Tassaduq Hussain Jillani, J.--This appeal by leave of this Court is directed against the judgment dated 11.05.1999, passed by a learned Single Judge of the Lahore High Court, vide which the appeal of respondent-vendee was allowed, the joint application moved by the judgment-debtor and the alleged assignee (in a suit for specific performance of sale agreement) was accepted, the period for depositing' the balance sale consideration was extended and they were directed to deposit the balance amount of Rs. 3,87,34,450/- upto 13.5.1999.
2. The facts giving rise to the instant appeal are that appellants (hereinafter referred to as "vendors') by a written agreement dated 30.08.1997 agreed to sell the suit property to the respondent (hereinafter described as "the vendee"). In terms of the said agreement the total sale price was fixed as Rs. 4,74,34,450/-, out of which a sum of Rs. 85,00,000/- was paid to the appellants in advance and the balance amount of Rs. 3,87,34,450/- was to be paid within 4 months. The said period was, however, extended by a few months by a mutual agreement on 25.03.1998. The parties fell out; the balance sale consideration was not deposited where-after respondents filed a suit for specific performance and alongwith the same an application for temporary injunction restraining the appellants/defendants from alienating the property was also filed. This application was allowed on 27.09.1998. This was challenged by the appellants (FAO No.192 of 19g8) in the High Court, which was partly allowed and it was directed that the application for temporary injunction shall be, allowed subject to the condition that the balance of sale consideration of Rs. 3,87,34,450/- would be deposited by the vendee in the trial Court within 3 days, which amount, if deposited, was further directed to be invested in some profit bearing scheme. This order was challenged before this Court in CPLA No. 1787- L of 1998 which was disposed of on 19.11.1998 by mutual agreement of the parties in terms as under:-- That the captioned CPSLA is pending disposal before this Hon'ble Court and is fixed for hearing on 19.11.1998.
That dispute between the respondents and M/s Wafai Associates (Pvt) Limited with respect to a sale agreement relating to Property No. 134 (Commercial Plot) Block E-I, Gulberg-III, Lahore measuring 3 kanal 4 marla 116 Sq.Ft. etc as per terms of agreement to sell dated 30.8.1997 (suit property) is pending disposal before the Civil Court in the shape of a suit for specific performance of contract.
3. That the Alflah Bank's suit for the recovery of Rs. 28,082,782/96 is also pending in the Banking Court against the respondents.
4. That the parties to the main petition and Alflah Bank have settled the respective disputes pending litigation amicably and with mutual consent. The terms of which are enumerated below.
(a) That M/s. Wafi Associates have agreed to pay & deposit the balance sale consideration of Rs.
3,87,34,450/-- within a period of four months computing from the date of decree.
(b) That on payment/receipt of the aforesaid price of Rs. 3,87,34,450/- M/s. Tasneem Ismail etc. (Respondents in the petition) shall undertake to execute the sale-deed in favour of M/s. Wafi Associates regarding Property No. 134-E-I, Gulberg-III, Lahore measuring 3 kanal 4 marla 116 Sq.Ft.
(suit property) as per agreement of sale dated 30.8.1997.
(c)That it has been agreed by M/s. Tasneem Ismail etc. (respondents) that after the receipt of the consideration of the aforesaid sale proceeds of Rs. 3,87,34,450/- a sum of Rs. 6.5 million shall be paid to M/s. Alflah Bank immediately. In consideration thereof the Bank has agreed that it has no objection to the sale of the properly to M/s. Wafi Associates as mentioned above and has further agreed to forego all their claims rights interest in the above said property.
(d)That the parties have agreed that a joint application shall be filed on 21.11.1998 before the learned Civil Judge for passing a decree for specific performance of the contract in favour of M/s. Wafi. Associates in the terms agreed upon. (e) That in case M/s. Wafi Associates fail to deposit, pay the balance of price amounting to Rs.
3,87,34,450/- to M/s. Tasneem Ismail etc (Respondents) as agreed upon, within the specified period of 4 months, the suit for specific performance shall be dismissed.
'That the parties to the petition and Bank Alfiah have entered into a lawful compromise the terms of which have been recorded above. It is in the interest of justice that the present petition may be disposed of on the above terms.
'It is therefore respectfully prayed that this august Court may graciously record the aforesaid terms of agreement and the present petition may kindly be disposed of on the above terms and the learned Civil Judge, before whom the suit for specific performance is pending and fixed for hearing on 21.11.1998 may kindly be directed to decree the suit in view of the above terms on 21.11.1998."
