RANA ZAHID MAHMOOD, J--- Present is a Constitutional petition against the order dated 8.11.2006 passed by learned Additional District Judge, Lahore, whereby the dismissed a revision, petition fired by, the petitioner against an order dated 10.6.2006, whereby the learned Trial Court dismissed an objection petition filed by, the petitioner against the grant of an application filed by the respondent under Section 148, ,CPC for extension of time'for deposit of Rs. 100/, in performance of the decree passed in favour of the respondent by the learned Trial Court on 19.9.2003 in his suit for specific performance of agreement regarding suit property, wherein the learned Trial Court had directed the respondent/plaintiff to 'make the payment of balance consideration of Rs. 100/- to the petitioner/defendant within 30 days of the passing of the decree and the respondent failed to pay Rs. 100/- within the stipulated period and then filed application for extension in time depositing the balance consideration of Rs. 100/-
2. The learned counsel for the petitioner has submitted that after the passing of the decree in the suit for specific performance of agreement filed by the respondent against the petitioner vide order dated 19.9.2003, the Trial Court had become functus officio, particularly after passage of 30 days' time given to the respondent to make the balance payment and submitted that since the respondent applied for extension in time vide application dated 21.10.2003, therefore, the application was delayed by two days and with reference to 2004 YLR 985 submitted that since the Trial Court had become functus officio after decreeing the suit, it could not extend time under Section, 148, CPC. He, therefore, submitted that both the Courts below failed to take into consideration the provisions of Section 148, CPC in its correct perspective and submitted that case- law on the subject is very clear that bar provided under Section 148, CPC was absolute and admitted no exception to the rule laid down, therefore, he submitted that impugned order is illegal.
Thus is liable to be set aside.
3. Learned counsel for the respondent has vehemently opposed the contentions and submitted with reference to case-law reported as "Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed and 7 others (1987 CLC page 1682) that the Trial Court does not become functus officio and submitted that facts of each case are required to be 'taken into consideration in their on peculiar circumstances while allowing application under Section 148, CPC and submitted that the suit was decreed on 19.9.2003, while the respondent applied for certified copy of the judgment and decree on 24.9.2003 and the copy was prepared on 21.10.2003 and was delivered to the respondent on the same day. As such, there is no delay on the part of the respondent in getting the copy and when after going through the judgment and decree, the petitioner learnt that Rs. 100/- was to be deposited within 30 days, he filed application under Section 148, CPC there and then, as such there was no delay caused by the respondent, therefore, under Section 148, CPC read with Sections 12 and 35 of Specific Relief Act, the Trial Court was competent to extend time and vide order dated 10.6.2006, it allowed the application and granted the respondent 10 days to deposit Rs. 100/-. He submitted PLD 1967 Dhaka page 557, 1985 CLC page 474, 2003 SCMR page 1202, 2003 CLC page 1705, 1999 MLD 1466 and PLD 2004 SC 790 in support of his contentions.
4. Arguments heard. Record perused.
5. Certified copy of the judgment and decree applied for by the respondent vide application .
Dated 24.9.2003 was provided to the respondent on 2.10.2003 when it had been prepared on 21.10.2003 as well. The' respondent, therefore, in no case could be alleged to have committed any default in the making of payment of balance amount under the decree within the stipulated period. There is no substance in the argument advanced by the learned counsel for the petitioner that after passing of the decree, the learned Trial. Court had become functus officio and had no jurisdiction to enlarge time under Section 148, CPC. Circumstances of the case 'as detailed above warranted extension of time by the learned Trial Court under Section 148, CPC on the application of the respondent for deposit of Rs. 100/- balance consideration under the ,decree dated 19.9.2003 and a reference in this regard can be made to Sections 12 and 35(c) of Specific Relief Act, 1877. In the case of Shabbir Ahmad and another v. Zahor Bibi and others (PLD 2004 SC 790), it was held by a Full Bench of the Hon'ble Supreme Court that the Court granting a decree in suit for specific performance, did not become functus officio and that a decree passed in such suit was in the nature of a preliminary decree, as such, the Trial Colirt had the power to pass further order in that regard. It, therefore, cannot be said that there is absolute bar in the exercise of jurisdiction by the Trial Court after passing ,of the decree as it does not become functus officio and retains the jurisdiction to, extend time in appropriate'cases as has also been held in PLD 1967 Dhaka page 557, 1987 CLC 1682, 2003 CLC page 1705, PLD 2004 SC 790, In the case-law referred to above by the learned counsel for the petitioner i.e. 2004 YLR 985, case of Hall Abdul Latif and four others v. Attiq Ahmad and three others", it was held that till the time such decree becomes final, Court passing decree keeps seizing over the /is and can extend time but not thereafter. Case-law in hand also poses no confrontation to the 'order dated 10,6.2006 passed by the learned Trial Judge in the peculiar circumstances of the instant case as respondent had come to know about said stipulation of deposit of Rs. 100/- within 30 days only on 21.10.2003 when copy was delivered to him which was also prepared on the same day, as such he filed an application under Section 148, CPC on the same day for extension of time. The learned Trial Judge thus had not lost seizin over the matter and was competent to extend time. No exception, therefore, can be taken to the impugned orders passed by the two Courts below. Petition is without merit and is, therefore, dismissed. Parties to bear their on costs.