' MAULVI ANWARUL HAQ, J.- On 21-11-1990 the appellant filed a suit against respondent No.l for specific performance of an agreement to sell dated 18-11-1990. Later, respondents Nos.2 and who were the subsequent purchasers were also impleaded. According to the contents of the plaint and as admitted by the respondent No.l in her written statement, the consideration was settled at Rs.
11,50,000, out of which a sum of Rs. 10,000 was paid as earnest while the balance was to be paid within 21 days when the suit property was to be transferred by respondent No.l to the appellant. For several developments taking place during the pendency of this suit, after impleading of the respondents Nos.2 and 3, a trial was conducted. The learned trial Court dismissed the suit on 3-10- 1994. R.F.A. No.284 of 1994 was allowed by this Court on 3-3-1997. The suit of the appellant was decreed and he was granted the relief of specific performance "of the said agreement to sell. He was directed to deposit the balance amount of consideration i.e. R$. 11,40,000 in Court within one month. Admittedly, this term of the decree was complied with and the amount was deposited. I may note here that along with the said R.F.A., C.R. No.3895 of 1994 was also filed to challenge an uiuer of the learned trial Court dismissing an application filed by the appellant under section 12(2), C.P.C. For setting aside of a decree for specific performance of an agreement passed in favour of the respondents Nos.2 and 3 against respondent No.l with consent. This civil revision was allowed.
The respondent No.l did not but respondents Nos.2 and 3 did file C.As. Nos.466 and 467 of 1997 which were dismissed by the Honourable Supreme Court of Pakistan on 28-5-2002. The decree was put into execution and ultimately a sale-deed was registered in favour of the appellant on 29-5- 2005.
2. While the said appeals were pending in the Honourable Supreme Court of Pakistan, on the application of the appellant, the deposited amount was invested in a Federal Government Savings Scheme and Special Savings Certificates were purchased by the learned trial Court, the profits accruing on the said amount were ordered to be given to the respondent. The appellant felt aggrieved' and filed a review application which was dismissed on 20-6-2003. Thereafter, a first appeal was filed which has been dismissed by a learned A.D.J., Lahore, on 21-3-2005.
3. Learned counsel for the appellant contends that since a dishonest defence was taken by the respondent No.l leading to a prolonged litigation between the parties, the profits accruing on the said amount of consideration ought not to have been paid to respondent No.l. He cites the case of Subramania Mudali v. Semalai Goundan (AIR 1934 Madras 97). According to the learned counsel, this will be tantamount to encouraging the litigants to take false pleas and then to reap the benefits of the long litigation. Learned counsel for the respondents, on the other side, argues that, admittedly, the amount deposited constitutes the - consideration for the property belonging to respondent No.l, which was ultimately transferred to the appellant as a result of the said litigation and by all means only she is entitled to the profits accruing on the said amount which is due only to her.
4. I have gone through the records. I may state here in the very begimiing that although no objection has been taken from the other side but I seriously doubt the competency of this R.S.A. The matter has arisen out of an order passed by a learned Executing Court while recording satisfaction of the decree after completing the transfer of the suit property in favour of he appellant and the disbursement of the eonsideration amount deposited by him. The said order would be appealable under section 104(fi), C.P.C. Having been passed in terms of section 47, C.P.C. However, no second appeal is provided against an order. Section 100, C.P.C. Which is the only provision in the Code providing a second appeal lays down that an appeal shall lie to this Court from a decree passed in appeal by a subordinate Court on the grounds stated therein. Section 101, C.P.C. Further lays down in mandatory terms that no second^ appeal shall lie except on the grounds provided in section 100, C.P.C. Section 104(2), C.P.C. Also provided in mandatory term that no appeal shall lie from any order passed in appeal under the said provision of law. The R.S.A. Is, therefore, found to be incompetent and is not maintainable. However, since records are available, I have examined the same within the parameters of section 115, C.P.C. In the light of the said submissions made by learned counsel for the parties.
5. There is no manner of doubt in my mind that a sum of Rs. 11,40,000 was the consideration for the property of the respondent No.l regarding which the appellant was seeking to enforce an agreement to sell entered in by the said lady. By all means the amount was payable to the said lady upon the transfer of the property to the appellant and conversely in case of the setting aside of the said judgment and decree passed by this Court in R.F.A. No.284 of 1994 and dismissal of the suit by the Honourable Supreme Court of Pakistan, or in case the decree was to be rescinded in terms of section 35 of the Specific Relief Act, 1877, the amount was to be paid back to the appellant.
In both the said eventualities, the profits on the said amount were payable to the party entitled to withdraw the said amount. It is not even the case of the appellant that under any law or any principle of law it was entitled to the said amount and consequently the profits accruing thereon after the transfer of the property in its favour in execution of the said decree.
6. Coming to the said contentions of the learned counsel, I have already noted above that according to the plaint filed by the appellant and, of course, the contents of the said agreement, it was to be performed within 21 days by the parties. The suit was filed three days after the execution of the agreement. I have examined the written statement filed by the respondent lady. Before I proceed to narrate its contents, I may note here that the appellant had also filed an application for a restraint order qua alienation of the suit property by the respondent No.l. This application was granted with the condition that the appellant should make a deposit of the balance amount of consideration in Court. It did not comply with the said condition and the stay application was consequently dismissed. In the said written statement, the said conduct of the appellant was pointed by way of preliminary objections. The lady admitted the execution of the agreement, its terms, the receipt of earnest money of Rs. 10,000. She, however, took the plea that the appellant had maliciously filed the suit three days after the agreement. According to her, the appellant was not possessed of the requisite funds to pay the remaining consideration amount. Despite directions of trial Court, it had failed to deposit the same. The restraint order was withdrawn and she transferred the property to the respondents Nos.2 and 3. The matter has already been adjudicated upon and the suit has been decreed by this Court and the judgment has been upheld by the Honourable Supreme Court of Pakistan. However, the said defence may be legally inadequate but it is certainly not a dishonest defence. So far as the said judgment in the case of Subramania Mudali is concerned, the same was given with reference to the provisions of section 19 of the Specific Relief Act, 1877, which empowers a Court to grant compensation on the grounds stated therein at the time of granting a decree. No such compensation was granted to the appellant by this Court or by the Honourable Supreme Court of Pakistan while passing the decree and deciding the appeals. The R.S.A. Is accordingly dismissed but without any orders as to costs.
7. The records of the learned lower Courts be remitted back immediately.