3. Pursuant to the afore-referred order, the parties moved the learned trial Court. The vendee also moved the said Court for adjustment in the sale price by way of an application tinder Section 151 CPC. The latter application was dismissed by the trial Court on the ground that it could not vary the order of this Court referred to above. However, the Court decreed the suit in terms of the consent order of this Court and it was directed that the plaintiff shall deposit a sum of Rs. 3,87,34,450/- in the Court till 21.03.1999, failing which the suit shall stand dismissed. This was vide order dated 17.03.1999. The same day the application dated 16.03.1999 jointly filed by respondent-decree holder and Respondent No. 2 Abdul Waheed to the effect that since the decree holder had transferred his rights in favour of the latter and he being the assignee be allowed to deposit the decretal amount was dismissed by the learned trial Court on the ground that the Court could not vary the decree as it had become functus officio. An appeal (FAO No.74 of 1999) was filed before the High Court by the decree holder wherein Abdul Waheed was impleaded as respondent. During the pendency of the said appeal i.e. on 06.05.1999, Respondent No. 1, the vendee/decree holder executed a fresh agreement of sale/assignment in favour of Muhammad Ashraf in which the amount of consideration was fixed afresh. On 11.05.1999, when the FAO came up for hearing before the High Court, the Court was not informed about the afore-referred subsequent purported assignment (in favour of Muhammad Ashraf) and consequently with the acceptance of the appeal the by High Court the joint application of the decree holder and Abdul Waheed assignee was allowed (who was arrayed as Respondent No. 6 in FAO), and they were granted three days' time to deposit the balance amount (Rs. 3,87,34,450/-) i.e. upto 13.05.1999. Hence this appeal. Interestingly at the leave granting stage the subsequent "assignee" namely Muhammad Ashraf moved an application before this Court stating therein that he did not want to press his claim under the agreement of sale made in his favour and that the amount deposited by him before the trial Court may be allowed to be refunded to him. While granting leave this Court allowed the application of Muhammad Ashraf and the trial Court was directed to return the amount deposited by him.
4. In support of this appeal, learned counsel for the appellants made the following submissions:-- (i)That pursuant to the order of this Court dated 19.11.1998,`a consent decree was passed by the trial Court vide the judgment dated 21.11.1998 which inter-alia directed the plaintiff to deposit a sum of Rs. 3,87,34,450/- in Court till 21.03.1999, failing which it was stipulated that the suit` shall stand dismissed. The terms of the agreement could neither be varied nor could the date fixed be extended without the consent of the parties to the afore-referred agreement. The learned High Court, it was maintained fell in error in extending the period. In support of this submission, learned counsel relied on "Syed Ahmed Shah and 2 others vs. Muhammad Yew and 6 others (1974 SCMR 191 at page 192), Sirajud Din Banjmin (through his legal heirs) and another vs. Haji Abdul Latif and 4 others (1983 SCMR 836 at page 837), Saat Malook vs. Rozi Khan (1979 SCMR 593), Ch. Muhammad Nawaz vs. Ch. Rehmat Ali and another (1994 SCMR 349 at page 351), Synthetic Chemicals Co. Ltd.: In re (PLD 1988 Karachi 429), Begum Rashida Nawaz us. Ch. Muhammad Amin and 3 others (PLD 1998 Lahore 503) & Haji Abdul Hameed Khan vs. Ghulam Rabbani (2003 SCMR 953 at case 956).
(ii)That despite direction of the learned High Court given in the impugned judgment neither the respondent-decree holder nor the respondent-original assignee Abdul Waheed (who was iznpleaded as Respondent No. 6 before the High Court) deposited the balance amount. Rather during the pendency of the appeal before the High Court the decree was assigned to one Muhammad Ashraf without intimating the Court. It was the subsequent assignee' who deposited the amount in Court on 13.05.1999. Even the said Muhammad Ashraf withdrew the amount with permission of this Court in the presence of learned counsel for the respondent-decree holder and without any, objection having been raised. As consequences of that the balance sale price is no more with the trial Court and the suit merits to be dismissed.
