' This revision is directed against the order of the Additional District Judge, Jhang dated 11-6-1979 accepting the appeal against the order of the Civil Judge, Jhang dated 19-6.1978 by which the objection of the petitioners in the execution proceedings that the decree was not executable able was accepted.
2. Facts relevant for the disposal of this revision are that on 17-10-1972 the respondents filed a suit for the possession of Plot No, 79/11M, Basti Atawali, Jhang Saddar on the basis of title. The petitioners were shown to be trespassers and the respondents claimed themselves to be the transferee from the Settlement Department under P. T. D. No, 10024 dated 3rd February, 1979. The petitioners filed written statements and claimed themselves to be the tenants entitled to protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. A conditional decree was passed by which the deficit court-fee was to be made up by 26-10-1974. It was further held that in case the deficiency in court-fee was not made up by the date the claim shall be deemed to be automatically rejected. The first appeal filed by the petitioners was dismissed on 22-9-1976 and the second appeal on 3-7-1977 by this Court. The respondents made up the deficiency on 11-12-1974 by tendering the same in Court under an application on which the learned trial Court did not raise any objection and the deficit court-fee was ordered to be filed. The precise objection of the petitioners was that the decree dated 24-9-1974 being conditional on the payment of the court-fee of Rs, 71 by 26.10-1974 and the court-fee having not been paid by this date the plaint stood automatically rejected and therefore had become un-executable. On the other hand the case of the respondents is that although no application under section 148, C, P. C. Was made, since the learned trial Court had entertained the application for the acceptance of the deficit court-fee therefore it would amount to the implied condonation of delay.
3, It is apparent for these facts that both the parties rely on the conditional decree and the fact that the deficiency in the court-fee was not made up within the time fixed by the Court. It is also not in dispute that no application under section 148, C. P. C. Was made for the extension of time specified in the decree, Now therefore, the first question that falls for determination is whether the Court was legally competent to pass a conditional decree. It was held in a case reported as Muhammad Nasrullah v. Muhammad Ayaz (1) that a Court at' the fag-end of trial passing a decree subject to the condition that suit shall stand dismissed with costs and the plaint stand rejected if court-fee was not paid within the time did not commit any illegality and the order passed by the Court was held to be valid. However, it was observed by Mr. Justice Aftab Hussain in this judgment that issue about court-fee should be treated as a preliminary issue and it is also advisable to decide all such issues before the issues on merits. This was also a pre-emption case and the conditional decree subject to the payment of the deficit court-fee by a certain date had been challenged on the ground that the Court after the passing of the decree had become fungus officio and could not continue the process of recovery of court-fee. This argument was held to be not attracted to such a case and the above observations were made after elaborately discussing the entire case-law on the point. The passing of the conditional decree therefore in the light of this judgment is held to be valid and not suffering from any illegality.
4. The next point that arises for consideration is whether a decree the terms of which have not been complied with is capable of execution. In Shah Muhammad v. Allah Dewaya and others (2) it was held in a (1) PLD 1975 Lah. 886 (2) PLD 1961 Lab. 743 pre-emption suit in somewhat similar circumstances that the non-compliance with the terms of decree, it becomes incapable of execution. This was a case in which the trial Court had passed a decree on the payment of Rs, 20,853.50 within a specified time but the plaintiff deposited four annas less than the requisite amount. However in this case the time was extended by the appellate Court on the ground of the trial Court being equally responsible for the shortage in the deposit. The portion of the judgment relevant on the point is reproduced below :- "It is, no doubt, true that after the trial Court has passed a decree it cannot, by modifying that decree extend the period of deposit, under section 148, C. P. C. It is also obvious that if the terms of the decree are not complied with and the pre-emption money is not deposited in time, the decree becomes incapable of execution and the decree-holder cannot obtain possession of the property in dispute. The position however, would be different where the validity of the decree itself is being challenged and an appeal to that effect is filed in time,"
In the present case therefore on account of the non-payment of tilt court-fees within the time prescribed by the decree, it has become incapable of execution.
