' MUHAMMAD ALAM KHAN J.---Rashid Khan son of Sardar resident of village Yarak Tehsil and District Dera Ismail Khan, has filed the instant Civil Revision under section 115 of the Code of Civil Procedure, wherein he has impugned the judgment and decree dated 13-1-2007 passed by the learned Additional District Judge-V Dera Ismail Khan in Appeal No,R.C.A.-23/2006, vide which he has challenged the reversal of the order dated 10-6-2006 passed by the learned Civil Judge-III Dera Ismail Khan; in Miscellaneous Application No,77/6.
2. Briefly narrated the facts of the case are that the plaintiff-petitioner brought a suit for pre- emption regarding land, the description of which has been given in the heading of the plaint in the court of Senior Civil Judge, Dera Isma il Khan, which was entrusted to the learned Civil Judge Dera Islmail Khan for disposal. It was averred that Ghulam Haider and Niamat Khan had also pre- empted the said sale transaction and thus, the learned trial court consolidated the two suits and after recording of evidence and hearing the arguments of the learned counsel for the parties, the rival pre-emptors withdrew their suit and resultantly the plaintiff-petitioner submitted an amended plaint. After hearing the arguments of the learned counsel for the parties qua the amended plaint the suit of the plaintiff-petitioner was decreed on payment of Rs, seventy thousands as sale consideration, vide judgment and decree in suit No,331/1 of 2000 decided on 3-7-2000.
3. That later on the petitioner being partly aggrieved from the sate consideration of the pre- empted land as fixed by the trial Court filed an appeal from the judgment and decree of the Civil Judge-III dated 3-7-2000 which came for hearing before the Additional District Judge, Dera Ismail Khan for disposal. However, as the respondent-defendant being aggrieved from the main decree also filed a cross-appeal. Both of the appeals were consolidated and the learned Additional District Judge while dismissing the appeal of the respondent, accepted the appeal of the plaintiff- petitioner to the extent of sale consideration which was reduced to Rs,35000 vide judgment and decree dated 10-11-2001 in Civil Appeal No,66 of 2006 decided on 10-11-2001
4. Two civil revisions were filed by the parties before the Peshawar High Court Dera Ismail Khan Circuit Bench being Civil Revisions Nos.8 of 2002 and 9 of 2002 which came for hearing before this Court and this court vide order dated 6-6-2005 disposed of the two revision petitions vide common judgment recorded in Civil Revision No,8 of 2002. Consequently, this court accepted Civil Revision No,8 of 2002 filed by the defendant-respondent and the sale consideration was enhanced to Rs,seventy thousands as decreed by the trial Court. However, the Civil Revision No,12 of 2002 filed by the plaintiff-petitioner was dismissed.
5. Later on the defendant/respondent filed a Review Petition bearing No,117 of 2005 in Peshawar High Court Circuit Bench Dera Ismail Khan, which was disposed of on the ground that the learned counsel for the petitioner does not want to pursue the said review petition and thus, the review petition of the respondent-defendant was dismissed on 25-10-2005. However, it was held by this court in the review petition aforesaid as under:-- "3. If the plaintiff-petitioner has withdrawn a part of the sale consideration, he should have deposited the same within thirty days of the order of this Court dated 6-6-2005 but if the said amount of Rs,70,000 is not available to be paid to the vendeedefendant-petitioner, that means the decree of the learned trial court, which was otherwise conditional on payment of the balance amount of sale consideration, stood reversed as under the Pre-emption Act, balance of sale consideration has to be deposited within thirty days of the date of decree. Even if the amount was deposited within the prescribed period but the same was withdrawn in the meanwhile, the amount should have been deposited within thirty days of the order of this Court dated 6-6-2005 and since a period of more than four months has expired, therefore, the plaintiff- pre-emptor has lost his rights firstly, for an incorrect statement as reproduced in para-4 and secondly, for non-compliance with the statutory requirement of deposit of amount within thirty days of date of decree.
4. At the most the objection with regard to the non-existence of decree can be raised in the executing court when the execution proceedings commence or the petitioner may move the learned trial Court for nullifying the effect of decree which was restored by the orders of this Court."
