1. MUHAMMAD APZAL ZULLAH, J.-This appeal through special leave calls in question judgment dated 10-7-1977 of the Lahore High Court ; whereby a first appeal in the High Court (No. 57 of 1977) from the order of a learned Civil Judge refusing execution of a pre-emption decree in favour of the respondents-plaintiffs was set aside. Respondents' mother Mst. Slam Bibi had sold the suit land to the appellants for Rs. 1,40,000. A pre-emption suit filed by the respondents was decreed. They were directed to deposit the balance of the sale price which was fixed at Rs. 1,40,000 till 30th June, 1975, failing which their suit was to be treated as dismissed. They did not deposit the balance of sale price and challenged the decree in the Lahore High Court on question of the sale price. It was dismissed by a Division Bench on 22-12-1975 with the following operative direction regarding the payment of the balance price :-- "While admitting the appeal for regular hearing on 30-6-1975, this Court had suspended the payment of the balance amount of the sale price in dispute. In the circumstances, therefore, we extend the time for the deposit of balance of the decretal amount in appeal by the 18th January, 1975 at the latest."
2. Respondents did not make the deposit till :8th January, 1976 and challenged the High Court's judgment in the Supreme Court through a petition for special leave to appeal (No. 61 of 1976 An application was moved along with the leave petition for suspension of the order of the High Court dated 22-12-1975 ; whereby the respondents were required to deposit the balance of the sale price by 18th January, 1976. The application could not be heard before 18th of January, 1976. It was ordered to be heard on 16th January, 1976 but as stated, it could not be decided on that date and was ordered to be fixed for hearing along with the petition. In the meanwhile, another application was moved by the respondents with the prayer that "the operation of the judgment and decree dated 22-12-1975 may be held inabeyance and further time of fifteen days may be granted" By the order dated 19-1-1976, a learned Single Judge of this Court passed the follow--ing order.
3. "Time or depositing the decretal amount is extended by one week, i. e. up to and including the 26th of January, 1976, subject to all just exceptions.
4. Let the petition be fixed for hearing during this week after expediting the despatch of paper books from Rawalpindi."
5. The petition for leave to appeal came up for hearing on 28th of January, 1976. It was dismissed on the same day with the following order regarding request for further extension of time :-- "The learned counsel, however, submitted that one of the petitioners was minor and unless time is extended for the deposit of the balance of the sale price his interests which ought to be protected by the Court will be gravely prejudiced. We regret that this is not possible unless leave is granted and the appeal is heard on merits. But there is hardly any ground for grant of leave. That being so, the petition is dismissed."
6. The respondents had made the deposit of the full balance sale price on 26th January, 1976. The request by their learned counsel on 28th January, 1976 for extension of time for the deposit it has been found by the High Court, was on account of the ignorance of the counsel that the amount had already been deposited. Be that as it may, after the dismissal of the leave to appeal petition by the Supreme Court, the respondents/plaintiffs sought execution of the pre-emption decree. The present appellants raised objection that the deposit having been made beyond the time allowed by the High Court and the leave to appeal petition having been dismissed by the Supreme Court, in law there was no extension of the time, therefore, the decree could not be executed. The learned executing Court upheld the objection and dismissed the execution application. The respondents filed an appeal before the District Court but it was returned to them as according to the value, the first appeal lay before the High Court. Accordingly, it was presented in the High Court. A learned Single Judge, after examining the objection of the appellants which prevailed with the learned executing Court held that the extension of time by the Supreme Court up to 26th January, 1976, was lawful and effective notwithstanding the dismissal of the leave to appeal petition filed by the respondents. He accordingly allowed the appeal and directed the executing Court to execute pre- emption decree in accordance with law.
7. Special leave to appeal was granted in the facts and circumstances of this case to examine the following contention then raised from the appel--lants' side; that the view taken by the High Court with regard to the interim order dated 19-1-1976 that it was a distinct and independent order was not tenable the interim order is connected with and ancillary to the judgment, order or decree and fall with the same and became ineffective and inoperative on the final determination of the said appeal or proceeding, as it had no separate entity and did not operate so as to amend or modify the impugned order or judgment, unless it was ratified or endorsed in the final judgment. The learned counsel also submitted that the High Court failed to observe that the time for deposit of the balance of the sale price by 18th January, 1976, at the latest given in the judgment of the High Court had already run out and that the interlocutory order passed on the 19th January, 1976, extending the time for another week was qualified to the effect that it was "subject to all just exceptions" and it could not be deemed to mean that it had extended the time limit irrespective of the finalorder that might be passed in the main petition. Therefore, the conclusions reached by the High Court were erroneous."
