2003 SCMR 436

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi,
JJ

MUHAMMAD NAZIR and another---Appellants

versus

QAISER ALI KHAN and 4 others---Respondents

Civil Appeal No.328 of 1999, decided on 18th April, 2002.

(On appeal from the. judgment of Lahore High Court, Lahore, dated 3-3-1999 passed in C.R.
1253 of 1998).

(a) Civil Procedure Code (V of 1908)---

----S. 148 & O. XXI, R.10---Specific Relief Act (I of 1877), S.12--Constitution of Pakistan
(1973), Art.-185(2) ---Decree for specific performance of agreement to sell without fixing time
for deposit of remaining sale price---Appellate Court dismissed appeal against decree, but did not
fix such time---Executing Court permitted decree-holders to deposit remaining sale price, which
they deposited with a shortfall of Rs.100 under mistake---Decree-holders on coming to know
about such mistake made application for permission to deposit deficient amount, but same was
dismissed by Executing Court with observation that they had lost right of execution of decree
due to their own conduct---High Court accepted revision petition filed by
decree-holders---Validity---Trial Court or Appellate Court had not fixed time for deposit of
remaining sale price, thus, non-deposit thereof till decision of first appeal would have no legal
consequences---No condition of dismissal of suit for non-deposit or short deposit of remaining
sale price within a specified time had been attached by Trial Court in original decree or by
Appellate Court in appeal against decree---Executing Court in such circumstances would be
competent to grant time for short deposit, if any and would not allow to defeat the fruit of decree
for such reason--Default of short deposit of Rs.100 was not wilful or in violation of any order of
the Court---Grant of permission to deposit the less amount of Rs.100 by enlarging the time under
5.148, C.P.C., by Executing Court would be the proper exercise of discretion---Executing Court
had failed to exercise its discretion in proper manner---Supreme Court dismissed petition for
leave to appeal in circumstances.

Shah Wali v. Ghulam Din PLD 1966 SC 983; Shah Muhammad Khan v. Allah Diwaya PLD
1961 Lah. 743; Muhammad Afzal v. Fazal-ulHaq PLD 1971 SC 162; Hadayat Ullah v. Murad
Ali, PLD 1972 SC 69 and Said Alain Shah v. Jana PLD 1991 SC 360 ref.

(b) Civil Procedure Code (V of 1908)---

----Ss. 2(2) & 48---Limitation Act (IX of 1908), Art. 181---Decree--Pendency of appeal or
revision against decree---Starting point of limitation for execution of such decree---Different
circumstances discussed.

Appeal being continuation of suit decree, in suit would only be finalised on the disposal of
appeal as the decree of Court of first instance would merge into decree of Appellate Court, which
alone could be executed. However, till the time, appeal or revision was riot filed or such
proceedings were pending and no stay order was issued, the decree would remain capable of
execution, but if the decree was under challenge in pending appeal or revision and was not
executable, the decree ultimately passed by the Court of last instance in appeal or revision as the
case may be, would be executed irrespective of the fact that decree of the lower Court was
modified, affirmed or reversed. Thus, if decree was under challenge in appeal and could. not be
executed, the limitation for filing an execution petition would not run against the decree-holder
pending disposal of appeal.

If no appeal was filed against original decree, the decree would attain finality on expiry of period
of limitation provided for filing an appeal and in such a case, the execution petition, if filed
beyond the prescribed period, would be treated as barred by time, but pending disposal of appeal,
the decree would not be deemed to have attained finality, therefore, non-filing of execution in
such a case within prescribed period under Article 181 of Limitation Act, 1908, from the date of
passing of decree by trial Court would not be barred by time and the period of limitation in such
circumstances would be extended.

Decree in present case was finalized on dismissal of regular first appeal by High Court on
15-10-1997 and pending disposal of appeal in which status quo order was passed, decree could
not be executed, therefore, execution petition was filed on 2-3-1998, which was not time-barred
under Article 181 of Limitation Act, 1908. In present case, decree-holder filed execution petition
after disposal of appeal and if the date of decree by trial Court was to be taken as starting point,
the appeal would be barred by time, but since the decree of lower Court was under challenge and
had not yet attained finality, therefore, the limitation for the purpose of filing execution petition
would be enlarged.

