' Briefly the facts giving rise to the present revision are that the petitioner filed a suit for possession by way of exercise of right of preemption in which an ex parte decree was passed in her favour on 7th October, 1974. According to the terms of the decree the petitioner was required to deposit a sum of Rs, 7,885 by 19th November, 1974. Before this date a sum of Rs, 7,860 was deposited by the petitioner which was less by Rs, 25 out of the total pre-emption amount. On 25th November, 1974 execution application was made for procurement of warrants of attachment and Rs, 27 as costs.
On 31st December, 1974 the respondent made an application for the dismissal of the execution application on account of short deposit of money as the decree under these circumstances had become in executable and the suit dismissed for non-compliance of the terms of the decree. On 6th January, 1975 the petitioner made an application for the amendment of the execution application praying that the petitioner had deducted the costs amounting to Rs, 25 and accordingly the execution application be treated for the recovery of Rs, 2 only as costs. The learned Civil Judge, Lodhran vide his order dated 9th March, 1978 dismissed the application filed by the respondent for the dismissal of the execution application.
' In paragraph 6 of the order it was specifically pointed out that on the warrant of attachment the bailiff had given a detailed report about the recovery of Rs, 27 and the refusal of the petitioner to receive the sum on the ground that she had already received Rs, 25 out of the costs awarded to her which she was legally entitled to recover the same from the amount to be deposited in pursuance to the decree. It was also taken into consideration that the respondent had filed an appeal against the ex parte decree and prayed for temporary injunction to stop the execution proceedings and temporary injunction was granted in his favour on 2nd November, 1974 i.e, 23 days earlier than the filing of the execution petition. The learned Executing Court was therefore, satisfied that the question of payment of Rs, 27 to the bailiff by the respondent as the costs did not arise and that it was a created affair. It had also been noted that on the warrant of attachment the petitioner had refused to receive the amount of Rs,
27. The point that as to why the whole amount of costs of Rs, 27/- was not deducted was not found to be in any way advancing the case of the respondent. The respondent filed an appeal which was accepted by the learned Additional District Judge, Multan vide his order dated 16th July, 1979. The learned Additional District Judge rejected the plea of the petitioner and the adjustment of the costs on the ground that the petitioner had prayed for its recovery in the execution petition, and therefore, the question of its adjustment against the price does not arise. The conclusion arrived at by the learned Addional District Judge in the entire circumstances of the case was that on 26th November, 1974 the petitioner had not adjusted the amount of costs towards the pre-emption money. This judgment of the learned Additional District Judge has been challenged in the present revision.
2. The learned counsel for the petitioner has submitted that the petitioner was justified to deduct the costs from the amount payable as price and having done so merely because the prayer had been made for the recovery of costs of Rs, 27 which was never received by the petitioner A it could not be said that the terms of decree had not been complied with. The learned counsel for the petitioner has relied on a case Kapuria Mal and another v. Wali Muhammad and others (1) In this case it was observed that the plaintiffs who are given a decree for pre-emption on payment of a certain sum and they are also allowed costs, they are admittedly entitled to deduct the amount of costs from the sum to be deposited in the Court. The deposit of a sum by the plaintiffs sufficient to cover the decree after deducting the costs which they are entitled to deduct would be sufficient compliance with the decree. It was further held that it was immaterial what the plaintiffs intended to do, and the only real test was whether they have sufficiently complied with the decree. Reliance in this case has been made on an earlier decision reported as Bechi Singh v. Shami Nath (2).
3. The learned counsel for the respondent, on the other hand, has relied on Shah Wali v. Ghulam Din
(3) In this case there was an amount of
(1) AIR 1922 Lah. 142 (2) 10 I C 454
(3) PLD 1966 SC 983 ' Rs, 123.75 deposited less than the amount mentioned in the decree. In this case a suit for pre- emption has been filed which was decree and the plaintiff was directed to deposit pre-emption money by 21st March, 1961 otherwise his decree was to be cancelled. On appeal the amount of the pre-emption money was enhanced and directed the pre-emptor to deposit the enhanced pre- emption amount by 30th June, 1972 and ordered that otherwise his suit will be treated dismissed with costs. The pre-emptor on 18th April, 1972 deposited the pre-emption amount which by a bona fide mistake fell short of Rs, 123.75. The question that was considered by their Lordships of the Supreme Court was whether the extension of time could be granted to a successful pre-emptor on appeal against an order of refusal to extend the time for depositing the pre-emption amount when the original decree was not under appeal. It was held that the time could not be extended. As already indicated above this was not a case of extension of time but right of the adjustment of the costs. The learned counsel has also relied on Abdul Waheed v. Ibrahim (1) which is also not applicable to the facts of the present case.
4. To my mind the Executing Court had rightly applied its mind to the facts of the case. The petitioner whether intended or not had deposited the amount which satisfied the decree. If the deduction was less by rupees two out of the costs of Rs, 27 the respondent could not make any ground. As regard's praying for costs in the execution petition it may be by inadvertence for which she made an application for amendment. It is clear from the bailiff's report that the sum of Rs 27 said to have been offered by the bailiff as costs was never received by her. It is also evident that the execution petition had been filed 23 days after the grant of the stay by the appellate Court. The respondent had clearly created a circumstance for the tendering of amount in spite of the stay of the execution proceedings. All these aspects have not been taken into consideration by the learned Additional District Judge and this was definitely not a case of short deposit of money or condonation of delay.
5. In view of the above discussion this revision is accepted and the order of the learned Additional District Judge dated 16th July, 1979 is set aside and that of the Civil Judge, 1st Class, Lodhran, dated 9th March, 1978 is restored. In the circumstances of the case there will be no order as to costs.
(1) PLD 1966 B J 8