Briefly stated the facts giving rise to the filing of the present appeal are that on 28-9-1945 one Fateh Bibi, widow of Hayat A.I sold some land situate in village Marri Khokharan, Tehsil Gujrat to Allah Ditta and others. In 1946, Talib A.I a brother of Hayat A.I, the deceased husband of Fateh Bibi filed a usual declaratory suit under the customary law. On 8-1-1947 the suit was decreed. In 1954, Fateh Bibi died and a suit for possession was filed which was also decreed. An application was made for the correction of the numbers in the decree and the same was dismissed on 27-1-1957.
On 31-:-1962 the present suit was filed for declaration out of which the present appeal has arisen.
The respondents contested the mutation in consequence of the decree on the ground that all Khasra Numbers were not mentioned in the suit or the decree sheet. The Revenue Authorities ordered the mutation of only those Khasra numbers which had been specifically mentioned in the decree sheet and had directed the parties to have recourse to the civil Court in respect of the other Khasra numbers. The civil suit was filed to challenge the order of the aforesaid Revenue Authorities and for a declaration that the appellants were the owners of the remaining land. This suit was contested by the respondents and it was specifically objected to that the suit was not maintainable for the non-compliance of the provision of Order VlI, rule 3 of the Civil Procedure Code. The precise objection of the respondents was that the identity of the immovable property which was the subject-matter of the suit had not been made out. The learned trial Court ordered that the plaint should be amended and directed the appellants to give the complete discreption of the property. In spite of the fact that two amended plaints were filed but yet the details of the property had not been given. A specific .Direction was given by the learned trial Court on 28-5-1965 to give the requisite discreption by 1-6-1965 and this having not been complied with the suit was ordered to be dismissed under Order XVII, rule 3 of the Civil Procedure Code. The appellants filed an appeal against the said order against which preliminary objections as regard the maintainability was taken. (t was also contended that the appeal was barred by time because a copy of the decree sheet had been obtained and filed after the expiry of the period of limitation and that the memorandum of the plaint was not sufficiently stamped. Objection as regard the maintainability of the appeal on the ground that the order of dismissal of the suit was in the exercise of the inherent powers of the Court and did not fall under Order XVII, rule 3 of the Civil Procedure Code and by merely mentioning a wrong rule would not change the complexion of the order. Reliance in this behalf was placed on Inayat Ullah v. Khan Begum PLD 1958 Lah. 686. The facts of this case are that the plaintiff had been directed to put in fresh process fee for effecting service of the answering defendants. He having failed to comply with the order another opportunity was given on the payment of costs. On the date thus fixed for hearing it was discovered that the plaintiff in consistency with his usual conduct had failed to pay the process fee and over and above declined to pay conditional costs to the opposite-party. The learned trial Court instead of dismissing the suit under Order IX, rule 2 and section 151, C. P. C. Dismissed the suit under Order XVII, rule 3, C. P. C. An appeal was filed in the Court of Senior Civil Judge and the same having been dismissed an appeal was filed in the High Court. The question that arose for determination in this case was whether Order XVII, rule 3 could be invoked by. The learned trial Court. In fact the suit was dismissed under Order IX, rule 2 read with section 151, C. P. C. Whether an appeal was competent. It was observed that such an order was not appealable and a revision having not been filed the seconds appeal was also held not to be maintainable. The facts of the present case are almost identical and no appeal against that order was maintainable, as a decree
2. The learned counsel for the respondent has pointed out that eve if the appeal was competent the same was barred by time because the decree sheet was drawn in this case by the trial Court on 22-6-1964 and an application for its certified copy thereof was made on 23-7-1964 i. e. After the expiry of the period of limitation. This copy was ready for deliver on 8-9-1964 and submitted in Court on 19-9-1964. Moreover, the. Memorandum of appeal was affixed with a court-fee of Rs. 2.25, whereas a court-fee of Rs. 15, as fixed before the trial Court was to be fixed in appeal.
3. In Municipal Committee, Chiniot v. Bashi Ram (A I- R 1922 Lah. 170), it was held that if a copy of decree is not filed even when there is no decree in existence, there was no proper presentation of appeal. It was further held that the appellant was entitled to the exclusion of time from date of application to the date of preparation of copy or even from the date of judgment he is not entitled to the exclusion of time between the date of preparation of cop and application for copy of decree.
In the present case as already observed the application was made after the expiry of limitation and the copy was ready for delivery on 8-9-1964 and the copy was tendered in Court on 19-9-1964.
Even if the decree was not prepared while passing the order the appeal vas not competent
4. The learned counsel .For the respondents has relied on Muhammad Ghazonfar v. Mst. Nur Basar (PLD 1952 Lah. 156), for the proposition that the delay of each day is to be explained. In the present case, however, it may be observed that no application for . Condonation of delay was ever made before the learned Additional District Judge. The memorandum of appeal was also in--sufficiently stamped and no effort was made to make the deficiency within the period of limitation and no sufficient cause had been made out for the extension of time under sections 148 and 149, C. P. C. It is an established proposition of law that an appeal is deemed to be filed only on the day when the deficiency, in the court-fee is made up and reliance in this behalf may be placed on Balwant Singh v. Jagjit Singh (AIR 1947 Lah. 210) and Mst. Walayat Khatun v. Khalil Khan (PLD 1979 SC 821).
5. Even on merits the appellants have no case. The appellants had already filed a declaratory suit and an application for the correction of the numbers in the decree had already been dismissed.
The appellants ought to have been in the first instance, , incorporated the correct number in compliance of Order VII, rule 3, C. P: C. Or at least given the particulars thereof under the directions of the Court. The' learned trial Court had shown sufficient indulgence to the appellants and adjourned the case for several hearings. As the compliance of the order had not been made the Court had the inherent powers to dismiss the suit. Strictly speaking Order XVII, rule 3, C. P. C. Was not applicable. .
6. In view of the above discussion this appeal has ,no force and is hereby dismissed with costs.