5. Now the only point that is left for determination is whether by the submission of the deficit court- fees that is Rs, 71 in Court after the expiry of the period fixed by the decree had the effect of impliedly extending the time so as to make the decree executable. The learned counsel for the respondents has relied on a Division Bench Judgment of this Court reported as National Bank of Pakistan v. Malika PukhraJ, etc. (I). It was held in this case that an oral prayer was sufficient to seek extension of period under section 148, C. P. C. And time for making good the deficiency in court-fee in a money suit could be extended when there was nothing on the record to establish any contumacious non-compliance of the Court's order on presence of any positive mala fide. The facts of the case were that the appellant Bank had filed a suit for the recovery of Rs, 28,690.75 and the trial Court directed the Bank on 9-3-1971 to make good the deficiency in court-fee (Rs, 158.12) within fifteen days. The Bank however, filed the deficit court-fee along with the application on 30-3- 1971. The Court's order appearing on the application and the court-fee stamp to the effect "file" an objection had been taken by some of the respondents that deficiency in the court-fee having not been made good within the period granted by the Court and therefore the plaint was liable to he rejected under Order VII, rule 11(c), C. P. C. Which objection was upheld and the plaint was rejected.
It was in these circumstances that the following observations were made :- "The order of the Court of 30th March, 1971 saying 'file' is capable of two interpretations. Either the Court condoned the delay of six days implied!), and entertained the court-fee as having been filed within time as no express order is necessary for extension of time which may even be implied from the circumstances (see Boodh Raj and others v. Imam Din and (.1) PLD 1975 Lab. 1235 another AIR 1932 Lah. 235 or application accompanying the court-fee stamp remained on the record undisposed of. Admittedly the Court has jurisdiction to extend time under section 148, C. P. C., even after the expiry of the period originally allowed, provided the party is not guilty of negligence or positive mala fides. It may be added that the argument that a party is not to suffer for any act of the Court is applicable with full force because if the successor Civil Judge did not treat the order of 30th March, 1971 as an order impliedly extended the period and entertaining the court fee as within time, the failure of the Court to have passed a proper order at an earlier stage should not have been used to the prejudice to the appellant."
' The above authority is not applicable to the facts of the present case and is distinguishable for more than one reasons. In the first place the observations quoted above were made by this Court in an appeal against the order of rejection and. The time for the payment for the deficit court-fee had deemed to have been extended. Secondly it was observed that the succeeding Court had failed to pass a proper order at an earlier stage. Thirdly, because the said case pertained to a money suit and the Bank was entitled to get relief from the Court for the amount for which the court-fee had been paid and the claim could have been reduced proportionately rather than the rejection of the plaint ordered straightaway. For these reasons I hold that the judgment cited by the learned counsel for the respondents is not applicable to the facts of the present case. The present case has certain peculiar circumstances which cannot be ignored. The decree passed by the Court was conditional and the penalty for the non-payment of the court-fee had already been prescribed on the basis of which it could be said that a valuable right had accrued in favour of the opposite-party. 7 he Court after having passed the decree had become functus officio and section 148, C, P. C. In its terms was not applicable and therefore the concept of implied condonation of delay could not be attracted to the present case. Even their Lordships of the Supreme Court in a recent case reported as Mst. Walayat Khatoon v. Khalil Khan (1) have narrow down the scope of sections 148, 149 and Order VII, rule 11, C. P. C. It was held that the Court was only obliged and bound to grant time under Order VII, rule 11(c), C. P. C. When the time granted itself is within the period of limitation. It was further held that this was the only stage, that the matter was soley between the subject and the State and in all other categories of the cases the extension of time was not a matter between the subject and the State and the order of extension could not be granted as per routine or mechanically without keeping in view the period of limitation or any valuable right accruing to the opposite-party at the time of the passing of the order. The relevant observations of their Lordships pertaining to this case are quoted below :- "The next point to be seen is whether in all cases a Court is first bound to grant time to a plaintiff to make up the deficiency in the court-fee under Order VII, rule 11 (c), C. P. C., before proceeding to take any further action on an insufficiently stamped plaint. My answer is in the negative, and for this (1) P D 1979 SC 281 purpose I will divide suits or plaints into two categories. One category is where the plaint is filed well in time, and there is still some period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and bound to grant time under Order VII, rule 11 (c), C. P.
