MAULVI ANWARUL HAQ, J.--- On 5-11-1984 the appellants filed a suit against the respondents for specific performance of agreement to sell. The suit was contested and trial was conducted. The learned trial Court decreed the suit on 5-11-1984. It will be necessary to reproduce here the operative part of the judgment dated 4-11-1997:-- "21. For, what, has been discussed above, the suit of the plaintiffs is hereby, decreed with costs in their favour and against the defendants except defendants Nos.11, 15, 29 and 34. The plaintiffs are directed to deposit balance consideration of Rs,2919914 after deduction of the price of the land of the defendants Nos.11, 15, 29 and 34 at the rate of Rs,29100 per acre uptill 15-12-1997, failing which the suit of the plaintiffs be deemed to have been dismissed with costs. The defendants are entitled to receive the amount if so deposited by the plaintiffs in the Court and thereafter, they are directed to execute the sale deed of the suit land in favour of the plaintiffs up till 2-1-1998, failing which the plaintiffs have a right to get the execution of the sale deed through the assistance of the Court."
' Against this judgment and decree the respondents filed R.F.A. No,328/97 which was admitted to hearing on 24-11-1997 and execution of the impugned decree was stayed. The R.F.A. Was dismissed by this Court on 3-3-2004. After obtaining copy of the judgment the appellants filed an execution application on 5-4-2004 in the court of learned District Judge, Kasur. It was entrusted to a learned Civil Judge before whom the matter came up on same date, when notice was issued and the record of the suit was also summoned. On 23-4-2004 the Presiding Officer was on leave. The same was position on 8-5-2004. On 24-5-2004 the record was again called for. On 1-6-2004 the records were present and examined in the presence of the counsel for the parties. The learned executing court recorded an order on 1-6-1004 directing the appellants to deposit a sum of Rs,25,48,625.24 by 8-6-2004. Admittedly this amount was deposited on 7-6-2004 and challan was presented in the court. On 2-6-2004 the A respondents filed an application stating that since this Court while dismissing the appeal had not extended the time for deposit granted by the learned trial Court, the suit stands dismissed and the executing court cannot extend time. The application was contested.
It was allowed by the learned executing court vide order dated 14-6-2004 and execution petition has been dismissed.
2. Mian Dilawar Mehmood, learned counsel for the appellants contends that the impugned order is illegal. According to him, the respondents themselves filed an appeal and on their application the execution of the decree was suspended and while dismissing the appeal the matter of grant of time was not considered by this Court. The precise contention is that the execution was filed immediately after dismissal of the appeal and the amount was tendered as soon as it was so ordered by the executing court. He relies on the case of Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790 to urge that notwithstanding the terms of the decree it was not a final decree and had the matter been dealt with in terms of section 35 of the Specific Relief Act, 1877 no fault is attributable to the appellants and no case stands made out for recession of the contract.
Ch. Khurshid Ahmed, learned counsel for the respondents, on the other hand, contends that the said judgment was somehow distinguished in latter case of Tasneem Ismail and others v. M/s. Wafi Associates and others 2007 SCM R 1464 wherein a distinction was sought to be drawn with reference to the terminology used in the trial court's judgment as to the consequence of non- deposit. According to him as per term of the trial court decree it was absolute. He further relies on the case of Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCM R 953 to argue that the appellants by their conduct were not entitled to grant of time to deposit the amount.
3. I have gone through the records with the assistance of the learned counsel for the parties .The operative part of the judgment of the learned trial court has been already reproduced above. The suit was decreed, partly, subject to the deposit of the amount of consideration after deducting the value of the land that was excluded from the decree. I may note in the very beginning that an exercise was not undertaken by the learned trial Court to work out the amount, which was actually to be deposited by the appellants and to issue direction accordingly. This exercise was undertaken for first time by the learned executing court while passing the impugned order dated 1-6-2008 directing the appellant to deposit the specified amount, which was of course, deposited within time stipulated in the said order. Another significant circumstance to be noted is that R.F.A. Filed by the respondents was contested by the appellants and was ultimately dismissed vide judgment dated 3-3-2004 and a decree sheet was prepared in terms of Order XLI, Rule 35, C.P.C. However, notwithstanding the fact that the execution had been stayed by the court, no provision was made either in the judgment or in the decree in the matter of time for deposit of consideration amount.
