' The petitioner challenges the order dated 4th November, 1982 passed by the executing Court rejecting its objection and ordering execution of the decree passed in favour of the respondent.
' Briefly, the facts of the case are that the petitioner agreed to sell to respondent a plot, F-1, New Muslim Town Extension Scheme, Lahore, measuring 14 Kanals 3 Marlas 38 sq. Ft., at the rate of Rs, 50,000 per Kanal. The respondent advanced a sum of Rs, 1,76,980 on 11th November, 1976. The formal agreement was executed on 6th April, 1977 and registered on 12th April, 1977. The petitioner delivered possession of the plot to the respondent on 19th April, 1977. The second instalment of Rs, 1,76,980 was paid on 29th April, 1978. The respondent submitted a plan of construction for the sanction of the petitioner but it was rejected as being in violation of the terms. Subsequently, the lease was also cancelled on 31st December, 1978 for nonpayment of the balance of Rs, 3,85,818.
3. The respondent challenged the cancellation of the plot by way of a civil suit on 17th November, 1980. It prayed that the petitioner may be directed to specifically perform the contract. The suit was decreed on 23rd September, 1981, subject to condition that respondent deposits the balance of Rs, 3,85,818, in the funds of the petitioner, uptil 7th October, 1981. It was further stated that in case of default the suit shall stand dismissed with costs. The respondent did pay the balance amount but not in the funds of the petitioner, as directed by the Court.
4, On 6th October, 1981 the respondent made an application before the Court for permission to deposit the amount. The case made out by the respondent was that it offered to pay the amount in the funds of the petitioner but some officer (not named) refused to furnish it with the challan. The Court passed the following order {{URDU TEXT}}
5. Admittedly, noZ notice of the application or order was given to the petitioner. On 5th July, 1982 the respondent started proceedings for execution of the decree. A notice of it, under 0. XXXI, rule 32, C. P. C. Was sent to the petitioner. In its reply, it stated that as the amount had not been deposited and, in any case, the condition set by the Court under decree, not fulfilled, the suit of the respondent stood already dismissed. The executing Court beard the parties, considered their pleas but vide its order dated 4th November, 1982 rejected the contention of the petitioner and ordered execution. The petitioner has filed the present revision petition challenging the said order.
6. 6 It is contended by the learned counsel that as the Court had passed a specific order directing that the decrial amount be deposited in the funds of the petitioner before 7th October, 1981 the suit of the respondent stood dismissed, as the said condition had not been fulfilled. It is admitted by the learned counsel for the respondent that the amount in question had not been deposited in the funds of the petitioner. The challan shows that it was deposited in the State Bank of Pakistan as 'revenue deposit' under the order dated 6th October, 1981 referred to in para. 4 above. However, in columns 1 and 2 of the challah it is stated 'Own Homes Service Ltd., Lahore, in favour of L. D: A.' It is also admitted that the Lahore Development Authority has no account or dealings with the State Bank of Pakistan.
7. The admitted facts as given above show that the short question arising for determination is whether a deposit of the amount, as above, would satisfy in law, the order of the Court and if not what is its effect, particularly, keeping in view the position, that no notice had ever been issued to the petitioner ? The petitioner further states that in view of the default of the!Respondent, too .Deposit the decrial amount, in its funds, it rightly presumed that the suit of the respondent had been dismissed and, therefore, it entered into a further agreement with somebody else and delivered possession of the disputed plot to him.
8. Both the learned counsel relied, in support of their respective pleas, on the provisions of Order XXI, rule 1, C. P. C., which reads as under :- AI) All moneys payable under a decree shall be paid as follows, namely-
(a) into the Court whose duty it is to execute the decree ; or
(b) out of Court to the decree-holder through a bank by postal money order or evidenced by writing signed by the decree-holder or his authorized agent ; or
(c) otherwise as the Court which made the decree directs. (2) Where any payment is made under clause (a) of sub rule (1), notice of such payment shall be given to the decree-holder."
9. The learned counsel for the petitioner also sought strength from the case of Firm Amolak Ram Dwarka Das v. Firm Roda Mal Ramsaran Das (1) to argue that when a specific direction is made by the Court about payment, the clauses (a) and (b) of Order XXI, rule 1, C. P. C. Are not attracted and a violation of the order would mean dismissal of the suit; This Court, in the above case, observed that : .