C., and the time granted itself should also be within the meaning period of limitation. This is a stage when the matter is solely between a subject and the State. However, if despite grant of such an opportunity the needful is not done the Court shall reject the plaint. The second category is that where on the date of grant of time the suit has already become time barred, or where though the time was granted on a date when suit was within limitation but it was granted or extended upto a date by which the suit will become time barred. However, the matter is not confined solely between a subject and the State because in such a situation a third person namely defendant has also in the meantime due to running out of the period of limitation in his favour acquired a vested right.
These cases are distinguishable from the first category, and are a class by themselves. There are to be regulated by sections 148 and 149 of the C. P. C. Which as is obvious authorise the Court to destroy the defence of limitation which may have become available to a defendant in the meantime. It is this category of cases in which a Court is not bound or obliged to grant time and nor is it to be granted just in routine or mechanically but by keeping in view the above considerations."
' If the case is examined in the light of the dictum laid down by the learned Judges of the Supreme Court it would be abundantly clear that the principle of implied condonation of delay under sections 148 and 149, C. P. C. Was not attracted to the facts of the present case with no stretch of imagination it can be said that the Court on the respondent's tendering the court-fee after the expiry of the period fixed under the decree and by writing the word 'file' had condoned the delay or possibly could do so particularly keeping in view the fact that a valuable right had accrued to the other party and every thing had been done in their absence. The appellate Court had not passed any order in any way varying the terms of the decree for or against either of the parties.
6. The learned Additional District Judge had accepted the appeal on the basis of a judgment of Peshawar High Court reported as Amir An v. Gul Muhammad (1) and came to the conclusion that the effect of the non-compliance of the order of the trial Court could not be gone into and a direction to make good the deficiency in court-fee could be made by the first appellate Court or the High Court which in the present case have not been made as meanwhile the deficit court-fee had been paid on 11th December 1974.
7, I am not convinced by the reasoning of the learned Additional District Judge and fail to understand how the Peshawar judgment was applicable to the facts of the present case. In that case the trial Court had decided issue No, 7 which related to the correctness or otherwise of (1) P LID 1968 Pesh. 106 court-fee and held that the market value of the property had been agreed to Rs, 750 and directed the plaintiff should make good the deficiency of the court-fee on the plaint by 11th January 1963. On appeal the learned District Judge without discussing the merits of the case dismissed the appeal on the ground that the appellant had not made good the deficiency in court-fee as directed by the trial Court and this was the judgment challenged in the Peshawar High Court. The point involved therefore in that case was whether the direction given by the trial Court for making good the deficiency in the court-fee after disposing of the case was without jurisdiction and the plaint could not have been rejected on that ground, It was in this connection that relying on the judgment of Allahabad case it was held that the Court become functus officio by passing the final judgment on 7th January 1963 and could not continue the process of adjudication in the procedural matters of the suit after that. Doubts were also expressed if after the final determination of the suit it retained the jurisdiction to implement or enforce its order regarding making up of the deficiency in the court-fee. The appeal was accepted and the proper procedure suggested to the learned District Judge was that to have called upon the appellant before him to make good the court-fee before hearing the appeal as he had all the powers of the trial Court under section 107, C.
P. C and further powers under paragraph (ii) of section 12 and paragraph (ii) of section 10 of the Court Fees Act to determine the suit on the ground of insufficient court-fee and the appeal was accepted and the above directions were given.
8. I have given the details of the Peshawar case only with a view to show that neither facts nor the ratio of the judgment was applicable to the facts of the present case and therefore wrongly relied on by the learned Additional District Judge.
9. In view of the above discussion 1 hold that as terms of the decree had not been complied with, it had become incapable of execution and there was no extension of time either expressed or implied. The Court had even no such jurisdiction after it had become functus officio on the passing of the final decree. The findings of the learned Additional District Judge cannot be legally sustained and therefore set aside restoring the order of learned Civil Judge, dated 19th June, 1978 upholding the objections of the petitioners that the decree was not executable.
10. Keeping in view the difficult question involved in the present petition the parties are left to bear their own costs.