' MUHAMMAD ASHRAF BHATTI, J.-Briefly stated the facts giving arise to the filing of the petition in hand, are that Mirza Ayub Baig and Mirza Mehboob Baig respondents Nos.l and 2 (hereinafter referred as 'respondents') filed a suit for specific performance against Mst. Ruqia Begum (since died), mother of the petitioners. This suit was decreed by the learned Civil Judge, Gujranwala in favour of the respondents by judgment and decree dated 4-1-1994 with the direction to deposit consideration money of Rs,3,22,760 uptil 22-2-1994 failing which the suit was directed to be deemed to have been dismissed. Since the respondents had raised a plea that an amount of Rs,80,000 had already been paid to the son of said Mst. Ruqia Begum, about which the learned trial court did not utter a single word, they filed Regular First Appeal No,23 of 1994 against the said judgment and decree of the learned trial court and so the operation of the same was suspended to the extent of Rs,80,000 by order dated 14-2-1994. However, in the meanwhile the respondent deposited the remaining amount of Rs,2,42,760 in the learned trial court on 22-2-1994 i.e, within the prescribed period fixed in the aforesaid judgment.
2. Later on, the aforesaid Regular First Appeal No,23 of 1994 came to for final hearing and the same was dismissed by this Court on 22-4-1997. The respondents filed an application on 25-6-1997 to the learned trial court seeking permission to deposit Rs,80,000 which was allowed on the same day and the respondents were ordered to deposit Rs,80,000 uptil 30-6-1997. It is not denied by the parties that this order was complied with accordingly by the respondents.
3. Mst. Ruqia Begum and others filed an application for review of the order dated 25-6-1997 granting extension in time to make deposit of Rs,80,000 which was contested by the respondents and then by order dated 19-4-2003 the learned trial court dismissed the same. The petitioner being legal heirs of Mst. Ruqia Begum filed a revision petition against the said order which too was dismissed by the learned Additional District Judge, Gujranwala by order dated 10-5-2003. Hence, this constitutional petition.
4. It has been contested by the learned counsel representing the respondents.
5. Both the parties have been heard and bailable record perused.
6. Inter alia, it is argued by the learned counsel for the petitioners that after passing the decree and fixation of date for deposit of the decretal amount the learned trial court had been a fuctus officio with no jurisdiction to enlarge the time or to further seize of the matter for the purpose of deposit of Rs,80,000 when on failure of the respondents to make deposit of the balance consideration within the cut off date, suit already stood dismissed in pursuance of the direction of the learned trial court.
According to him granting permission in reality was tentamounting to modify the decree and that too without hearing the petitioners.
7. In support of the above arguments reliance was placed on Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983, Nizain-ud-Din and 13 others v. Ch. Muhammad Saeed 1983 CLC 1682 and Bashir Ahmed and another v. Hussain Industries (Pvt.) Limited 2003 YLR 55, Amjad Malik v.
Muhammad Saleern and others 1992 MLD 31, Rukhsana Kausar and another v. Additional District and Sessions Judge, Khanewal and 11 others 2000 CLC 585 and Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905.
8. Contrary to the above contentions, learned counsel for the respondents while having rfelied upon Nasir Ahmad v. Muhammad Yousuf PLD 1994 Lah. 280, Muhammad Riaz Qamar v. Umar Din and 3 others 1985 CLC 474 and Shabhir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790 submitted that the controversy as to enlargement of time in terms of section 48, C.P.C, read with section 35 of the Specific Relief Act, has been set at rest by the Hon'ble Supreme Court of Pakistan declaring that no matter even if a decree for specific performance is passed it yet remains a preliminary decree to fulfil some acts in future and so the court that passes the decree retains control over the lis and is quite competent to enlarge the time. He has pointed out that in appeal this court did not fix any specific date for deposit of Rs,80,000. So, therefore, it was none of the fault of the respondents to make deposit within the time granted by the learned trial court when they approached the said forum after obtaining certified copies of the judgment of this court passed in Regular First Appeal No,23 of 1994, without which the learned trial court could not pass such an order nor the respondents acted negligently to cause undue delay for either obtaining certified copies of the judgment of this court or approaching the learned trial court for extension of time/permission to deposit the requisite amount of Rs,80,000 yet to be paid by them. He went on to say that in the presence of both the parties the Regular First Appeal was dismissed by this court which was sufficient notice to the petitioners, in a way direction to the respondents also to make the said deposit within reasonable time. Learned counsel for the respondents vehemently opposed the contentions of the learned counsel for the petitioners as to his stance that since the stay was granted on 13-2-1994 when only 8 days were left to deposit the balance amount and so keeping in view the decree drawn in pursuance of dismissal of the appeal on 22-4-1997 the said deposit of Rs,80,000 had to be necessarily made within 8 days thereafter.