"The decree, as I have already stated was in the ordinary form of a money decree and did not purport to make a special direction in regard to the mode of payment. It is well-established that in the absence of a special direction, the judgment-debtor is entitled to choose between (a) and (b), viae Sankaran Unni v. Raman AIR 1925 Mad. 743 and Dhanusingh v. Kesho Prasad AIR 1923 Nag.
246."
' A similar view was taken in Rangpur Raiyat Bank Ltd. v. Hesabuddin (2), and Khan Muhammad v.
Ahmad (3). There is thus an obvious non-compliance of the decree.
10. The learned counsel also referred to the order of the executing Court rejecting V:e petitioner's objection. It is stated that originally the Court allowed the deposit of the amount in question at the risk of the {{FOOT NOTE}}
(1) AIR 1935 Lah. 369 (2) AIR 1923 Cal. 111
(3) (1923) 73 1 C 891 {{FOOT NOTE}} ' respondent. Subsequently, the Court neither considered -the effect of the deposit nor did it see the import of Order. XXI, rule 1(c) for it had no jurisdiction to condone the default, if the one had been made thereunder. Reliance was placed on Shah Wali v. Ghulam Din (1) to argue that the trial Court becomes functus officio after passing the decree and so it cannot take any further step, in the case, like extending the time or accepting a mode of payment, other than the one specifically given before. Section 148, C. P. C., the Court observed, does not apply where the period is fixed by a decree in a suit, unless the decree is in the nature of a preliminary decree where the Court still retains seisin over the action.
11. The principle upon which it has been so held, is that since a decree normally puts an end to a suit the power of the Court to pass any other order with respect to that particular suit, thereafter, also comes to an end and the Court becomes functus officio with regard thereto. The real test for it, laid down by the learned Judges, is to see whether the decree has been made in such terms, as to indicate that the Court has finally, disposed of all matters, so that it is to operate automatically or whether the Court has still retained some control over the litigation. Similar view was taken by this Court in Labh Singh v. Ganpat (2), while relying on a Full Bench case of the High Court of Allahabad 1 L. R 1935 All.
582. Looked at from the above point, the decree laying down that the payment shall be made in the funds of the petitioner was final and the Court could not change the mode even if it had so wanted, which certainly it did not. The Court rather accepted the payment at the risk of the respondent.
12. Even recently, this Court in Khan Shah Muhammad Khan v. Allah Diwaya (3) opined that it is no doubt true that after the trial Court has passed a decree, it cannot, by modifying that decree, extend the period of deposit, under section 148, C. P. C. It is thus obvious that if the terms of the decree are not complied with and the pre-emption money is not deposited in time, the decree becomes incapable of execution and the decree-holder cannot obtain possession of the property in dispute.
13. The learned counsel for the respondent cited Mahomed Rahimtullah Haji Joosab v. Email Allarakhia (4) in his support. The decree obtained against the appellant in that case expressed "The plaintiffs will have six months within which to pay their share, i,e, 1016th of the Rs, 1,250 and the Rs, 1,200 with added interest as directed in the lower Court's judgment.
' If within six months the plaintiffs pay the sums due from them they are to recover possession of the land in suit. But if within that time the plaintiffs do not pay the sums due from them the the suit to stand dismissed with costs."
' Their Lordships opined that while the condition would have been satisfied by a payment to the appellant in person, which he accepted, it was equally satisfied by a payment into Court, and that the litter was, in the circumstances, the appropriate mode of satisfying the condition. It is, however, to be noted that that decree was covered by clauses (a) and (b) of Order XXI, rule 1, C. P. C. And not its clause (c). This judgment, therefore, is of no help to the respondent. {{FOOT NOTE}}
(1) PLD 1966 SC 983 (2) AIR 1923 Lab. 162
(3) PLD 1961 Lah. 743 (4) AIR 1924 P C 133 {{FOOT NOTE}}
14. The judgment in Lakshmi Narayan Ganesh Das v. Ghasiram D.I. Chand (1), was also cited in support, In that case, Ramaraya Shanbogue v. Venkataramanayya (2), was dissented from, mainly on the ground that as in an intervening decision, the Privy Council, in the case of Mahomed Rahimtulla, referred to in para. 13 above, had equated payment into Court with that made to the defendant, the 42 Mad. 576 was not to be followed. However, the Privy Council case did not deal with clause (c) and so it will not govern that situation.