The objection of appellants that execution petition having not been filed within three years from
the date of decree, therefore, notwithstanding the pendency of appeal, it would become
time-barred, has no substance.

(c) Civil Procedure Code (V of 1908).

----S. 148 & 151---Enlargement of time for making good deficiency in decretal
amount---Discretion of Executing Court---Scope---Where decree holder under direction of Court
deposited sale price with a small deficiency due to bona fide mistake, Executing Court could
exercise power under 5.148, read with S.151, C.P.C., for grant of further time to deposit short
amount---While making good deficiency In decretal amount, principles of equity and expediency
could be validly attracted in extending time in exercise of discretionary powers under S.148,
C.P.C., in the interest of justice.
Naeem Sarwar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for
Appellants.

Malik Abdul Majid Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record
for Respondents.

Date of hearing: 18th April, 2002.

JUDGMENT

MUHAMMAD NAWAZ ABBASI. J.---This appeal under Article 185(21 of the Constitution of
Islamic Republic of Pakistan, 1973, has arisen out of an execution matter in a decree passed in
the suit for specific performance of the contract.

Qaiser Ali Khan and others, respondents herein, filed a suit for specific performance of
the agreement in respect of land measuring 888 Kanals situated in Village Sangra, Tehsil and
District Kasur, against Muhammad Nazir and Abdul Aziz, the appellants herein, for the sale
consideration of Rs.5,29,000 out of which a sum of Rs.4,76,000 was paid and only an amount of
Rs.53,000 was outstanding. The suit was decreed and the learned Civil Judge at the time of
passing the decree did not fix time for deposit of the outstanding sale consideration. The decree
passed by the trial Court was challenged by the appellants in the High Court through Regular
First Appeal bearing No.35 of 1992. In appeal at admission stage, an order of maintaining the
status quo was also passed. The appeal was subsequently dismissed on 15-10-1997 and the
respondents-decree-holders applied to the Executing Court for grant of permission to deposit the
remaining sale price of Rs.53,000. The appellants during the execution proceedings, brought to
the notice of the Executing Court that the judgment passed by the High Court in Regular First
Appeal was under challenge in the Supreme Court of Pakistan and the Executing Court
postponed execution proceedings temporarily till 1-4-1998 to enable the appellants to produce
the stay order it' any, passed by the Supreme Court, but on failure of the appellants to produce
any such order, the Executing Court vide order dated 13-4-1998 while proceeding further
directed for the deposit of remaining sale price till 25-4-1998. The respondents-decree-holders
deposited an amount of Rs.52,900 in the treasury on 24-4-1999 and produced receipt in the
Court. The appellants moved an application on 25-4-1998 for recall of the order dated 13-4-1998
by virtue of which permission was granted to the respondents-decree holders to deposit the
balance sale price. The respondents on coming to know that instead of ks.53,000 an amount of
Rs.52;900 was deposited, immediately moved an application for permission to deposit the
deficient amount of Rs.100. The appellants at the same time filed another application for
disnussal of the execution petition. The Executing Court disposed of above said applications vide
order dated 23-5-1998 and the application wherein permission was sought by the decree-holders
to deposit the deficient amount of Rs.100 of sale price, was dismissed with the observation that
due to their own conduct, the decree-holders lost the right of execution of the decree and they
could withdraw the amount already deposited by them. This order was challenged by the
respondents through a civil revision in the High Court and a learned Single Judge vide judgment
dated 3-3-1999 allowed the revision petition with the following observation:--
 "12. The learned Civil Judge was, therefore, competent under section 148, C.P.C. to grant
extension in time. Coming to the ground for seeking permission, it is observed that in the
first instance, the Court did not give direction for the deposit of Rs.53,000 and allowed
deposit of Rs.52,900 which led to the mistake of shortfall of deposit by Rs.100. Secondly,
there was a review application, asking for the review of the order of deposit of amount,
and, therefore, while deciding this application, the Court could allow the deposit of
shortfall as there was a prior approval in this regard through a separate application. Till
the review application is decided, the Court could not possibly pass any order on the
Miscellaneous Application for the extension in time to deposit the shortfall of Rs.100.
Similarly it could not be overlooked that the appellant had paid and deposited Rs.52,900
and the deficiency was of Rs.100 which was extremely nominal keeping in view the
amount of sale price. In exercising discretion, the smallness of the amount could not be
over-looked as the interest of justice would have demanded that this short-fall be allowed
to be deposited instead of rendering the entire effort of filing suit, passing decree and
disposing of the appeal in futility. It would be a harsh penalty, if a man who remains
successful up to the stage of Supreme Court and could not deposit a fraction of decretal
amount, particularly because of the act of the Court, and because of the bona fide
mistake, should be deprived of his right to reap the fruit of the decree. All principles of
equity and justice would demand that the application for extension in time to deposit the
shortfall should be allowed. The discretion in this case having been exercised fancifully
and arbitrarily, the impugned order suffers from legal infirmity and jurisdictional error.

