SAYED ZAHID HUSSAIN, J.--- Judgment and decree dated 23.10.2000 passed in R.F.A. No.91/1988 when came to be executed before the Executing Court, an objection petition was filed by the petitioners that since the balance price had not been paid within the time fixed, the decree could not be executed. The said petition was dismissed by the learned Executing Court vide order dated 13.7.2004 whereagainst the appeal preferred by the petitioners was dismissed by the learned Additional District Judge, Gujranwala on 18.4.2005. This revision petition has arisen in this context.
2. The learned counsel contends that the Court below have acted illegally and with material irregularity in treating the deposit made by the respondent/decree-holder in time. According to him the extension in time granted by the learned Division Bench of this Court on 14.12.2000 up to 31.12.2000 was "subject to all just exceptions". It is contended that since the said order was passed without notice to the petitioners the extension in time was not legal no that order was absolute/final. It is contended that order dated 14.12.2000 has not been correctly construed by the Courts below. Reference in this context has been made to Ghulam Muhammad and another vs. Lrshad Ahmed and another (PLD 1982 SC 282).
3. The learned counsel for the respondent on the other hand while supporting the concurrent view taken by the Courts below contends that on showing good cause and considering the circumstances, order dated 14.12.2000 was passed by the learned Division Bench and since the deposit was made within the time extended by the Court i.e. 31.12.2000, no adverse inference could be drawn in the matter. It is contended that when the judgment of the High Court (in RFA No.91/1988) was assailed before the Hon'ble Supreme Court of Pakistan the extension granted by High Court on 14.12.2000 was very much in the knowledge of the petitioners, as the copy of C.M.No.1- C/2000 was placed on record of the paper book of CA No.83/2001, therefore, the petitioners could not successfully raise any such objection before the Executing Court. It is contended that even no such application was ever filed before the High Court taking exception to order dated 14.12.2000, which order had become final and the decree, which had attained finality with the dismissal of appeal from the Hon'ble Supreme Court of Pakistan (CA No.83/2001) on 10.3.2004 had got to be executed.
4. The respective contentions have been considered. As mentioned above, the decree for Specific Performance was granted by a learned Division Bench of this Court by accepting R.F.A. No.91/1988 on 23.10.2000 with the observation that "the appellant shall pay the balance amount of consideration to the respondents . Within one month on the receipt of which the respondents shall execute the necessary sale deed." For the extension in time of said period of one month C.M.No.1- C/2000, was moved by the respondent on the grounds:- "(2) While announcing the order/judgment for acceptance of the appeal, further details i.e. about the time for the deposit of balance sale consideration was not announced by this Hon'ble Court.
(3) The applicant applied for copy of the judgment/order on 24.10.2000, which was delivered to him on 12.12.2000.
(4) On receipt of the copy, it transpired that this Hon'ble Court has given one month's time to the applicant to deposit requisite balance sale consideration.
(5) By the time the copy was delivered to the ' applicant, the said time limit had already elapsed.
(6) The applicant is thus left with no remedy but to seek indulgence by this Hon'ble Court by way of enlargement of time for the deposit of balance sale consideration."
That application came up before the learned Division Bench of this Court on 14.12.2000 and following order was passed.
"The time for deposit of sale price is extended up to 31.12.2000. This is subject to all just exceptions.
Disposed of."