(iii) That the agreement was signed way back in August 1997 and after 10 years the price of property have escalated 10 times and it would not be fair to decree the suit on the same sale consideration. In support of this submission, he referred to Corpus Juris Secundum Vol. 81 page 983 & 984 to canvass that the conduct of the buyer and the delay caused have weighed with the Court while considering the question of granting or refusing to grant decree for specific performance of contract. The relevant observation relied upon by petitioner's learned counsel is as follows:-- "A purchaser may not however, withhold performance in order to speculate on an increase in value, and specific enforcement of a contract may be considered inequitable where the property has largely increased in value during the purchaser's delay. When parties are engaged in business enterprises that by their very nature fluctuate in value, such parties cannot demand specific performance of contracts unless they assert their rights diligently and without unreasonable 5. On the other hand, Syed Sharif-ud-Din Pirzada, Sr. ASC, learned counsel for the respondents supported the impugned judgment by submitting that respondent-decree holder was all along prepared to comply with the terms of the agreement dated 30.08.1997. He contended that a bare reading of the various clauses of the agreement would indicate that parties had agreed that "vendor" would, "include their respective heirs, successors-in-interest and assignees" and the "buyer" would include "heirs, successors.-in-interest and assignees". The application moved by the decree holder and the assignee namely Abdul Waheed before the trial Court was not only reflective of bona-fides of the respondent but was strictly in accord with the agreement. It was wrongly dismissed by the trial Court and was rightly reversed by the learned High Court and time extended for deposit of the balance sale price through the impugned judgment. According to him, the Court has ample powers to extend the time in suitable cases. Reliance was placed 133 learned counsel on the following precedent case laws: "Dar Oka; Printing and Publishing Limited Liability Company vs. Printing Corporation of Pakistan Private Limited (PLD 2003 SC 808), Dr. Iftikhar Ahmed Zahid vs. Mrs. Nilofer Akhtar and another (2004 SCMR 96) & Abdul Hameed and others vs. Settlement Authority and others (2004 SCMR 790)". Similarly, he added that no exception could be taken to the deposit of the remaining sale consideration by the subsequent assignee Muhammad Ashraf (pursuant to the impugned order) because the prior assignee stood substituted by the subsequent assignee in terms of the agreement dated 06.05.1999. The non-disclosure before the High Court of the subsequent assignment in favour of Muhammad Ashraf, he further added, was inadvertent and could not be pressed into service to non-suit the respondent-decree holder. Coming to the withdrawal of amount deposited by Muhammad Ashraf, he contended that it was an act of the Court and should not prejudice the case of the respondent.
6. Repelling the contention of appellant's learned counsel that escalation of price of properties should be a ground to decline specific performance of contract, Mr. Sharif-ud-Din Pirzada submitted that the respondent-decree holder had filed the suit well in time and there is nothing in evidence to show that the prices of real estate had increased manifold. In support of this submission, he referred to the following quote from a judgment of this Court in 'Mrs. Shczukat Ali vs. Mrs. Safia Khatoon and others (1994 SCMR 2189 at 2212):-- "We have noticed the considerable appreciation in the value of suit property since the filing of the suit and have considered whether in the changed circumstances, the grant of relief of specific performance would be inequitable? We, however, found that there was no evidence on record to show that there was any worthwhile appreciation in the value of the suit property between the period, the agreement of sale was entered into between the appellant and the deceased and the suit for specific performance was filed by the appellant. The increase in the value of the property after the filing of suit for specific performance cannot be taken into consideration for denying the relief of specific performance, as this change in the circumstances is not attributed to the conduct of the appellant after entering into the agreement of sale. We are, accordingly, of the view that the appellant was entitled to the relief of specific performance in the circumstances of the case".
