' MAULVI ANWARUL HAQ, J.---On 19-8-2000 the respondent filed a suit against the appellant for recovery of Rs,1,35,000 under Order XXXVII, C.P.C. According to the plaint, the parties did some business wherein the respondent made investment. The venture did not prove profitable and the respondent left the business and called upon the appellant to render accounts. Upon rendition, a sum of Rs,1,35,000 was found due and the appellant executed a pro note on 20-8-1997 promising to pay the amount on demand. The amount had not been paid despite demand and the said decree was accordingly prayed for. The appellant was served in the manner prescribed. He failed to put in appearance and was proceeded against ex parte and an ex parte decree was passed on 30-1- 2001. Thereafter, he filed an application for setting aside of the ex parte decree. He also filed an application for grant of leave to appear and to defend the suit. This application was allowed with consent of the counsel for the respondent on 5-12-2001. The decree was set aside and leave was also granted to defend the suit subject to furnishing of security. The terms were complied with and a written statement was filed. In the written statement, the appellant objected to the maintainability of the suit and limitation. On merits, he admitted that a business was done by the parties but he pleaded that he had three shares and the appellant had one share. No account was rendered. The pro note was stated to be fictitious and having not been executed by him. Following issues were framed by the learned trial Court:--
(1) Whether the suit is not maintainable and this Court lacks jurisdiction to deal with the same in view of preliminary objections Nos.1 and 5 of the written statement? OPD
(2) Whether revenue-receipts of appropriate value are not affixed on the pro note? If so, its effect?
OPD
(3) Whether the suit is barred by time? OPD
(4) Whether the defendant executed the pro note dated 20-8-1997 along with receipt for consideration and is liable to pay a sum of Rs,1,35,000? OPP.
(5) Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 13-5-2002 all the issues were answered in favour of the respondent and the learned District Judge, Muzaffargarh, decreed the suit with costs.
2. Malik M. Latif Khokhar, Advocate/learned counsel for the appellant contends that there are serious discrepancies in the statements made by the witnesses and as such they were not believable. The precise contention is that the evidence on record has been misread. Sardar Manzoor Ahmad Khan, Advocate/learned counsel for the respondent, on the other hand, contends that the case as pleaded had been proved by his client and the statements of his witnesses get support from the statement made by the appellant himself.
' I will be dealing with the matter pertaining to the auction-purchaser later.
3. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. Now, I have already noted above the respective pleadings. Now the pro note is Exh.P.1., it is dated 20-8-1997. Khadim Hussain and Muhammad Abid are the attesting witnesses of the receipt Exh.P.2. Both of them have stated that the pro note and the receipt, were executed by the appellant in their presence. This was done after a rendition of accounts was made and a sum of Rs,1,65,000 was found due. A sum of Rs,30,000 was paid in cash by the appellant to the respondent while for the balance he promised to pay on demand and executed the pro note and the receipt. The respondent appeared as P.W.1 to state his case.
4. Now the serious discrepancy being pointed out by the learned counsel is that whereas the respondent has stated that the revenue stamps affixed on the documents Exhs.P.1 and P.2 were brought by him while P.W.2 has stated that these were brought by the appellant and that P.W.2 has stated that he signed the document first whereas P.W.3 has stated that he was the first one to sign the document.
5. To my mind the said testimony recorded in the year 2002 regarding the document executed in the year 1997 can hardly be stated to be discrepant. On the other hand, the learned Additional District Judge has very correctly relied upon the judgment of the Hon'ble Supreme Court of Pakistan Court in his judgment wherein, what is being described as a serious discrepancy, has been termed as a natural variation giving a touch of truth to the statement and not otherwise.
6. Now Muhammad Younas Rehman appellant has entered the witness-box as D.W.1 to rebut the said evidence. He stated that the parties did business jointly and this was of an Ice Factory. He was in need of money and the respondent invested Rs,1,00,00. The profit and loss was to be shared in 75% and 25%. Now he proceeded to state that the accounts were with the respondent who did not render the same and declared loss. He, of course, denied having executed Exhs.P.1 and P.2. In his cross-examination, he admitted that he owns the said Ice Factory wherein he works along with his sons. In his cross-examination, he admitted the turmoil in which the affairs of Ice Factory were and further admitted that he had taken money from the respondent to run the Ice Factory. He further admitted that a Punchayat was convened and Khadim Hussain P.W. Was present in the same.
7. Having thus, examined the records, I do not find any misreading or non-reading of evidence on record by the learned trial Court. The findings on the main Issue No,4 are confirmed. The findings on other issues have not been questioned before me.
8. Now during the pendency of this R.F.A. Property belonging to the appellant i.e, an Ice Factory was sold in execution of the decree. Now according to the contents of C.M. No,466 of 2003 filed by the auction-purchaser through Mr. Hameed Azhar Malik, Advocate, as also certified copies of the records appended with C.M. No,331-C/903, the sale took place on 14-1-2003 for a price of Rs,8,45,000. The auction-purchaser made a deposit of Rs,2,15,000 on the same date. Now the balance amount of Rs,6,30,000 was admittedly paid on 11-3-2003 vide challan Annex:"A/1" with C. M.
No,466 of 2003.
9. I called upon the learned counsel for the auction-purchaser to state as to why the balance was deposited with so much delay. He has nothing to say. Now under Order XXI, rule 84, C.P.C., a person declared to be a purchaser has to make a deposit of 25% of the amount of purchase money immediately upon the said declaration. Order XXI, rule 84, C.P.C. Lays down in mandatory terms that the full amount of the purchase money payable shall be paid by the purchaser into Court before the Court closes on the 15th day from the sale of the property. It will, thus, be seen that the purchaser was required to deposit the balance amount of purchase money on 29-1-2003 whereas admittedly he made the deposit on 11-3-2003. Now Order XXI, rule 86, C.P.C. Provides the consequences of the said default. According to this provision of law, in case of default in payment within the period mentioned in rule 85 of Order XXI, C.P.C.:--
(i) If the Court thinks fit, it may forfeit the deposit made, after defraying the expenses of the sale; and
(ii) the property shall be re-sold and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold.
10. It will, thus, be seen that by operation of said law, upon failure of deposit of the full amount of purchase money within the time prescribed by rule 85 the property was to be re-sold in terms of rule 86 of Order XXI, C.P.C. There is, thus, no sale in the eye of law in favour of the auction-purchaser and under the same provision of law, he has acquired no right whatsoever in the said property.
11. The learned counsel for the auction-purchaser then tried to argue that the R.F.A. Is barred by time. Notwithstanding the fact that this objection would not be available to the said intervener. I have checked up the records. I find that the judgment was announced by the learned trial Court on 13-5-2002. The copy was applied for on 15-5-2002. It was prepared on 16-5-2002. The date of delivery is 23-5-2002. Now the R.F.A. Was filed in this Court on 7-9-2002 and was put up before Court after its re-opening after the Summer Vacations on 11-9-2002. It is but obvious that the limitation expired somewhere in August, 2002 when the Court was closed for Summer Vacations and its filing upon the reopening of the Courts in the year 2002 would be within time in view of the provisions of section 4 of the Limitation Act, 1908, the objection accordingly is rejected.
12. Before parting with this judgment, I may note here that under orders of this Court, the appellant/judgment-debtor has deposited the entire decretal amount as also the costs of the suit and the costs for sale in the learned Executing Court. The decretal amount and the costs of the suit shall accordingly be released and paid to the decree-holder/respondent against receipt upon the identification.
13. The R.F.A. Is accordingly dismissed without any order as to costs.
14. The trial Court records be remitted back immediately.