15. Later, the Madras High Court, in South Indian Railway Co. v. M. C. Mayilvahanan (3) also clarified the above Privy Council judgment, to say that they did not think that their Lordships were laying down any general principle to be applied to all kinds of deposits in all kinds of circumstances, and that ruling, they thought, cannot be utilized as authority overruling 42 Mad, 576. The learned Judges of the Madras High Court, therefore, considered themselves bound to follow 42 Mad.
576.
16. The learned counsel then relied on Firm Amolak Ram Dwarka Das's case, referred tc in para. 9 above. The plea raised was that a decree, in a suit for specific performance is always in the nature of a preliminary decree and so the Court retains the power to extend the time. The learned Judges in the above case had referred to observations in Sorneshwar Dayal v. Widow of Lamar; Shah (4), that it is no doubt true that in this country, usually, when Courts pass a decree for specific performance, they fix a time, during which the plaintiff is enjoined to pay consideration and thereby get a proper sale in respect of a property. It was, however, made clear that this is more for purposes of convenience, rather than in compliance with any provision of law. The Court went on to say that the decree, which is made in a suit for specific performance, is not a final decree of the character that completely debars the Court from extending the period fixed by it, for the decree, in such a suit, partakes of the nature of a contract and unless it is rescinded or performed, it subsists and therefore, the right of the Court, to make the extension of time for payment, also subsists.
These observations, however, have no application to the case in hand, as the trial Court firstly, was acting as an executing Court and secondly, it neither extended the time nor did it change the mode of payment. On the other hand, it specifically remarked, in its order dated 6th October, 1981, that the respondent was making the payment at his own risk. Further, the mode of payment was final, in the light of the law laid down, in the Supreme Court case of Shah Wali referred to in para. 10 above.
17. It is to be seen that the order of the trial Court was quite clear in its import. It expressly required of the respondent to deposit the amount in the 'funds of the L. D. A.' The respondent was also conscious of that condition as it did narrate in its application dated 6th October, 1981, that some officer (not named) of the petitioner had refused to supply the challan. The executing Court instead of issuing a notice to the petitioner or subsequently asking the respondent to lead evidence on the point allowed the deposit, at its own risk. The respondent did not object to that and 'deposited the amount in the State Bank of Pakistan. Even thereafter, it did not notify the respondent that it had deposited the amount in the State Bank of Pakistan. The respondent, therefore, shall have to normally rely on the legal effect of its act. {{FOOT NOTE}}
(1) A 1 R 1939 Nag. 191 (2) 42 Mad. 576
(3) AIR 1943 Mad. 334 (4) AIR 1948 All. 488 {{FOOT NOTE}}
18. In Alleppey Ananthanaryanapuram Thuravoor Thirumala Devaswom v. Ponnu Ninar Filial Kannu Pala' (0, the Court observed that under the decree the liability is that of the judgment-debtor and hence it is for him to get relief against such liability. He can expect the decree-holder, to give credit to the amounts deposited by him in Court, only by giving notice of such deposits, to the decree- holder and cannot expect the Court, on its own initiative, to give such notice, even though he is entitled to seek the aid of the Court, for the service of such notice at his instance. The Court further observed that "There is no reason why the decree-holder should suffer for the failure to give notice under sub-rule (21 of rule 1 of Order XXI, C. P. C. The judgment-debtor, defaulting to give such notice, cannot claim any benefit, at the expenses of the decree-holder, by saying that it was the duty of the Court, to call upon him, to give notice of such deposit, to the decree-holder." It went on to say that the legel as also the equitable construction to be put upon sub-rule (2) of rule 1 of Order XXi is that, it is the duty of the judgment-debtor, making any deposit in Court, to give notice of the same to the decree-holder, through Court or otherwise, so that the latter may become obliged to give credit for such payment." A similar view was taken in Rangpur Raiyat Bank's case, already referred to in para. 9 above.
19. It was held in Baliram v. Ghasiram (2), that the defendant was, really speaking, himself at fault for not giving a proper written notice to the plaintiff of the fact of his having made the deposit. The Court, therefore, refused to put premium on his default by charging the plaintiff with neglect, in the performance of his part of the contract, within 15 days of the date, of his knowledge of the deposit.