7. We have heard learned counsel for the parties and have given anxious consideration to the submissions made.
8. The argument that in the event of default of deposit of sale consideration by the purchaser within the time stipulated in a decree passed with the consent of the parties, the Court cannot extend the time without consent of the other party does not take into account the nature of a decree passed in a suit for specific performance. The precedent cases relied upon by appellants' learned counsel either did not arise out of suits for specific performance or do not address the issue in the context in which it has been mooted in the instant case. The judgment reported at "Saat Malook vs. Raw Khan (1979 SCMR 593), relates to a preemption matter. The case reported as "Sirajud Din Banimin (through his legal heirs) and another vs. Haji Abdul Latif and 4 others (1983 SCMR 836), arose out of a constitutional petition wherein parties were pitted against each other for a claim under the Settlement Scheme No.VIII. The petition was disposed of in terms of a compromise which inter-alia stipulated deposit of a certain amount by specified date. Whereafter the respondents therein were to deliver the vacant possession. However, on account of non deposit of the afore-referred amount an application was made by the respondents for dismissal of the suit which was disposed of and an observation was made that the said application had borne fruit and the writ petition stood dismissed. This Court did not interfere with this order on the ground that "since they had agreed to the terms of compromise, neither on grbunds of law nor of propriety, the matter required interference". In the case titled as "Ch. Muhammad. Nawaz us. Ch. Rehmat All and another (1994 SCMR 349)", the ratio laid down was that a consent decree could not be changed or altered unilaterally without the consent of the other side and the Court refused to grant execution of the decree. But the prime consideration was the conduct of the decree holder as the Court found that, "in spite of such clear and unambiguous terms recorded the appellant submitted a sale-deed which was completely contrary to the agreement. Furthermore, the payment made by the appellant was also not in accordance with the agreement as it ought to have been made to Ch. Muhammad Amin". In the case of "Haji Abdul Hameed Khan vs. Ghulam Rabbani (2002 SCMR 953)", the Court refused to grant relief to a decree holder on the ground that he did not deposit the sale consideration and his conduct was contumacious. The Court held that, "in a suit for specific performance, it is always of paramount consideration that the plaintiff, seeking equitable remedy of specific performance must be always willing and ready to perform his part of contract. Conduct of the petitioner unequivocally tends to reflect that he has been protracting the litigation on one or the other ground and has been successful so far on untenable grounds. Since the petitioner did not deposit the sale amount "in compliance with the trial Court judgment as well as within the extended period, as permitted by the High Court, we would be legitimately justified in presuming that the petitioner is not serious in the prosecution of his remedy".
9. A careful analysis of those judgments which arose out of suits for specific performance (referred to above) would indicate that the Court refused to extend time on account of the contumacious conduct of the decree holder keeping in view the cannons of equity, reason and good conscience.
The same principles have weighed with the Courts while extending time as well and in doing that the mandate of Section 35 of the Specific Relief Act was kept in view.
10. It is by now a settled principle of law that a decree in a suit for specific performance is not a final decree so as to debar the Court from extending the period fixed for depositing the sale consideration. It is in the nature of a preliminary decree which partakes the character of a contract i.e. the purchaser has to deposit the purchase price, has to take other necessary steps for framing and execution of a conveyance deed and the seller has to appear in Court and sign the afore- referred deed. That being so, the decree/contract continues to subsist unless it is rescinded by the Court in terms of Section 35 of the Specific Relief Act, which reads as under:-- "35. When rescission may be adjudged. Pew person interested in a contract in writing may sue to have it rescinded and such rescission may be adjudged by the Courr\n any of the following cases, namely : (a)Where the contract is voidable or .terminable by the plaintiff; (b)Where the contract is unlawful for cap, not apparent on its face, and the defendant. is more to blame than the plaintiff;
(c) Where a decree for specific performance of a contract of sale, or of a contract to take a lease, has be'es made and the purchaser or lessee makes default in payment of the purchaser-money or sums which the Courts ':has ordered him to pay.
'When the purchaser or lessee is in possession of the subject matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any received by him as such possessor.
'In the same case, the Court may by order in ',the suit in which the decree has been made and not complied with, remind the contract, either so far as regards the party in default, or altogethOr as the justice of the case may require.
11. The extension of time is not an alterationlor modification of a decree to be hit by Order XX, Rule 3 of the Civil I 3, ;i1Dced ure Code. In "Manicka Gounder vs. Samikannu Gounder (AIR 196 *fad. 397), it was held that the Court had power to extend time for, payment of sale consideration. The afore- referred view was reiterated! in 1973 Calcutta 439 and it was observed that, "Although the power of fixing time limit for payment of the purchase money or other sums h the decree for specific performance is not expressly provided in Section 35 C of the act, it must be deemed to have been thereby necessary implication. Where the decree specifically provides for payment of the balance of the purchase money within certain times, it is not open to the decree-holder to come at any time to pay fire money and ask for the enforcement of the decree. No question of payment within reasonable time arises in such case. The Court may, however, extend the time taking into consideration the attitude of the decree-holder Where the decree-holder has not made any application for enlargement of time at any stage of the proceeding for rescission, the order rescinding the contract and decree for specific performance is justified'. However, a learned Bench of the Lahore High Court in the case of 'Amjad Malik vs. Muhammad Saleem etc (1992 MLD 31), took a contrary view relying on an Indian judgment in "Bhujangrao GanPati vs. Sheshrao Rajaram (AIR 1974 Bom. 104). In the said Indian judgment the view taken was that, "A decree which provides that the suit is to stand dismissed if payment is not made within the time fixed is a self-operative final decree. Provisions of Section 28 of Specific Relief Act do not apply to such a decree. Failure on the part of the party to carry out the terms of the decree automatically results in dismissal of suit. The Court becomes functus officio and has no power to grant an extension of the time fixed by the decree ". But this view was not followed even in India and in "Shmt. Sarupi and others vs. Har Gian and others (AIR 1975 Punjab and Haryana 231), the Court was of the view that, 'Usually when Courts pass a decree for specific performance, they fix a time during which the plaintiff is to pay the consideration and thereby get a proper sale in his favour. But this is done more for purposes of convenience rather than in compliance with any provision of the Civil Procedure Code. The decree for specific performance of the contract for sale is not a final decree of the character that completely debars the Court from fixing or extending the time for deposit of the purchase money.