13. Resultantly, this revision petition is allowed, the impugned order is set aside,
application for deposit of the shortfall in the decretal amount in the sum of Rs.100 is
granted. The execution petition shall be deemed to be pending. The parties shall appear
before the learned Civil Judge on 15-4-1999 who shall allow the decree-holder/petitioner
to deposit the amount of Rs.100 and proceed to execute the decree."

The appellants being aggrieved of the judgment of the High Court have filed this direct
appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973.

Learned counsel for the appellants while placing reliance on Shah Wali v. Ghulam Din
(PLD 1966 SC 983) has contended that undoubtedly the appeal is the continuation of the suit but
in absence of a specific order, the operation of the decree passed by the Court of first instance is
not automatically suspended on filing of an appeal. The learned counsel submitted that under
Article 181 of Limitation Act 1908 the limitation for filing an execution petition is fixed as three
years whereas in the present case the execution petition was filed after expiry of the prescribed
period of limitation and thus was hopelessly barred by time. The learned counsel argued that
time for filing execution petition would not be enlarged due to the pendency of appeal.

We have considered the contentions of the learned counsel in the light of law laid down
by this Court in the above-referred judgment and find that the said judgment was passed in a suit
for possession through preemption wherein time was fixed for deposit of pre-emption money by
the learned trial Judge with specific direction that in case of non-deposit of the pre-emption
money (within the specified time, the suit would stand dismissed. We may observe that view
taken in the above judgment was that in such events, the deposit tray be made within a
reasonable time from the date of appellate decree as it is more in consonance with reason and
justice which should be preferred so that inconsistencies are avoided and a successful preemptor
is not deprived of fruits of his decree unreasonably.

The learned counsel also relied upon Shah Muhammad Khan v. Allah Diwaya (PLD 1961
Lahore 743) wherein it was held that Court could extend time for deposit of money under section
148, C.P.C. and for noncompliance of terms of decree, it comes incapable of execution and thus
Appellate Court may extend the time for payment of money if validity of decree is challenged in
appeal. The question for examination before the Supreme Court was:

"Whether extension of time could be granted to a successful preemptor on appeal against

an order of refusal to extend the time for depositing pre-emption money when the original
decree was not under appeal."

The Court in the light of circumstance of the said case reached the following conclusion:--

"for the pre-emptor's default in making payment of the correct amount within the time
fixed by the appellate decree, his suit stood dismissed and there was- no question of
extension of the time involved, either by the original Court or by the Appellate Court
thereafter, the appeal or revision from the appellate decree having already been
dismissed, therefore, the appeal was allowed and order passed by the High Court was set
aside, and it was held that the respondents suit stands dismissed, in terms of the decree of
the Court of appeal."

