' MIAN SAQIB NISAR, J.--- The petitioner/plaintiff, brought a suit for pre-emption against the respondent and on the basis of an oath on the Holy Qur'an, it was decreed on 24-1-2004; it was directed in the decree, that the petitioner/plaintiff shall deposit a stun of Rs,20,000, the remaining pre-emption price, within a period of two weeks from the date of the decree, otherwise his suit shall be deemed to have been dismissed; it was further ordered, that the petitioner shall also pay a sum of Rs,6,000 to the respondent/judgment-debtor, as the costs of the mutation.
2. The petitioner admittedly has deposited the pre-emption money on 31-1-2004 i,e, within a period of two weeks of the decree and there is no dispute between the parties in this behalf. However, the amount of Rs,6,000 as the costs was not deposited on the ground, that the Ahlmad of the Court refused to accept this amount of the costs. Anyhow, the petitioner thereafter, brought an execution petition, seeking the execution of the decree; dated 24-1-2004, in which the respondent on 26-2- 2004 moved an application, asking for the rejection of the execution proceedings and also the suit on the ground, that the amount of the costs has not been deposited by the petitioner. Upon the above, the learned Civil Judge/Executing Court passed the order on 26-3-2004, holding that "the failure of the plaintiff/respondent in this regard, in view of the order, dated 24-1-2004, results in a findings against him for dismissal of his suit". Further it was held that "the instant application is accepted and consequently, the suit of the plaintiff for possession through pre-emption is dismissed". Against this order, the petitioner preferred an appeal, which has been rejected, vide order, dated 28-4-2005.
3. Learned counsel for the petitioner contends, that the executing Court had no power to dismiss a suit; it is also argued, that neither any time period was fixed by the Court in the decree, dated 24-1- 2004, nor the decree entailed the consequences of dismissal of the suit on account of the non- depositing of the costs, therefore, the petitioner's suit could not be dismissed; it is also argued, that the suit could not have been dismissed for the non-payment of the costs, which the petitioner was always ready and willing to deposit, and in this regard had approached the Ahlmad of the Court as well, who refused to accept the costs on behalf of the respondent.
4. Learned counsel for the respondent, however, by relying upon the provisions of Order XX, rule 14, C.P.C. And the judgment reported as Saadullah Khan and 2 others v. Sheikh Ghulam Qasim deceased through legal heirs and others PLJ 2001 Peshawar 76, states that after the passing of the decree the Court has become functus officio, and therefore, the period provided in the decree, dated 24-1-2004, directing the petitioner to deposit the costs within a period of two weeks, could not be extended by the Court.
5. I have heard the learned counsel for the parties. As regards the dismissal of the suit by the executing Court is concerned, the order is without jurisdiction, because the executing Court at the most could refuse to execute the decree but had no power to dismiss the suit.
6. As regards the dismissal of the suit on the basis of decree is concerned, suffice it to say, that in the decree, dated 24-1-2004 the Court has very clearly held, that the same shall be dismissed, if the preemption money is not paid, within two weeks; however, there is nothing in the decree, that same consequences shall follow if the costs are not paid and for which even no time has been fixed.
7. The argument of the learned counsel for the respondent, that the non-payment of the costs part of the decree, should also be read in continuation of the first part of order, is absolutely misconceived, because the decree has to be construed strictly and enforced, and according to the very clear wording of the decree, the dismissal of the suit is only in the eventuality of the failure to pay the pre-emption price/money, within two weeks and not the costs.
8. As regards the argument of the respondent's side, that the decree should have been drawn according to the provisions of Order XX, rule 14, C.P.C. And no extension of time can be granted, it may be held that it was the duty of the Court, to comply with the above law and if there is any lapse on the part of the Court in drawing the proper decree, no prejudice can be caused to the plaintiff. Moreover, the question of extension of time does not arise in this matter, for the reason that the Court has not fixed any time for the deposit of the costs of Rs,6,000 in the decree, dated 24-1-2004, thus, it was permissible to the petitioner to pay the costs at any time before or at the time of the seeking of the execution of the decree. At the best, at that time the executing Court could have declined to execute the decree until and unless the amount of costs had been paid by the petitioner to the respondent, but under no circumstances the suit could have been dismissed by the Court, which order is absolutely without jurisdiction and lawful authority.
9. In the light of above, both the impugned orders having suffered from legal or factual infirmity cannot sustain, which are hereby set IC aside. This petition is accordingly allowed.