Thus, where the appellate Court dismissed the appeal against the decree but failed to make any direction regarding the redeposit of the purchase money which the respondent-vendee had deposited in trial Court according to its direction but was allowed to be withdrawn during pendency of the appeal by the appellate Court, it was held that the appellate Court had discretionary power to-fix the time and to extend the same. The fact that the Court fixed the time and was required to be given to the appellant-vendor before passing the order. When a decree is silent as to what is to happen, if the purchase money is not paid within the time fixed the decree will not lapse automatically on the plaintiff's failure to pay within the prescribed time. The default will, however, entitle the 'vendor to apply for rescission of the contract under Section 28(1). But so long as the vendor does not apply for such relief the decree subsists and the decree-holder can still execute it within the period of limitation by depositing the purchase money within the time allowed or extended. If, however, the decree directs that in the event of default of deposit within the time fixed the suit shall stand dismissed, the Court would be incompetent to extend the time. In such a case it will be deemed that the Court has also, in substance, passed an order of rescission of contract as contemplated by the concluding portion of Section 28(1)". With regard to the nature of a decree in a suit for specific performance and the scope of Section 35 of the said Act, this Court took a similar view in "Shabbir Ahmed and another vs. Zahoor Bibi and others (PLD 2004 Supreme Court 790). While accepting the appeals the .Court extended time for deposit of sale consideration holding that the decree in a suit for specific performance is a preliminary decree partaking the nature of a contract that the Court is still seized of the lis and could extend time for deposit of sale consideration or rescind the contract in terms of Section 35 (C) of the Specific Relief Act, this Court observed as follows:-- "Perusal of Section 35(c) clearly indicates that even after passing of decree, the Court possesses the power to rescind the contract and consequently set aside the decree, which it had passed earlier. Irresistible conclusion, therefore, would be that a suit, which was once decreed, could be dismissed again if the case falls within the scope of Section 35(c). The main characteristic of Section 35 is that the Court has been empowered to rescind or not to rescind the contract. despite the fact that decree has already been passed. If still the Court permits the decree to remain operative, certainly the time could be extended. Normally in a civil suit after passing of decree, the proceedings come to an end.
'In a suit for specific performance, the situation is different and if the case falls under clause (c) of Section 35, still the. order of rescission can be passed. This brings it within the scope of preliminary decree, as further proceedings, as a rule, are to be taken before a suit could be completely disposed of. Besides, such decree itself assumes the characteristics of a contract, whereby certain acts are yet to be performed, including depositing of the purchase price, cost of purchase price of necessary stamps for execution of conveyance deed, the seller has also to put his appearance for signing conveyance deed, to receive the purchase price, etc. "
12. In the instant case even the argument that it was a self-operative decree would not be available to the appellants because the default clause stipulated as under:-- "That in case M/s. Waft Associates fail to deposit, pay the balance of price amounting to Rs.
3,87,34,450/- to M/s. Tasneem Ismail etc (Respondents) as agreed upon, within the specified period of 4 months, the suit for specific performance shall be dismissed. (Emphasis is supplied)".