6. In this background the defendant-respondent filed an application under section 144 read with section-151, C.P.0 in the court of Civil Judge-III, Dera Ismail Khan for restoration of possession on the grounds that as the plaintiff-pre-emptor, i,e, the present petitioner has withdrawn a portion of the sale consideration from the court of Civil Judge-III and thus, the decree initially passed had become infructuous and nullity in the eyes of law.
7. The learned trial court while seized of the application aforesaid held vide order in Miscellaneous Application No,77/6 decided on 10-6-2006 that as the pre-emptor had earlier withdrawn, the portion of sale consideration of Rs,35000 from this court and after the reversal of the part of sale consideration to the tune of Rs,70,000 the plaintiff-petitioner was bound to have deposited the sale consideration within thirty days from the Order dated 6-6-2005, in Civil Revision No,8 of 2002, decided by this Court. As the plaintiff has not complied with the order and failed to deposit the same within a month. There was no subsisting decree in his favour in the field.
8. The plaintiff-petitioner filed an appeal before the learned District Judge Dera Ismail Khan, which was entrusted to the learned Additional District Judge-V, Dera Ismail Khan, who after hearing the counsel for the parties vide order judgment. And decree dated 13-1-2007 dismissed the appeal and concurred with the learned trial Court by holding that there was no existing decree in favour of the plaintiff-petitioner as the portion of the sale consideration had been withdrawn. The plaintiff- petitioner has now come up in revision to this Court.
9. Rashid Khan petitioner in person present. He was heard in detail with respect to the factual aspect of the case. He submitted that he has not withdrawn the partial sale consideration which is lying intact in the court of the learned Civil Judge, thus Mr. Umar Farooq Incharge Civil Nazir of the Court of Senior Civil Judge, Dera Ismail Khan was called and his statement was recorded on oath which read as under: "States that Rashid Khan pre-emptor had deposited Rs,70,000 as pre-emption money in view of the order of the Civil Judge in suit No,331/1 of 2000 decided on 10-3-2000 vide Register No,71 dated 16- 6-1992. Subsequently, the plaintiff-pre-emptor had withdrawn Rs,35,000 from the court and now only Rs,35,000 are lying in deposit in the case titled Rashid Khan v. Ghulam Rasool."
10. The reproduction of the statement of the Incharge Civil Nazir would reveal that the plaintiff- petitioner, who was pre-emptor has withdrawn the portion of the sale consideration and resultantly when under the provision of section-24 of the N.-W.F.P. Pre-emption Act, 1987, the Court will direct the pre-emptor to deposit 1/3rd of the probable value of the pre-empted land which shall remain in deposit, if the pre-emptor failed to deposit the same or after deposit withdraw the same, then the suit is liable to be dismissed. Similarly, the court will then finally determine the probable value and will order the pre-emptor to deposit the same within a stipulated period. In this case the decree for pre-emption which had been passed by Miss. Sofia Waqar Khattak Civil Judge-III, Dera Ismail Khan, vide Suit No,331/1 of 2000 decided on 3-7-2000 the sale consideration was fixed to be Rs,seventy thousands and after contest when finally that sale price was maintained up to this court vide Civil Revision No,8 of 2002 which was partially accepted and the sale consideration was fixed by the court which was also maintained in Review Petition No,177 of 2005 decided on 25-10-2005 and the petitioner was supposed to have deposited the same within one month, even if he had withdrawn the same, which was not deposited within one month.
11. The record reveals that initially 1/3rd of the sale consideration had been fixed to be Rs,35,000 but when this Court fixed the sale consideration to be Rs,seventy thousands, the plaintiff-petitioner was required to deposit the remaining sale consideration of Rs,35,000 within one month, which was not done and a portion of the sale consideration was withdrawn by the plaintiff-petitioner vide receipt dated 20-11-2001 thus making the decree to be a nullity in the eyes of law and there was no subsisting decree in the field to be executed.
12. The orders of the trial court as well as of the appellate court are perfectly sound, legal and strictly in accordance with law which calls for no interference.
13. Resultantly, this revision fails, which is dismissed in limine, with no order as to costs. This revision petition has been dismissed vide short order dated 15-2-2008 and the above are the reasons for the same.