5. It is note worthy that the making of such an application before the High Court for extension of time and the passing of above order had also come to the notice and knowledge of the petitioners as the copy of that application formed part of the paper book of CA No.83/2001, despite that no exception was taken to order dated 14.12.2000 by making any application before the High Court nor the matter appear to have been pressed before the Hon'ble Supreme Court of Pakistan as is evident from the perusal of the judgment dated 10.3.2004 dismissing their appeal. In Ghulam Muhammad and another (PLD 1982 SC 282) (Supra), the pre-emptor's appeal qua the sale price was dismissed by the High Court. Alongwith the petition for leave to appeal before the Hon'ble Supreme Court of Pakistan, an application was moved on which a learned Single Judge of the Hon'ble Supreme Court of Pakistan passed order dated 19.1.1976. "Time for depositing the decretal amount is extended by one week i.e. Up to and including the 26th January, 1976 subject all just exceptions." The petition for leave was ultimately dismissed by their Lordships. It may be noted that in compliance of the interim order dated 19.1.1976 the deposit of the balance sale price had been made by the decree-holder on 26.1.1976. At the stage of execution of the decree, the import of order of Hon'ble Supreme Court of Pakistan dated 19.1.1976, granting extension in time "subject to all just exceptions" came to be considered. The matter eventually thus again reached before the Hon'ble Supreme Court of Pakistan, wherein it was observed that "The second question noted earlier for determination also does not need any elaborate discussion. It is not denied by the learned counsel for the appellants that one of the well-known meanings of the phrase "subject to all just exceptions" is that the order which contains this expression, would be effective unless and until the other party who would be affected by such an order takes exception to it and raises objections which are ultimately upheld to be just and valid. We have earlier in this judgment reproduced the order passed by this Court on 19th of January, 1976. The use of the expression "subject to all just exceptions" in the last but one paragraph of the order was in this very sense. The contention raised by the learned counsel that the order dated 19th January, 1976 was subject to the result of the leave to appeal petition; and because it was dismissed, therefore, the interim order should be deemed and considered to have lost all effectiveness on account of the use of expression "subject to all just exceptions" does not find any support from the language used in the relevant order. We, therefore, do not find any force in the argument of the learned counsel in this behalf."
Accordingly the deposit made by the decree-holder within the time extended through an interim order was given effect to. In such view of the matter the contention of the learned counsel for the petitioners does not carry weight.
6. It may also be noted that petitioners were fully conscious of the fact that application for extension of time had been made and also knew about the passing of order dated 14.12.2000 but as is evident from the perusal of the judgment of the Hon'ble Supreme Court of Pakistan dated 10.3.2004 this aspect had either not been pressed before the Hon'ble Supreme Court of Pakistan or in any case deemed to have been rejected. They are thus estopped to re-agitate the matter overagain. To such a situation principle stated in Pir Bakhsh represented by his legal heirs and others vs. The Chairman, Allotment Committee. And others (PLD 1987 SC 145) gets attracted. It was observed with reference to explanation IV to Section 11 of CPC that "this explanation is based on the principle that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided." On this score even the petitioners cannot successfully object the execution of the decree.
7. It is by now well-settled by precedents of the superior Courts that Court can in appropriate cases grant extension of time even while dismissing the appeal. Reference in this context may be made to Bhai Khan vs. Allah Bakhsh and another (1999 SCMR 849) and Nazir Ahmad and another vs. Abdullah (1986 SCMR 342). There is another ruling by the Hon'ble Supreme Court of Pakistan, the principle laid in which may more appropriately be attracted i.e. Allah Ditta and others vs. Lal Din and others (1982 SCM R 642). In the case while accepting R.S.A.No 134/57 the learned Single Judge of this Court decreed the suit of pre-emption subject to depositing the sum of Rs.2000/- on or before 1.7.1966. The pre-emptor/decreeholder applied for the judgment and decree on 24.3.1966, C.L.R. copies were prepared by the office on 22.12.1966 and were delivered on 2.1.1967. The date for making deposit of the pre-emption amount had by then expired. He, thus, applied to the Court for grant of further time for depositing the money. The ground given for such a prayer was that he came to know about the date of deposit on perusal of the copies of the judgment and decree which were delivered to him on 2.1.1967. The extension in time was granted by the High Court which order was maintained by their Lordships of the Hon'ble Supreme Court of Pakistan observing that "Indeed, we feel that if relief was not granted in 'this case the respondents would have been made to suffer for the fault of the officials of the Court in not preparing the decree in time and supplying its copy to the respondent No.1 before 1.7.1966. It is now well-settled that no party shall suffer for the fault of the Court. Learned counsel was unable to point out any rule or law which required the successful pre- emptor to deposit the pre-emption amount even before the decree was prepared and he could be penalized for not complying with the direction of the Court, which may have been orally given, while announcing the judgment in the case. In these circumstances, the respondent No.1 was justified in waiting for the copy of the decree on the terms of which he was required to comply with and for which copy he had applied promptly. If the copy was supplied after the date prescribed for making the deposit had already expired and it was impossible to comply with its terms and this result was brought about by the negligence or mistake of an agency of the Court, this error could be corrected even in.Exercise of the review jurisdiction." Thus the extension in time granted by learned Division Bench was well justified.
In view of the above, I find that the Courts below have not acted illegally nor committed any irregularity in the matter. The revision petition is dismissed accordingly. No order as to costs . Civil Revision .