13. The expression "shall be dismissed" does not envisage automatic operation. It contemplates a further judicial older dismissing the suit. The distinction between this expression and "shall stand dismissed" or "will be treated as dismissed" has been a subject of comment. In "Shah Wali vs. Ghulam Din (PLD 1966 Supreme Court 983 at 999)", this Court held as follows (Though in a pre- emption case):-- "That there is a difference between the words 'will be dismissed' and 'will stand dismissed' or 'will be treated as distnissed' has been generally accepted and the Courts have been inclined to invoke their power under Section 148 of the Code of. Civil Procedure where the words used are 'will be dismissed' or words of similar import vide Dewratan v. Kristo Mohan Shah ILR 48 Cal. 902 but where the words used are words of finality and are to take effect automatically this Section can have no manner of application and the time cannot be enlarged. This is also the view of the English Courts vide The Scrip Phonographic Co. v. Gregg (1890) 50 LJ406 (NS) and Whistler v. Hancock (1879) 48 LJ QB 606."
14.The decree in the case in hand did not provide for dismissal of suit forth within the event of default. It had to precede an order of the Court in terms of Section 35 of the Specific Relief Act and the Court still had the discretion to extend time The decree-holder which had moved the trial Court for extension of time which was wrongly refUsed and the learned High Court rightly set aside that judgment of the learned trial Court and allowed the joint application of the buyer and Respondent No. 6 (assignee Mian Abdul Waheed).
15.A reading of the, joint application referred to in the preceding paragraphs reflects that the respondent-decree holder had transferred all his rights under the decree in favour of the assignee (who was Petitioner No.2 in the said application) and it was prayed that, "Petitioner No 2 be kindly allowed to depoait, the balance sale consideration i.e. Rs.3,87,34,450/- in this Hon'ble Court, and the decree dated 21.11.1998 passed in favour of the Petitioner No 1 may graciously be transferred in favour of Petitioher No 2 and the said decree be ordered to be executed in favour of Petitioner No 2 with all rights available to Petitioner No. 1." It was this application which was allowed by the High Court through the impugned judgment with the stipulation that, "the buyer/assignee are granted time to deposit amount of Rs. 3,87,34.450/- upto and inclusive of 13.5.1999". After the impugned judgment Mian Abdul Waheed, the assignee stepped into the shoes of the decree holder. However, admittedly he has not deposited the balance sale consideration in terms of the impugned judgment. Instead the sale consideration was deposited by one Muhammad Ashraf on 12.05.1999.
The decree holder having assigned the right and interest in decree in favour of ,the assignee was divested of his lien with the decree and he could not further transfer or create a new assignment.
After the assignment it is the assignee/transferee who has to seek execution of the decree in terms of Order XXI Rule 16 of the CPC, which reads as follows:-- "16. Application for execution by transferee of decree.- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder: Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objectiOns (if any) to its execution: Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others".
16. Admittedly, the assignee defaulted in payment of the purchase money in terms of the impugned judgment. His case was squarely hit by Section 35 Clause (c) of the Specific Relief Act and the contract merits rescission on this short ground. The deposit of sale consideration by Muhammad Ashraf was of no avail. Firstly because the so-called assignment in his favour was not a valid assignment as the decree holder had no power to do so after having transferred his right and interest in favour of Mian Abdul Waheed. Secondly the subsequent purported transfer in favour of Muhammad Ashraf was hit by principle of lis pendens. Thirdly the learned High Court vide the impugned judgment dated 11.05.1999 allowed Mian Abdul Waheed to deposit the sale price and only he could do so. Fourthly, even if the so-called assignment in favour of Muhammad Ashraf is considered to be valid the said Muhammad Ashraf at the leave granting stage (on 14.06.2000) made a prayer for withdrawal of the sale consideration deposited by him, which prayer was not opposed by the Counsel for decree holder and was allowed. The net effect is that the balance sale consideration is no longer deposited and contract warrants rescission on that count as well.
17.Learned counsel for the respondent-plaintiff attempted to argue that the withdrawal of sale consideration 'by Muhammad Ashraf was on account of an act of this Court and it should not ensure to his disadvantage. This argument is of no avail; firstly, because the order was passed in the presence of the then learned counsel for the decree holder namely Mian Iqbal Kala Noori and without any opposition from him; secondly, no attempt was made to have this order reviewed during the last seven (07) years when the appeal was pending and thirdly during this period neither the decree holder nor the assignee made any effort or sought leave of this Court to deposit the balance sale consideration.
18. For what has been discussed above, this appeal is allowed, the impugned judgment dated 11.05.1999 of the learned Lahore High Court is set aside and the suit filed by respondent-plaintiff is dismissed. However, the amount received by the petitioner-defendant i.e. a sum of Rs. 85,00,000/- shall be returned to the respondent-plaintiff within five (05) months.