9. After having heard both the learned counsel for the parties it is observed that the respondents had performed substantial part of the contract by making deposit of major portion of the decretal amount within the cut off date fixed by the learned trial court in its judgment and decree dated 4- 1-1994. There is also no cavil to the proposition that there is no prescribed form of decree sheet for cases of specific performance like a decree for pre-emption. It is important to note that the decree drawn by this court directed the compliance in terms of the decree passed by the learned trial court which made mention of specific period of time for the deposit to be made, which in the meantime had already elapsed. So, therefore, it was by only implication that the learned counsel for the petitioners wanted to convinces that the only "time period" available to the respondents was 8-days for which there is no legal backing highlighted and so I intend to agree with the learned counsel for the respondents that the deposit had to be made within reasonable time for which the respondents needed a formal order for deposit after having obtained certified copies of the judgment passed from this Court. That they did without any undue delay.
10. Coming to the question of jurisdiction of the learned trial court to extend time it has been the consistent view of the Indian jurisdiction as well as that of the superior courts of this country that in a case of decree of specific performance of contract where the decree-holder fails to make payment of the decretal amount within the time fixed by the court and the judgment-debtor also does not take up the matter with the concerned court for rescission of the contract in terms of section 35 of the Specific Relief Act, the court that passes the decree still continues of having control over the lis. The cases supra cited by the learned counsel for the respondents support this view.
11. Indeed, in a case cited as Abdul Shaker Sahib v. Abdul Rehman Sahib AIR 1923 Mad. 284 when faced with similar situation the Madras High Court examined the proposition and held that extending time for making deposit under a decree is not modification of the decree and hence where the original 'decree had merged in the decree of the High Court, the court which passes the decree an extend the time even after it expiry under section 148, C.P.C. The principle laid down by Madras High Court was followed in Nasir Ahmad v. Muhammad Yousuf (Supra) and a line of demarcation was drawn between a decree for specific performance and the one passed in a suit for pre-emption. In a suit for preemption situation would go quite opposite if the decretal amount is not paid within the cut off date but in a decree for specific performance, as aforesaid, the learned trial court would retain the power and no matter even if the decree was passed, can extend the time after its expiry because such decree is nothing but an agreement to do something in the future. In the aforesaid judgment the issue under reference was examined in depth and elaborated at sufficient length in the light of the different views of various jurisdictions. l2. Previously this Court was of the view that in a case of conditional decree the power already stood exhausted as held in Amjad Malik v. Muhammad Saleern and 5 others 1992 MLD 31 and Rukhsana Kausar and another v.
Additional District and Sessions Judge Khanewal and 11 others 2000 CLC 585 but the consensus later on was that till a contract is not got rescinded by the judgment-debtor under section 35 of the Specific Relief Act, it remains alive and the learned trial court would have the power to extend time for making necessary deposit. The Hon'ble Supreme Court in Amjad Malik v. Muhammad Saleern and 5 others (supra) also held in the same way. For facility of reference relevant portion of the judgment is reproduced as under:- "In Bhujangrao Ganpatj's case, a decree for specific performance had been passed directing the purchase money to be deposited by a specified date and saying that the suit would stand dismissed if the money was not so paid. Vimadalal, J. Agreed with the view taken in another case that "in a conditional decree for specific performed of the nature contemplated by section 28(1) of the Specific Relief Act, 1963, the court would have the power to grant an extension of the time for payment fixed under that decree". Vimadalal, J., however, was of the opinion that the case before him was not a decree under section 28(1) of the Specific Relief Act, "it is a self-operative final decree which provides in express terms that if the payment is not made within the time fixed, the suit is to stand dismissed. In the case of such a decree, it is impossible to apply the provisions of section 28 of the Specific Relief Act, 1963, which for stance, provides for a subsequent application for the rescission of the contract itself, and for certain consequential orders." Vimadalal, J. Derived support for this case from a decision of a Division Bench of that court also a case under section 28 of the 1963 Act, where it had been held that "the failure on the part of the plaintiffs to carry out the terms of the decree had automatically resulted in the disposal of the suit and the Court had become functus officio and had no power to grant an extension of the time fixed by the decree. "
13. Keeping in view the position of the facts before me the case of the respondents was much more stronger to seek extension when there was neither any prescribed form under the law for drawing a decree of specific performance nor while dismissing their appeal any specific date was given for deposit of the remaining amount after deposit of the major portion of the decretal amount in the learned trial court and specially no objection was also raised by the petitioners regarding the fixation of a specific date for depositing the balance amount at the time of aforesaid Regular First Appeal.
14. The upshot of the above discussion is that the petitioners have failed to make out a case for interference by this Court in its constitutional jurisdiction nor any illegality has been pointed out in the impugned order. The record is also not supporting the plea that any injustice has been done to the petitioners. So, therefore, on all scores the petition in hand fails and is accordingly dismissed with no orders as to costs.