4. Coming to the said contentions of the learned counsel for the parties as to the form and substance of a decree for specific performance Order XX, C.P.C. Is silent. However, Order XXI, Rule 32 provides for manner of execution of such decree. Even a form for such decree is not provided in Appendix-D in C.P.C. Be that as it may, there is no bar upon a trial court to impose condition of deposit of the amount of consideration while passing a decree for specific performance of agreement to sell.
5. The said condition, its consequence and matter of extension of time had been considered by the Superior Judiciary of the country over a period of time and apparently the matter was brought to rest in the said case of Shabbir Ahmed and another v. Zahoor Bibi and other PLD 2004 SC 790 decided on 22-7-2004 by the Hon'ble Supreme Court. Several judgments both from Pakistan and India jurisdiction were referred and considered and following conclusion was recorded in para 16 of the judgment pages 800 and 901 of the report:-- "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."
' The case of "Tasneem Ismail and others" being relied upon by Ch. Khurshid Ahmed, Advocate was decided on 4-4-2007. I have examined the same and I find that the said earlier view has been fully affirmed. The ultimate view expressed is that the time stipulated by the learned trial Court in the decree for deposit of amount can be extended. The :matter, however, has to be dealt with on the touchstone of section 35 of the Specific Relief Act, 1877. I deem it proper to refer to some vital aspects of the said cases cited by the learned counsel for the parties. In the case of "Shabbir Ahmed and another" the courts below had refused to extend time on the ground that they have become functus officio the appeals were allowed and it was directed that the balance amount shall be paid at the time of execution of sale deed. It will be seen that it appears that in these cases appeals had not been filed.
6. In the said case of "Tasneem Ismail and others" pursuant to the agreement recorded by the Hon'ble Supreme Court. On 19-11-1998 in C.P.L.A. Arising out of conditional order of temporary injunction, a decree was passed on 21-11-1998 and the decree-holders were directed to pay the amount of consideration till 21-1-1999 i,e, four months as agreed before the Hon'ble Supreme Court.
It further appears that the decree was assigned to one Abdul Waheed and an application was filed by the decree-holders and said Abdul Waheed the assignee that they be allowed to deposit the decretal amount. The application was, however, dismissed and appeal was filed in this Court.
During the pendency or the appeal the decree-holders proceeded to make another assignment in favour of one Muhammad Ashraf. However, this development was not reported to the court. The appeal was allowed and the joint application filed by the decree-holders and first assignee was allowed and they were granted 3 days time to deposit the balance amount. This order was passed on 11-5-1999. The vendors filed C.A. No,823 of 2002 in the Hon'ble Supreme Court, which was decided vide the said reported judgment. After affirming the principles laid down in the earlier judgment in the case of "Shabbir Ahmed and another" it was held that this Court was competent to extend the time. However, the finding recorded was that Mian Abdul Waheed the first assignee who was joined by the decree-holder in the said application and which application was allowed by this Court had not deposited the amount rather the amount was deposited by the said Muhammad Ashraf and it was held that assignment in his favour was illegal. It was further observed that even the said Muhammad Ashraf withdrew the amount deposited by him and as such there was never any deposit despite extension of time. In the said case of Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCM R 953 the judgment was recorded with reference to failure of the plaintiff to make deposit even within extended time.
7. Coming to the facts of the present case in the light of said legal position as noted by me above.
The decree was passed on 4-11-1997.. The appeal was filed by the respondents and execution was stayed on 24-11-1997. Insistence of Ch. Khurshid Ahmed, Advocate that notwithstanding the said stay of execution the appellants ought to have made the deposit within the period of time fixed by the learned trial Court is rather misplaced. The deposit itself being a step in execution of the decree or to borrow words from the said judgment in the case of. Shabbir Ahmed and another "performance of the said contract", the stay order issued at the instance of respondents themselves certainly absolved the appellants of the said obligation till such time that the stay order remained in force. R.F.A. Was dismissed on 3-3-2004 and as noted above the matter of time for deposit could not be attended to. Copies were obtained and execution was filed on 5-4-2004. I have already referred to proceedings in the executing court above. The moment record were received and the order for deposit was passed and it was duly complied with. In the said circumstances of the case apparent on the face of record it cannot at all be said that the appellants committed any default enabling the court to adjudge the contract as rescinded. The E.F.A. Is accordingly allowed. The impugned order dated 14-6-2004 is set aside. The result would be that execution petition shall be deemed to be pending. The parties shall appear before the learned Senior Civil Judge, Kasur on 14-1-2009. The learned Senior Civil Judge shall further proceed in the matter in accordance with law. No order as to costs.
' A copy of this judgment along with records be immediately remitted to the learned Senior Civil Judge, Kasur.