In the above said case the Appellate Court had fixed time for deposit of the pre-emption money
with the observation that the suit would be dismissed in case of default in the payment of
pre-emption money within the time given while in the present case, no such time was fixed either
by the trial Court or the Appellate Court for deposit of the remaining sale price, therefore,
non-deposit of the remaining sale price till dismissal of Regular First Appeal by the High Court
would have, no penal consequence. The respondents immediately on dismissal of the appeal by
the High Court filed an execution petition and also sought permission from the Court of first
instance for deposit of the remaining amount for execution of the decree, which was not
deposited pending disposal of appeal in the High Court for the reason that due to the status quo
order the execution of decree was not possible, therefore, the Court concerned allowed the
necessary permission. The objection of the appellants that the execution petition having not filed
within three years from the date of decree, therefore, notwithstanding the pendency of appeal it
would become time-barred, has no substance. The appeal being continuation of suit, the decree
in the suit would only be finalized on the disposal of appeal as the decree of the Court of first
instance would merge into the decree of Appellate Court which alone could be executed.
However, till the time appeal or revision was not filed or such proceedings were pending and no
stay order was issued, the decree would remain capable of execution but if tile decree was under
challenge in pending appeal or revision and was not executable, the decree ultimately passed by
the decree of the Court of last instance in appeal or revision as the case may be. would be
executed irrespective of the fact that the decree of the lower Court was modified, affirmed or
reversed. Thus if a decree is under challenge in appeal and cannot be executed, the limitation for
filing an execution petition would not run against the decree-holder pending disposal of appeal.
The decree in the present case was finalized on dismissal of Regular First Appeal by the High
Court on 15-10-1997 and pending disposal of the appeal in which status quo order was passed,
the decree could not be executed, therefore, execution petition was filed on 2-3-1998 which was
not time-barred under Article 181 of the Limitation Act 1908. In the present case the
decree-holder filed execution petition after disposal of appeal and if the date of passing decree by
the trial Court was to be taken as starting point, the appeal would be bared by time but since the
decree of the lower Court was under challenge and had not yet attained finality, therefore, the
limitation for the purpose of filing execution petition would be enlarged. It may be seen that if no
appeal is filed against the original decree, the decree shall attain finality on expiry of the period
of limitation provided for filing an appeal and in such a case, the execution petition if is filed
beyond the prescribed period, would be treated as barred by time but pending disposal of appeal,
the decree would not be deemed to have attained finality, therefore, non-filing of execution
petition in such a case within prescribed period under Article 181 of the Limitation Act, 1908,
from the date of passing of the decree by the trial Court would not be barred by time and the
period of limitation in such circumstances will be extended.

The law laid down by this Court in Shah Wali v. Ghulam Din (PLD 1966 SC 983) would be of
no help to the appellants as the said case is distinguishable on facts from the present case.

The second contention raised by the learned counsel related to the grant of time to decree-holder
for deposit of the remaining sale-price and grant of further time for such purposes under section
148 of C.P.C. It has been argued by the learned counsel that if the decree-holder satisfies the
condition regarding the deposit of outstanding sale price, the decree would become operative but
if a default is committed in payment of the said amount in part or full as the case may be, the
decree would become ineffective. The short ansv)er would be that the Executing Court in such
exceptional situation in a case in which the decree-holder under the direction of the Court
deposits the sale price with a small deficiency due to the bona fide mistake, can exercise the
power under section 148, C.P.C. read with section 151, C.P.C. for grant o€ further time to
deposit the short amount. We, may observe that for making good deficiency in decretal amount,
equity and expediency can validly be attracted in extending time in exercise of discretionary
powers under section 148, C.P.C. in the interest of justice.

In the case in hand, no such condition of dismissal of the suit for non-deposit or short deposit of
remaining sale price within a specified time was attached by the trial Court in the original decree
or the High Court in the appeal against the decree and thus in such circumstances. the Executing
Court would be competent to grant time for short deposit if any and would not allow to defeat the
fruit of decree for such reason.

Reference can be made to the following case-law on the subject:---

Shah Wali v. Ghulam Din (PLD 1966 SC 983) Muhammad Afzal v. Fazalul-Haq PLD
1971 SC 162), Hadayat Ullah v. Murad Ali (PLD 1972 SC 69) and Said Alam Shah v.
Jana (PLD 1991 SC 360).

The default of short deposit of Rs.100 was not wilful or in violation of any order of the Court,
therefore, it would not operate bar the power as an Executing Court failed to exercise the
discretion in the proper manner while holding that respondents due to short deposit of Rs.100 .
could not enforce the decree. 'this is to point out that the grant of permission to deposit the less
amount of Rs.100 by enlarging the time under section 148, C.P.C. by the Executing Court would
be the proper exercise of discretion.

For the foregoing reasons, we while upholding the judgment of High Court passed in its revision
jurisdiction, dismiss this appeal with no order as to costs.

S.A.K./M-568/S

Appeal dismissed.