avail of the doctrine of set‑off and deduct the cots from the purchase money which he had to deposit into the Court under the decree passed in his favour. On the strength of this dictum, the learned Single Judge came to the conclusion that the amount deposited by the decree‑holder was less by Rs.100 and since the costs awarded to him far exceeded that amount he could claim set‑off and adjust Rs.100 against costs payable to him. It was thus, held that the deposit made by the decree‑holder did not fall short of the requisite amount. Therefore, the appeal of the vendee was dismissed. This dismissal is under challenge before us in this appeal.

5. There can be no cavil with the proposition that a pre‑emptor in whose favour a decree with costs is passed is entitled to adjust the costs against the purchase money to be deposited by him in the Court. The issue, however, before us is, as to whether upon the terms of the decree costs have been unequivocally awarded to the decree‑holder or his right to costs is dependant on some other factors. The answer to this issue hinges on the import of the expression "costs to follow the event", the term "event" means the "effect" the "conclusion" or "result." Reference in this connection may be made to the Madras High Court's judgment relied upon by the Executing Court. It is thus, evident that award of the costs to the decree‑holder was contingent upon the result of the suit. The decree being conditional, for the success of his suit, the decree‑holder in compliance with the terms of the decree had to deposit Rs.12,000 as purchase money in the Court. It was after the fulfilment of this condition of the decree that he qualified for payment of costs. But, on account of decree‑holder's failure to deposit full amount the eventuality entitling him to the costs did not arise. There was thus no occasion to claim set‑off of the costs against the purchase money. It is discernible from the impugned judgment that the High Court did not advert to this aspect of the case. It is also noteworthy that in the execution proceedings the decree‑holder himself applied to the Executing Court for recovery of full amount of the costs of Rs.552.21 and accordingly, warrant for attachment of this amount was also issued. On these premises it was urged on behalf of the appellant that the decree‑holder negatived his claim as to the set‑off of the costs against the purchase money. This contention is not without merit. For all these reasons, this appeal is accepted, the judgment of the High Court is set aside and that of the trial Court restored, leaving the parties to bear their own costs. A.A./S‑816/S Appeal accepted.