It further remarked that really speaking, plaintiff was not bound to take notice of the deposit made at any time prior to 10th May, 1921, in any case, and that he was under no obligation to do anything, until he was served with notice, in the regular way, because from the receipt of the notice, he was to have 15 clear days for execution of the sale-deed and for delivery of possession. Similar view was taken in South Indian Railway's case. Thus it seems to be an established view that a notice of the deposit is a must, if the judgment-debtor wants to take benefit of the same. The only special feature, of the case in hand, is the allegation that an officer of the petitioner, made it impossible for the respondent, to deposit the amount in question, in the petitioner's fund.
20. It may further be observed that the impugned order cannot be maintained, in view of the amended rule 2(3) of Order XXI. It was introduced vide section 2 and Schedule of the Law Reforms Ordinance, 1972, and reads as under :- "2(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognised by the Court executing the decree."
' The above amendment may be read in the light of the amended clause (b) of Order XXI, rule 1, C.
P. C. Originally the clause was 'out of Court to the decree-holder' and later by the Law Reforms Ordinance, 1972, the following words were added to it. "Through a bank or by postal money-order or evidenced by writing signed by the decree-holder or his authorised agent."
21. The original rule 2(3) placed a bar upon the executing Court and prevented it from recognising any payment or adjustment which has not been certified or recorded as certified, as required by the rule, as held in {{FOOT NOTE}}
(1) AIR 1957 Tray.-Co 241 (2) AIR 1925 Nag. 52 {{FOOT NOTE}} ' Raja Shri Prakash Singh v. Allahabad Bank (1) and Mulchand v. Champa (2). This sub-rule thus defined the scope of clause (b) of Order XXI, rule 1. So the amendments, made under the Law Reforms Ordinance, make the legislative intention very clear as, it wants the parties to act strictly in accordance with the contents of rule 1, in order to get recognised a payment, thereunder. In this view of the matter the respondent may succeed only if he was prevented by the petitioner or any of its competent officers from depositing the decretal amount, within the time provided by the decree.. On no other ground, however, the Court below could have allowed or recognised the payment.
22. The learned counsel then argued that it was the duty of the Court to have inquired into the contents of its application and the respondent should not suffer now for the act of the Court. He also relied on section 151, C. P. C. As stated above, the respondent did deposit the amount at its own risk. It did neither ask for an inquiry nor did it issue any notice to the petitioner, after payment. The learned counsel cited Mardan Shah v. Sattara (3), where the Court accepted the view, taken on various occasions before, that section 151 does not confer any powers but only indicates that there is a power to make such orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is also settled law that there is no room for the application of the inherent power where E there is an express provision negating the claim of the petitioner. Since noon express provision governs the situation, as it arises in this case, and as the relief asked for by the petitioner, in its application dated 6th October, 1981 should have been granted to it if the petitioner had, in fact, refused to permit the respondent to deposit the decretal amount, in its account, the benefit of the provisions of section 151, C. P. C. Could be made available to the respondent, in the interest of justice, despite its failure to give notice of payment. This is particularly so because the payment had been made within the time provided in the decree. Thus a relief, only to that extent, can be allowed by this Court in this jurisdiction, just to see that justice is not denied to the respondent, if its plea, for the deposit of amount in the Court, was correct.
23. The upshot of the whole discussion is that the revision petition of the petitioner is allowed and the impugned order of the executing Court is set aside. The case is, however, remanded, in the interest of justice, to the executing Court, to allow the respondent to prove that it was prevented by an officer of the petitioner, from depositing the amount and if it was really necessary to get a challan from the petitioner, for depositing an amount in its funds. The petitioner shall also be given the opportunity to rebut. In case finding is in favors of the respondent, the decree shall be executed in accordance with law. If, on the other hand, it is found that there was no obstacle placed by the petitioner, or its said officer, in the way of th respondent, to deposit the decrial amount in the funds of the petitioner, the suit of the respondent shall be treated as dismissed with costs and the amours of the respondent shall be refunded to him. The parties shall bear their own costs of this petition.
' The parties are also directed to appear before the executing Court on 30th April, 1983, and that Court shall decide the matter within a month, thereafter.
Revision . {{FOOT NOTE}}
(1) A 1 R 1929 P C 19 (2) A 1 R 1925 Lah. 566
(3) PLD 1956 Lab. 87 {{FOOT NOTE}}