' RAJA MUHAMMAD KHURSHID KHAN, C. J.-In a pre-emption suit by Mst. Hanifa Begum, appellant herein, in recognition of her prior right of purchase, a pre-emptive decree was recorded in her favour by the civil Court of original jurisdiction Authmuqam (Muzaffarabad) on 30-3-1972. The decree was to operate on payment of Rs. 1,700 (the sale consideration) and the cost of sale-deed before 5-5-1972. Default in making the, payment, it was stipulated, would entail dismissal of the suit.
2. This judgment of the Sub-Judge was assailed by Wali Shaikh, the father of Hassan Shaikh and two other respondents, by way of an appeal before the District Judge, Muzaffarabad. The learned District Judge dismissed the appeal on 16-10-1972.
3. The finding of the learned District Judge was sought to be impugned before the High Court in second appeal, The High Court while accepting the appeal modified the finding to the extent that an amount of Rs. 400 in addition to the amount allowed by the lower Courts would also go to the vendee. This amount was to be paid by the decree-holder on or before 13-11-1973. It may be Mated here that M.o. Hanifa Begum, appellant (decree-holder) deposited Rs. 1,700 (the sale consideration) and Rs. 400 (improvement cost) but failed to deposit the expense of the sale-deed within the allowed period.
4. On 28-10-1978, Mst. Hanifa Begum moved the Court for the execution of the decree. The execution was resisted by the respondents on the ground that for the failure of the decree-holder to fulfil the conditions of the decree, the decree has become inexecutable. The objection was not accepted by the Executing Court.
5. On first appeal moved by the respondents before the District Judge this objection was reiterated.
However, during the pendency of the appeal thereat, Mst. Hanifa Begum submitted an application for codonation of the delay and allowing her further time to deposit the cost of sale-deed. The application was allowed and Hanifa Begum (pre-emptor) was asked to deposit Rs. 138, the cost of sale-deed, within a period of 15 days from the date of the order which was made on 21-5-1979.
6. The respondent-vendee went up in appeal before the High Court to assail the said judgment of the District Judge. A learned Single Judge in the High Court felt persuaded to discharge the order passed by the learned District Judge vide judgment dated 22.9-1979, inter alia, on the ground that the District Judge had no control over the matter and therefore he was incompetent to extend the time. Hence this appeal by leave to challenge the said judgment of the High Court.
7. Kb. Muhammad Saeed, the learned counsel for the appellant, argued that the learned Judge in the High Court fell in error to hold that the District Judge had no control over the matter. The fact of the matter is that the District Judge, when dealing with the fruit of the decree, had control over the suit and could record any order touching the issue in the suit ; and (i)that in the circumstances of the case the District Judge even otherwise was competent to invoke the inherent powers to extend the time for deposit of the cost of the sale-deed. In his view it was the duty of the Court or its staff to be exact about the amount of the sale-deed which was to be deposited alongwith the sale-consideration. Failure of the Court or its staff to do so, he submitted, was the cause of bona fide error on the part of the appellant. This factum, he contended, justifiably attracts the inherent powers of the Court to extend the time and excuse the lapse.
8. As against this Mr. T. H. Tariq, Advocate, appearing on behalf of the respondents maintained that the provisions of the pre-emption law, which create checks on, the freedom of sales etc. Have always been strictly construed and the parties are expected to be vigilant to ensure strict compliance of the requirements under this law. Any lapse on the part of a party has always been taken serious note of and no exceptions have ever been taken to such lapse unless of course circumstances of extraordinary character warranting indulgence\ for extension of time are not brought on record. No such circumstances are available in this case.
9. How a decree is to be drawn up in a pre-emption suit? The form of decree to be drawn up in pre- emption suits is laid down in rule 14 of Order XX of the first Schedule to the Code of Civil Procedure.
Sub-rule (1) of this rule is relevant and is reproduced below :- "(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall-
(a) specify a day on or before which the purchase-money shall be so paid, and
(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clauses (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(Underlining is ours)
10. It would appear that sub-rule (1) clause (b) is mandatory in nature and stipulates dismissal of the suit with costs if a decree-holder, in a preemption suit, fails to make payment of the purchase- money and the cost within the time allowed.
11. In the instant case the first round of the litigation, spreading over a period of more than nine years, had come to an end when finally the finding in favour of the appellant was recorded by the High Court on 13-10-1973. Thereafter in second round it was only during the execution proceedings that the validity of the decree was challenged on the ground that the appellant had failed to comply with the mandatory provisions of Order XX, rule 14, Code of. Civil Procedure, in making payment of the costs of the sale-deed.
12. Let controversial point now is determined. Firstly, it is to be seen as to whether the learned District Judge, when seized of the matter relating to the refusal of the execution of the decree, had control over the suit as contended by Kh. Muhammad Saeed, Advocate.
