' Kh. Shahad Ahmed J.--Civil Appeal No, 17/2005 has been filed against a judgment of the High Court recorded on 16.6.2004 whereby a review petition filed against a judgment and decree of the High Court dated 19.1.2004 is dismissed.
2. The precise facts of the case are that one Mehtab Din and others filed a suit in the Court of Civil Judge Kahuta for specific performance of a contract. The suit was decreed by the trial Court vide its judgment dated 28.2.1989. The first and the second appeal filed in the Court of District Judge and before the High Court met the same fate and finally this Court also approved the findings recorded by all the three Courts below. This Court dismissed the appeal on 7.11.1995. The decree passed by the trial Court in favour of the appellants was in terms that respondent will obtain sale- deed after depositing Rs,9225/- within 30 days failing which the plaintiff had to deposit the same amount till 2.5.1989. The respondents failed to comply with the order of the trial Court within the stipulated period. When the controversy on merit concluded in the Supreme Court, the respondent moved an application for execution of decree before the Civil Judge Kahuta on December 13, 1995, which application was rejected on 29.4.2000 on the ground that it has been filed after the prescribed period of limitation. The learned Additional District Judge Judge vide judgment and decree dated 15.1.2002 accepted the appeal and remanded the case to the trial Court. This Order dated 15.1.2002 was assailed before the High Court mainly on the point that the order of the trial Court directing the respondent Muhammad Amin to deposit Rs,9225/- within 30 days having not been followed, the judgment and decree recorded in their favour had become ineffective and inoperative. The learned Judge in the High Court by accepting the appeal filed by Mehtab Din and Aziz Din recalled the findings recorded by the District Judge and restored the order recorded by the Civil Judge Kahuta. The learned Judge in the High Court based his findings on the admitted position between the parties that no suspension order was issued by any Court of appeal, therefore, the period fixed by the trial Court in the original decree for ordering the parties to deposit the decretal amount couldn't be extended. The learned Judge observed as under: "The moot point in my estimation is to consider the effect of failure to complying with the order of the trial Court. The trial Court directed the respondent to obtain sale-deed after depositing the money within 30 days. The order has not been complied with nor has been got suspended from the appellate Courts."
3. On this moot point the learned Judge held that the decree in favour of respondent Muhammad Amin Shah stood frustrated for not complying with the order of the Court. The High Court also held that the question of limitation was not directly involved in the case as the order of the trial Court has become ineffective. A review petition was filed by the present appellants in the High Court through Misc. Application No, 58/04, which has been dismissed through the impugned judgment.
4. Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellant, has assailed the correctness of the judgment recorded by the High Court by submitting that the High Court has not taken into consideration that the decree for specific performance in favour of Mehtab Din (predecessor-in-interest of Respondents No, 1 to 7) and Aziz Din (predecessor-in-interest of Respondents No, 8-A and 8-B) was granted in terms that the appellant will obtain the sale-deed after deposit of Rs,9225/- within 30 days failing which Mehtab Din and Aziz Din had to deposit the same amount up to 2.5.1989. When the case came before the District Judge the said decree was amended and a period of two months was given to deposit the said amount. The order of the trial Court was not assailed by the respondents, therefore, they had failed to perform their part of the contract within the stipulated period fixed' by the trial Court. In the estimation of the learned counsel the High Court failed to attend to this point. His other argument is that the limitation for execution of the decree starts from the date of final judgment of the apex Court, which was passed on 7.11.1995 and the application for execution of decree was moved on 13.12.1995. He further submitted that statutory period for execution of decree of specific performance was 3 years and it was rightly held so by the Additional District Judge Kahuta but recalled by the High Court through the impugned judgment. While elaborating his arguments to dispute the correctness of the judgment, Syed Nazir Hussain Shah Kazmi, the learned counsel, very strongly contended that if a stay order has not been issued, once the judgment and decree passed by a trial Court is challenged before the appellate forum, the same cannot be executed during pendency of appeal.
He has placed reliance on Articles 48 and 183 of the Limitation Act to contend that a decree for specific performance can be executed within 3 years.
