1984K35 (PLP)

This second appeal under section 100, C. P. C. is directed against an order dated 21-2-1974 passed by the learned Additional District Judge. Hyderabad, in Civil Appeal No. 128 of 1973. :t has arisen in the following circumstances :-

2. The appellant Muhammad Munawar filed a pre-emption Suit No. 27 of 1967, in respect of Survey Nos. 184-A, B and C, situated in Deh Kathri, Taluka Tando Allahyar, District Hyderabad, in the Court of Civil Judge, Tando Allahyar. The suit was decreed on 18-7-1969 subject to - payment of purchase money Rs. 4,

000. The respondent Haji Ali Muhammad Shah preferred an Appeal No. 201 of 1969 in the District Court, Hyderabad. The appeal was dismissed for non-prosecution on 25-10-1971. The appellant filed Execution Application No. 10 of 1972 on 30-5-1972 in the trial Court. The execution application was admitted on the same day and the appellant was directed to deposit in Court Rs. 4,000 being the purchase price of the pre­empted land. The appellant deposited the sum of Rs. 4,000 on 7-9-1972. The respondent resisted the execution application on the grounds that purchase money had not been deposited within reasonable time and that the matter bad been settled by the parties outside the Court. The learned Civil Judge, Tando Allahyar, dismissed the execution application, by the order dated 24-4-1973, on the ground that the purchase money had not been deposited within reasonable time. The respondent herein preferred Civil Appeal No. 128 of 1973 in the District Court, Hyderabad. The appeal was heard and allowed by the Second Additional District Judge, Hyderabad by judgment dated 21-2-1974. This appeal has been filed against the verdict of the Addi­tional District Judge, Hyderabad.

3. The controversial issue has arisen from non-compliance of the provisions of rule 14 of Order XX of Code of Civil Procedure which provides that where the Court decrees a claim to pre-emption and the purchase money has not been paid in Court, the decree shall specify a day on or before which the purchase money shall be so paid, and also direct that on payment in Court of such purchase money, together with the cost (if any) decreed against the plaintiff, on or before the day specified for payment of the purchase money, the defendant (the pre-emptor) and in case the purchase money of the case is not so paid, suit shall be dismissed with costs. In the instant case, the purchase money was not deposited in Court during pendency of the suit nor did the trial Court specify any time for payment of the purchase money. The appellate Court had no occasion for making such an order as the appeal was dismissed for non-prosecution. It was only at the stage of the execution application in the trial Court that an order was passed for payment of purchase money but no period was specified for the payment thereof. The purchase money was deposited on 7-9-1972 i.e. after one m inth and eight days of the order made therefor. The learned executing Court considered this period as unreasonable delay, whereas the learned First Appellate Court held the view that the payment had been paid within reasonable time.

4. The 6 learned counsel for the appellant has urged that the decree was passed on 18-7-1969 and the first appeal was filed on 12-8-1969 and it was dismissed for non-prosecution on 25-10-1971 and the execution applica­tion was filed on 30-5-1972 and the purchase money was deposited on 7-y-1972 and hence the payment could not be considered to have been made within reasonable time. He has placed reliance on P L D 1966 S C 983, 1976 S C M R

420. P L D 1979 Lah. 766 and P L D 1979 S C

917. On the other hand, the learned counsel for the respondent has contended that the trial Court did not specify any day for the payment of purchase money and the purchase money was deposited in the Court within reasonable time of the order made in the execution application for the payment thereof. He has relied upon P L D 1972 S C 69, 1978 Law Notes (S C) 746 and AIR1923Al1.516.

5. Since no day was specified by the trial Court for the payment of the purchase money, the only question for consideration is whether the deposit of the purchase money on 7-9-1972 was made within reasonable time. It is evident from the chronological history of the proceedings traced above that the decree in favour of the respondent was passed on 18-7-1969, the first appeal was filed on 12-8-1969 and it was dismissed for non-prosecution on 25-10-1971, the execution application was filed on 30-5-1912 i.e. after more than seven months of dismissal of the appeal, and the purchase money was deposited only on 7-9-1972 i.e. after one month and eight days of the filing of the execution application and the order made by the executing Court for its deposit. The time that elapsed between the passing , of the decree on 18-7-1969 and the day of the deposit of the purchase money viz. 7-9-1972 was three years one month seventeen days. The respondent did not deposit the purchase money during that much period. Of course, the appellant had filed an appeal on 12-8-1969, against the judgment and decree in favour of the respondent and the appeal was dismissed for non-prosecution on 25-10-1971 but, that fact did not absolve the respondent of his obligation under the decree to pay the purchase money within reason­able time. Even if he had laboured under a misconception that the pendency of the appeal had suspended the requirement of his making payment of purchase money, no explanation was furnished for not making payment of the purchase money from 18-7-1969 when the decree was passed in his favour to 12-8-1969 when the appeal was filed, and again from 25-10-1971 when the appeal was dismissed for non-prosecution till 30-3-1972 when the execution application was filed, and finally from 30-5-1972 when the specific order for payment of the purchase money was made to 6-9-1972 upto which the purchase money was not deposited. Obviously, the deposit was made after in- ordinate delay. A similar question of default in payment of purchase money in a pre-emption case considered by the Supreme Court in a case Shah Wali v. Ghulam Din illyas Gaman and another (P L D 1966 S C 983) and it was observed by their Lordships that such situation may be resolved by considering whether the compliance of the order of the Court had been made within reasonable time. Delay in -making deposit of purchase money was also considered by the Supreme Court in another pre-emption case Haji lshtiaq Ahmed and another v. Rakhsaya and others (1966 S C M R 420) and unexplained delay of one month and eighteen days was held uncondonable. The cases relied upon by the learned counsel for the respondent are not apt to the question of delay involved in this matter. In the case reported in Malik Hidayatullah and others v. Murad Ali Khan (P L D 1971 S C 69) the question considered was whether the trial Court had suo motu powers to extend time for making deposit of a part of purchase money under the provisions of Punjab Pre-emption Act. A question of extension of time for deposit of pre-emption money was considered in the case of Ghirdari Singh and another v. Bhopal Singh and others (A I R 1923 All. 516). In the third case cited as Bashir Hussain v. Mst. Fatima Baf (1978 Law Notes (S C) 746) it was held that section 148, C. P. C. gives discretion to Court including appellate Court to extend time to deposit pre-emption money if the default is neither intentional nor wilful. In the instant case the respondent did not approach any Court for obtaining time for making payment of purchase money in pursuance of directions of :B the trial Court given on 18-7 1972 and the payment was made after more than three years. It, therefore, emerges out from the aforesaid facts an the Supreme Court Authorities referred to above that the respondent has failed to deposit purchase money within reasonable time and he, thus, lost benefit of the pre-emption decree in his favour.

7. For the reasons recorded above, the appeal is allowed and the judgment of the learned Second Additional District Judge, dated 21-2-1974, is set aside and the order of the learned Civil Judge, Tando Allahyar, dated 24-4-1973, is restored. The parties are left to bear their own costs. as. z. M. Appeal allowed.