13. Section 148 of the Code of Civil Procedure, which deals with the enlargement of time, reads :- "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
This section, it would appear, gives power to the Courts to extend the time previously fixed or granted for the doing of any act prescribed or allowed by the Code of Civil Procedure. They can do so even after the period originally fixed has expired. But this section; it is now well-settled, does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of preliminary decree and the Court still retain seisin over the action. 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. Exception made in the case of preliminary decree is also on the same basis that in the case of such a decree the Court does not become "functus officio" but still retains control over the action and, therefore, has full power to make necessary orders thereunder including an order for the extension of time.
[Here italics]
14. The distinction referred to above is not without importance, for even orders contained in decrees which are not strictly speaking preliminary decrees may not always be such as are intended to operate automatically without any further intervention by the Court. The real rest, in or view, whether the decree has been made in such terms as to indicate that the Court had finally disposed of all matters so that it is to operate automatically o the Courts still retain some control over the litigation. Examination, therefore, shall have to be made of the precise terms used in the decree.
15. With the state of law discussed above, let us examine the issue in the present case. The decree of the trial Court used the words that 'in the event of default the suit will be treated as dismissed'.
These words are of automatic operation for they contemplate no further order by the Court. The words used are the words of finality and are to take effect automatically. There appears to be no case in which it has been held that the time of deposit of pre-emption money can be extended by a Court which has no control on the cause and no appeal is pending against the original decree or an appeal from such a decree has been disposed of earlier. It is also now well-settled that when a final appeal is dropped the time for payment must be regulated by the original decree and the operation of decree, passed by the Court of first instance, is not suspended automatically on the mere filing of an appeal therefrom.
16. Our conclusion, therefore, is that a decree passed in a successful pre-emption suit is of composite and contingent character. If the pre-emptor satisfies the condition imposed on him with regard to the deposit of the preemption money the decree becomes operative in his favour, but if he commits a default in that respect the decree becomes ineffective. In `Ghulam Muhammad and another v. Irshad Ahmad and another dealing with the point it has been observed :- "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'. If the preemptor 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 contingent 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 an1 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."
17. It is thus clear that the matter is now finally clinched that a Court, which has no control over the suit, is not competent to extend the time for deposit of the decrial amount in a pre-emption suit.
18. In the case before us there is no manner of doubt that the learned District Judge had no control over the matter and naturally he was incompetent to extend the time. A feeble suggestion, however, was made by Kh. Muhammad Saeed, Advocate, that the question of extension of time for payment into the Court of pre-emption money may be said to be covered by section 47 of the Code of Civil Procedure and the executing Courts, therefore, are always competent to extend the time. The argument, to us, is without substance. The executing Court cannot, as a rule, go beyond the decree save perhaps in circumstances of an exceptional character.
19. The relevant law, relating to execution of decree and scope of jurisdiction and powers of executing Courts, is contained in sections 36 to 47 and under Order XXI of the Code of Civil Procedure. In section 47 it is provided that all questions arising between the parties to the suit in which decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The provision was incorporated by the Legislature with the object to provide relief to the parties expeditiously. It is well-settled that executing Court is vested with the power to. Execute -a decree in the light of its terms. It cannot travel beyond the limits of decree. At least any question likely to frustrate the decree itself cannot be looked into by executing Court unless, of course, the decree is a nullity._ Again, it may be stated here that a decree is deemed as null and void when -it is passed by the Court having no jurisdiction or it is a decree against a dead person. In brief the jurisdictional domain of executing Court spreads over the terms of the decree and the Court, in no circumstances, can transgress the limits of the decree. Reference may be made to The Bank of Bihar Ltd. v., Sarangdhar Singh and another , Topanmal Chhotamal v. Messrs Kundomal Gangaram and others , Hari Lal Patni v. Sri Kali Nath , Messrs Haji Ahrned & Co. v. Muhammad Siddique and others and Yousaf Aziz v. Mst. Aqeela Begum and 3 others .
In the first case it was held that execution Court cannot go behind the decree and question its correctness. In the second case it has been found that executing Court cannot travel beyond the decree and give relief to plaintiff, which was expressly denied to him in the suit. A Court executing a decree must take the decree as it stands and the decree is binding and conclusive between the parties to the suit. In the third case it has been observed that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking inherent jurisdiction in the sense that it could not have season of the case because the subject-matter was wholly foreign to its jurisdiction or that the-defendant was dead at the time the suit had been instituted or decree passed or some such other grounds which could have the effect of rendering the Court entirely lacking the jurisdiction in respect of the subject-matter of the suit or over the parties to. It. In the fourth case the law was enunciated to the effect that only ground which has been recognised by Courts and which can be urged in execution proceedings as regards the validity of the decree is that the Court which passed the decree had no jurisdiction to do so. Such absence of jurisdiction must be inherent. Except in such cases the execution Court has2 3 4 5 6 no jurisdiction to go behind the decree. It has no power to entertain an objection as to the validity of the decree upon the ground that it was obtained ' by fraud. In that case an objection was raised in the executing Court that award of the Arbitrator was made without jurisdiction. The executing Court disallowed the objection on which leave was sought in the Supreme Court. The learned Judge refused to grant leave holding thereby that an executing Court cannot go behind an award and determine its validity or invalidity and the Court is required only to execute the award as it is. In the fifth case it was held that award of the Arbitrator when made rule of the Court becomes a decree ; and nullity of award cannot be pleaded as ground of attack against the decree.