8. The learned counsel for the appellants has sought permission to raise two further contentions in addition to those mentioned in the leave granting order : firstly that the first appeal before the High Court was time barred; and secondly, that the amount deposited by the respondents on 26th January, 1976 was short by a certain sum which was payable by the respondents as costs. The learned counsel for the respondents objected to the grant of permission sought by the appellants.
9. After hearing both the learned counsel on this aspect, we did not consider it just and proper to grant permission to the appellants to raise additional points. The learned counsel for the appellants then reiterated the contentions raised at the leave to appeal stage which, briefly stated, could be considered in the form of three questions.
(1) Whether the extension granted by the Supreme Court on 19th January, 1976 during the pendency of the petition for leave to appeal could at all be effective, in face of the reality that on 18th January, 1976 the time granted by the High Court had expired and the inter--locutory order passed by the Supreme Court on the 19th, in terms, had not bridged the break which had come into existence on the expiry of the time on 18th January, 1976 ;
(2) whether the qualification in the order dated 19th January, 1976 by this Court that it was "subject to all just exceptions" would, as con--tended from the appellants' side, also include and assume nullification of the said order if in the final order on the petition for special leave to appeal, the respondents (petitioners in the leave petition) had lost the case insofar as the merits of the leave petition were concerned ; and
(3) whether in any case, notwithstanding question No. 2 above, the final dismissal of the leave to appeal petition filed the respondents, by this Court, nullified the previous operation and the effect of the inter-logutory order of extension of time passed during the pendency of the petition) on 19th January, 1976.
10. There. Was some argument on the first question as to whether an interim order suspending the operation of pre-emption decree passed by the Supreme Court in its constitutional jurisdiction and under the powers preserved as visualised in the then operative Supreme Court Rules, could have such an effect as to have retrospective operation and to bridge the gap on account of the expiry of the period on 18th January, 1976. The learned counsel for the .Respondents contended that notwithstanding the admitted position that section 148 of the Civil Procedure Code is not ordinarily applicable to extension. Of time in pre-emption matters, the gap was bridged. The learned counsel for the appellants argued that the effect of expiry of the time on 18th of January, 1976 could not be and had not been, condoned by the interlocutory order in fact passed by this Court on 19th January, 1976. This controversy, however, ended and no further arguments in support of the respective contentions were advanced when the learned counsel for the respondents pointed out that 18th of January, which was the last date fixed by the High Court for deposit of the amount, was a public holiday. It is, therefore, not necessary for us to make any further comment in this behalf.
11. The second question noted earlier for determination also does not need any elaborate discussion.
12. It is not denied by the learned counsel for the appellants that one of the well-known meanings of the phrase "Subject to A all just exceptions" is that the order which contains this expression, would be effective unless and until the other party who would be affected by such an order takes exception to it and raises objections which are ultimately upheld to be just and valid. We have earlier in this judgment reproduced the order passed by this Court on 19th of January, 1976. The use of the expression "subject to all just exceptions" in the last but one paragraph of the order was in this very sense. The contention raised by the learned counsel that the order dated 19th January, 1976 was subject to the result of the leave to appeal petition : and because it was dismissed, therefore, the interim order should be deemed and considered to have lost all effectiveness on account o the use of expression "Subject to all just exceptions" does not find any support from the language used in the relevant order. We, therefore, do not find any, force in the argument of the learned counsel in this behalf.