5. As against it, it has been contended on behalf of the respondents, that the period fixed by the trial Court for obtaining sale-deed after depositing the decretal amount was 30 days which order of the Court was not complied with by the appellant nor was stay order obtained from an appellate forum, therefore, the judgment recorded in appeal or review by the. High Court is legally correct. He has also submitted that the predecessor-in-interest of the respondents had deposited the amount mentioned in the decree within stipulated period, therefore, the argument that in the first round of litigation the appellant was allowed two months for depositing the decretal amount and that the respondents having not been allowed extended time, doesn't generate any right for the appellant to justify his failure to comply with the order of the Court. In his estimation the original order which had fixed the date for depositing decretal amount for the appellant and after his failure for the respondents having been complied with by the respondents, the decree recorded in favour of the appellant has become ineffective.
6. After considering the arguments of learned counsel for the parties we may observe here that the majority of the arguments raised at Bar by the learned counsel for the appellant cannot be considered in this appeal as the appeal has been filed against the order recorded by the High Court in review petition. The points decided by a Court of law in original lis cannot be re-opened and reconsidered in the review petition and the scope of review remains limited only to the points of facts which have been taken in the original appeal. The learned counsel in his petition for leave to appeal and the concise statement has repeatedly submitted that he argued all these points before the High Court but these point do not find mention in the judgment passed on appeal or in the order passed on review petition. These assertions of the learned counsel for the appellant cannot be accepted as a routine. We, therefore, restrict ourselves only to the moot point to be narrated herein-below to settle the controversy brought before this Court. The proposition is identical to the questions which usually arise out in pre-emption cases where decrees are drawn by adjudicating upon rival claims to pre-emption or the Court orders for deposit of any amount or furnishing securities before further proceedings commence. In such cases admittedly the order of the Court has to be complied with, failing which the suit or cause has to be dismissed or the decree to become ineffective and inoperative.
7. We conclude the controversy by holding that once a decree with a condition has been passed, it is not within the competence of the Court to extend the time specified in the decree for payment of the amount and that the decree has to be executed as it is and failure on the part of a party to comply with the order renders the decree as inoperative. We may also rush here to observe that we do not entertain any cavil with the powers of the appellate Court to extend the time specified in the decree and in that case the decree can be executed within the period specified by the appellate Court. In the present case the appellate Court, as has been contended, extended the time of two months, which obviously means that the needful had to be done by the appellant within that specified period, which admittedly has not been done in the present case. Even if we accept the version of the appellant that the period specified by the trial Court has to be computed from the date of judgment of the Supreme Court, we still find no force in the arguments of the learned counsel for the appellant as the appellant didn't deposit the amount as directed by the trial Court within 30 days from the date of passing of the final order by the Supreme Court. This argument of the learned counsel along with his version taken in the memorandum of appeal that filing of appeal is sufficient to allow an I extended period for the appellant to deposit the decretal amount, is also devoid of any legal force as in presence of a specific provision to I C, the contrary the version so advanced cannot be accepted. We may beneficially refer to Order XLI Rule 5 of the Civil Procedure Code, which postulates as under: "An appeal shall not operate as stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an Appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree."
The above order clearly provides that an appeal itself cannot operate as stay of proceedings in a decree, or order appealed from. It is only possible when specific order has been issued by the Court itself.
8. Syed Nazir Hussain Shah Kazmi, the learned counsel, has consumed more time in advancing the argument that an application for execution of a decree for specific performance of a contract can be filed within 3 years. In this respect he has referred to Articles 48 and 183 of the Limitation Act read with Section 48 of the Civil Procedure Code. We do not and obviously cannot dispute that a decree can be executed within 3 years as provided by the relevant provisions of Limitation Act and that Section 48 prescribes the period of 6 years as the outer limit but these provisions are limits for time for execution which means that after expiry of the specified period an application or a fresh application for execution cannot be entertained. The case in hand is not one of the period of limitation for filing the execution application, the controversy set forth for consideration is consequence of failure by a party which has been directed to deposit the decretal amount within the specified period. The appellant cannot, therefore, claim that although he was directed by the trial Court to deposit the decretal amount within a specified time, he can deposit the same and the decree so passed can be executed on application filed in the Court within 3 years. This could only be possible if the appellate Courts had issued specific stay order to that effect, which is missing in the present case.
' Upshot of the above discussion, therefore, is that the appeal merits dismissal with costs, which is ordered accordingly.