20. It may be stated here that in Khan Muhammad v. Ahmad and others too it has been observed :- "As pointed. Out in Kanhaya Lal v. Muhammad Shafi Khan (1913) 3 P. W. R. 1913 it is the duty of the decree-holder in a pre-emption suit to take all precautions and make sure that the decree passed in his favour is strictly complied with. As pointed out by the District Judge, the decree is perfectly clear and I am unable to see that any case has been made out for the extension of the time under section 151 of the Civil Procedure Code. Section 148 does not seem to apply and, according to Suranjan Singh v. Rambahal Lal ( (1913) 35 All. 582), it is not meant for pre-emption suits."
21. The case law referred to above sets the matter at rest that the executing Court is ineligible and excluded to lay its hand on the controversy or questions falling out of the ambit or scope of the provisions of section 47 of the Code of Civil Procedure.
22. Some of the Law Lords have even gone to the extent that where a decree-holder, under a defective decree for non-payment of the decretal amount, gets possession of the subject-matter the judgment-debtor can claim restitution of possession. This view was owned in Mehr Din v. Brij Lal and others . It has been held in that case :- "When the decree-holder in a pre-emption suit fails by mistake to deposit the full price in Court, the judgment-debtor is entitled to apply for possession of the property by restitution if he is already dispossessed and the contention that the mistake was made by an official of the Court is unsound, where it cannot be said with certainty which of the officials of the Court had made the calculation and whether it was made under the authority of the Court."
23. This point again came up for consideration in 18 I C 347. Kanbaiya Lall, Actg. J. C. Discussing sections 148, 152 and Order XX, rule 3 and rule 14 of the Code of Civil Procedure laid down that :- "A Court cannot extend the time granted by a pre-emption decree for the payment of the purchase money after the time fixed by a decree has expired, and that a right, extinguished by virtue of a decree of a competent Court binding on the parties, cannot revive by any subsequent act of the Court or the party at fault."
' This view also received indirect approval in 'Malik Khan v. Miran Khan' . It has been observed in this case :- "In a pre-emption suit the order of the original Court fixing the time under which payment is to be made forming as it does not part of the ' decree of the original Court can only be set aside by the decree of superior Court. The appellate Court cannot set aside any portion of that decree by an interlocutory order under section 148, Civil Procedure Code, especially one passed ex parte."
Similar view was taken in Mardan Shah v. Sattara and others . It was held in this case.
"Neither section 148 nor section 151, C. P. C. Can be invoked to extend time for payment of pre- emption money. 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. There is no room for the application of the inherent power where there is an express provision negativing the claim of the petitioner. Since the relief asked for by the petitioner could not7 8 9 10 be granted according to law, as admitted by his counsel, he cannot benefit by the provisions of section 151, C. P. C. A decree can be altered in appeal, review or revision but neither section 148 nor section 151, C. P. C. Can be utilized for this purpose."
24. Lastly Kh. Muhammad Saeed, the learned counsel, wanted us to exercise the inherent powers of the Court to do complete justice. Inherent powers cannot be exercised for those who are unjust to themselves. Moreover, such power is not meant to frustrate the clear provisions of law. This power is materially meant to rectify and redress the mischief and wrong which had occasioned for no obvious fault on the part of the party invoking such powers.
25. It may be stated here that Ghulam Qadir, the husband and attorney of Mst. Hanifa Begum, moved an application on 20-4-1972 for deposit of Rs. 1,700 which he was allowed to deposit. There was no report furnished by any Court official as to the correct amount to be deposited and at his own initiative he requested the Court to allow him to deposit Rs. 1,700, which turned out later to be incorrect amount. The error, if any, it is manifest, was committed by the appellant herself. Therefore, on equitable consideration too she is not entitled to any indulgence.
For the above-stated reasons we have reached the conclusion that for the appellant's default in making payment of the correct amount within the time fixed by the trial Court, her suit stood automatically dismissed and there was no justification for extension of time either by the executing Court or by the First Appellate Court (District Judge) or the High Court (Second Appellate Court).
We would, therefore, dismiss this appeal. No order as to costs. PLD 1982 SC 282 F' L D 1948 P C 237 AIR 1960.SC 388 AIR 1962 SC 199 PLD 1965 (W. P.) Kar. 293 Pl. 13 1978 Kar. 205 AIR 1924 Lah. 359 AIR 1923 Lah. 250 AIR 1944 Path. 22 PLD 1954 Lah. 87