13. The real controversy between the parties is on the third question which relates to the effect of an interlocutory order in a pre-emption matter passed by an appellate Court during the pendency of an application for leave to) appeal. There is no denying the fact that this Court passed the order dated 19th January, 1--76 under jurisdiction which is conferred by the Constitution and the power to be exercised in that behalf is not controlled by any technical limitations of procedural nature ; even if they are made applicable to other appellate Courts to which the procedure prescribed in the Code of Civil Procedure is applicable. Article 187 of the Constitution relied upon from .The respondents, side provides that subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. Order XLIX, rule 6 of the 1956 Supreme Court Rules provided that nothing in those Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the -process of the Court. Article 187 (viz-a-viz the powers of this Court under sub-article (3) of Article 185 which deals with appeals to the Supreme Court . On grant of leave to appeal) was interpreted in a recent full Court judgment in Said Mian and another v. Mian Said Baghdad and another 1980 SCMR 420It was held that this Court has incidental power to pass such interlocutory orders which are in aid of exercise of the jurisdiction conferred on it. It was observed that the Supreme Court stands at the apex of the judicial hierarchy in the country having all the powers of appellate Court and can, therefore, clearly pass all ancillary any incidental orders which are necessary for proper disposal and final adjudication of the cases. Applying this general rule to the facts of this case it would mean clearly that the Supreme Court had the power to grant extension of time for deposit of the amount in a matter which was duly pending before it on the filing of petition for leave to appeal. Once having granted the extension and having led the party to believe that the extension was valid and lawful for the purpose of compliance with the conditions of the decree; ordinarily it would b against all canons of justice if the party taking advantage of the said order is made to lose that advantage retrospectively on ultimate disposal of his petition for leave to appeal. There is no denying the efficacy of the principle in these circumstances that a party would not be allowed to suffer on account of an act of Court. Same would be the result if Order XLV, C. P. C. Was applicable. , The learned counsel for the appellants without seriously contesting the afore-noticed rule, has vehemently contended that in cases of pre-emption, the law would be deemed to have been made an exception to it, in that, that under Order XX, rule 14, C. P. C. The vendee/judgment-debtor gains an extraordinary advantage on the failure of the plaintiff/decree-holder in a pre-- emption suit, to deposit the amount on the date fixed by the Court. The advantage is that on such failure the suit shall be dismissed with costs and as a result a decree by force of statute would come into existence in favour of the vendee defendant, who prior to the said failure would be in the position of a judgment-debtor. The argument further proceeds that the decree so coming into existence in favour of the vendee, cannot be annulled by an interlocutory order. This aspect of the argument, he further stressed, shouldnot be ignored on account of the reason that the Supreme Court has wide powers to pass interlocutory and ancillary orders in this behalf. He made reference to provisions contained in Order XLI, rule 5, to contend that a decree in favour of vendee under Order XX, rule 14 cannot be made in-- effective by or under an interlocutory order. He cited the case of Shah Wall v.
14. Ghulam Din alias Gaman (1) and also some other cases including two cases of the. Supreme Court of India. The learned counsel for the respondents also cited the case of Shah Wali relied upon by the learned counsel for the appellant to contend that apart from the specific effect of an interlocutory order extending time for payment of the pre-emption money, such orders being incidental to the exercise of appellate power, would have to be enforced as any other lawful orders ; the results pointed out by the learned counsel for the appellants, notwithstanding. He in order to show effect of the pronouncement by this Court in the judgment of Shah Wali pointed out that these and related questions came up for interpretation and elaboration in the case of Ha j! Ishtiaq Ahmad and another v. Bakhshava and 7 others (2) and argued that now the matter should be deemed to have been set at rest. In reply, the learned counsel for the appellants while acknowledging the effect of the judgment in the case of Haji Ishtiaq Ahmad, pointed out that the decision of Shah Wall's case was by a larger Bench and that, he submitted with respect, the two learned Judges who decided the case of Haji Ishtlaq Ahmad, should not have gone beyond the scope of the rule laid down in the case of Shah Wall ; which he insisted throughout his arguments, supports his contention.
15. The facts in the case of Shah Wall were that a suit for pre-emption was decreed with a direction to the pre-emptor-decree-holder to deposit the pre--emption money by 21st of March, 1961 "otherwise his decree would be cancelled". The vendee judgment-debtor filed first appeal and a learned District Judge while enhancing the pre-emption money made a fresh direction to the pre- emptor to deposit the amount by 30th March, 1962 "otherwise his suit would be treated as dismissed with costs". The pre-emptor decree holder made the deposit on 18-4-1962. On account of a bona fide mistake, the amount fell short by Rs. 123.75. At the same time, however, he had filed a second appeal in the High Court which was dismissed in limine on 9-10-1962. On 17-10-1962 the pre-emptor sought extension of time to deposit the deficit amount on the ground that the shortfall in the payment was due to a bona fide mistake. The trial Court refused the extension on account of lack of jurisdiction. Against the order of refusal, the pre-emptor filed first (execution) appeal which was allowed and the time for deposit of the deficient amount was extended. A revision filed by the vendee before the High Court was dismissed by the learned Chief Justice of the Lahore High Court on a finding that the first appellate Court had the jurisdiction
(1) PLD 1966 SC 983(2) 1976 SCMR 420 in the first (execution) appeal to extend the time. The vendee then sought leave to appeal from this Court which was granted to examine "whether extension of time could be granted to a successful pre-emptor or appeal against an order of refusal to extend the time for depositing pre- emption money when the original decree was not under appeal". It was held in the majority judgment, amongst others, that time for deposit of pre-emption money cannot be extended by an appellate Court when no appeal is pending against the original decree or when an appeal from such a decree has been disposed of earlier. It was also held that unless in an appeal from the decree itself the time fixed for deposit of the pre-emption money is extended, the successful pre- emptor would disregard the time limit fixed in the decree "at his peril"; because in such a case he might anticipate that the appellate Court would interfere in the course of the appeal, with the decree and might give an extension of time for deposit of the correct amount. But if his anticipation is not realised in this regard and he also failed to deposit the money, within the time fixed by the Court of the first instance, the result must be that his suit would be dismissed, and the same would be the position if the necessary deposit is not made within the extended time fixed by the appellate Court as happened in that case (Shah Walt's case). Two learned Judges however, while agreeing with the conclusion reached in the majority judgment, made certain observations with regard to some aspects of pre--emption decrees. But for purpose of the present . Discussion, it would not be necessary at this stage to refer to them. The learned counsel for the appellant has strenuously relied upon that part of the majority judgment wherein it was observed that if the pre-einptor- decree-holder does not deposit the pre-emption amount within the time fixed by the Court of first instance in the hope that he would get extension from the appellate Court on filing of an appeal, does so at his own peril. The learned counsel implied that this observation could be extended to the present case in that the Supreme Court when extending the time kept the respondent pre- emptor-- decree-holder at his own peril in case leave to appeal was not granted. With respect, this would not flow from the ruling in the case of Shah Wali.
16. No doubt, at page 993 of the report, relied upon by the learned counsel for the appellant, it was observed (in the majority judgment) that in case the anticipation of the pre-emptor when filing an appeal is not realised and in the meantime he had failed to deposit the money within the time fixed by the trial Court, the result must be "that his suit would be dismissed"; and it was further observed that "the same would be the position if the necessary deposit is not made within the extended time fixed by the appellate Court, as happened in the present case (that of Shah Wali)", But this very observa--tion clearly implies that if the deposit is made within the "extended time fixed by the appellate Court" then the position would be different; namely, that the suit would not be dismissed. Nowhere it was held in the case of Shah Wali that the extension of time by the appellate Court visualised in the cited judgment meant only the extension at the time of the decision of the appeal and not during its pendency. There was no such qualification added to the `time fixed by the appellate Court' or `the time extended in appeal'; and thus the ruling clearly visualises an extension of time by the appellate Court both, as an interim measure by an interlocutory order and or at the time of the decision of the appeal. It cannot be deduced from the said decision that in case of dismissal of appeal, extension of time granted by the appellate Court, would be ineffective or inoperative.
17. These conclusions get strengthened by two subsequent decisions of this Court. In Muhammad Shabbir and others v. Bashir Ahmad (1), it was clearly held that the time for payment of pre- emption amount fixed by a trial Court, can be extended by the District Judge as . An appellate Court, through an interim order and dismissal of appeal, will not affect the extension. It is important to note that as in the present case, in the case of Muhammad Shabbir also the appellate Court while dismissing the appeal, had not granted any fresh time for deposit. The learned counsel in order to distinguish this decision, pointed out that the appeal in that case to the District Court, was as of right and thus the proceedings were in continuation of the suit and so was observed in the judgment of this Court. This was not the only basis of the decision in Muhammad Shabbir's case.
18. After noticing that the appeal before the District Judge was as of right, and that the learned Judge was fully competent, under section 151 of the Code of Civil Procedure, to pass the interim order, a very important observation was made : that the refusal to exercise the power to pass an interim order would not only have been improper but would have hod the effect of making the appeal itself infructuous and depriving the respondent of a statutory right of appeal. There is no denying the fact that the proceedings before the Supreme Court, in the present case, were in pursuance of the constitutional right of a party under Article 185 (3) of the Constitution to present a petition for leave to appeal. This right, if aforequoted observation is kept in view, would become illusory, if the power of the Supreme Court, to pass an interim order, is rendered practically ineffective in case ultimately the petition for leave to appeal is dismissed. It is a different matter if the Court on due exercise of this power, in circumstances of a case, refuses to make an interim order in favour of the pre- emptor, but this is not the position here. The Supreme Court had passed an interim order extending the time for deposit of the pre-emption money on an application made by the respondent in a petition for leave to appeal which was duly entertained.
19. The reasoning in the foregoing paragraph gets sufficient support from another judgment of this Court in Haji Ishtiaq Ahmad and 2 others v. Bakhshava and 7 others. No doubt, it was a decision by two learned Judges of this Court but while rendering the same, reliance was placed on the authority in the case of Shah Wali, itself. Therefore, the learned counsel for the appellant is not right in suggesting that the two learned Judges held contrary to what had been ruled in the case of Shah Wall. At page 423 of the report, after discussing the effect of the judgment, in the case of Shah Wall and Ansari Bros. (2), it was held that the concession that can be allowed to a pre- emptor who had failed to makes the deposit within the time fixed in the decree granted to him by the trial Court or the appellate Court and "in whose case no sufficient extension of time is granted by the higher Court acting in first appeal, second appeal or revision as the case may be, is that he must make the deposit within a reasonable time from the decision ofthe last Court " The distinction, sought to be canvassed by the learned counsel for the appellant, between an appeal by right and an appeal through special leave to appeal in cases like the present one, is not real. When the question is of the effect or otherwise the efficacy of an interim order, the question loses significance whether it is by first, second appellate Court or the revisional Court. They were treated to be in the same category regarding the extension of time. This interpretation of the rule in Shah Walls case besides being salutary, directly flows from it. No justification has been made for us to vary the same. It will not be out of place to mention here that the rule laid down, in the case of Shah Wali came up for interpretation
(1) 1974 SCMR 24(2) PLD 1971 SC 700 in yet another case Ha/1 Nawab Khan v. Fazalur Rahman and another 1976 SCMR 502wherein an attempt was made to get the entire question re-opened. A learned counsel contended that ,"this decision needs consideration". The learned Judges, while deciding this case, noted that "they were unable to agree with him for this is a well-considered judgment by a Full Court, and has been subsequently re-armed in several cases".
20. Apart from the afore-discussed aspects, one fallacy in the argument of the learned counsel for the appellant remains obvious. He was unable to suggest any satisfactory remedy/solution in a case where on a petition for leave to appeal filed by a vendee judgment-debtor, the Supreme Court suspends the decree and the plaintiff decree-holder thus fails to deposit the amount within the time fixed by the High Court ; but ultimately leave to appeal petition filed by (vendee judgment- debtor), is dismissed on a date beyond the fixed period. If the entire controversy is to be decided on the proposition canvassed by the learned counsel with regard to the effectiveness of the interim orders, depending upon the acceptance or otherwise of the leave to appeal petition, then the pre- emptor would not be able to satisfy the decree and such a result would undoubtedly be without his fault.
21. Another issue raised by the learned counsel for the appellant was that as a result of the failure of a plaintiff to deposit the amount within the fixed period, a decree coming into existence by statutory force in favour of the vendee (who earlier was the judgment-debtor), cannot betaken away by an interim order. The learned counsel, with respect, ignored the peculiar nature of the so-called success/decree which, the vendee judgment-debtor gains by the, default of the plaintiff pre- empor. It is not on the basis of a decision on merits in favour of the vendee but is on account of peculiar procedural aspects of the lis in a pre-emption case. As observed in the case of Shah Wali, a decree passed in favour of the successful pre-emptor, is of a "composite and contingent character" It the pre-emptor satisfies the condition imposed by the Court on him with regard to the deposit of the pre-emption money within a specified period, the decree for possession would become operative in his favour. If on the other hand, he commits a default in that respect, the decree dismissing the suit becomes effective. The con--tingent character of the decree, is essentially on account of the reason that the Court fixes a certain date/period regarding deposit of pre-emption money. This contingency obviously arises on account of an order of the Court. It will not be possible to accept an argument that the position would not be again reversed when an appellate Court passes an order, which is within its jurisdiction and power, to extend the time. The composite nature of the decree, another significant aspect in addition to its being contingent, also has to be kept in view. Although the decree holder is the pre-emptor plaintiff, yet an important initial step for its execution is to be taken by him that he (the decree-holder) is to satisfy the decree by making payment by a certain date fixed by the Court--whether it is by appellate or trial Court, and, is by way of an interim measure or final disposal, in this context, would not make any difference.
22. In the light of the foregoing discussion keeping in view the legal position on the question relating to the effectiveness of the interlocutory order passed by this Court on 19th January 1976, this appeal fails and the same is dismissed. There shall be no order as to costs.