' RAJA MUHAMMAD KHURSHID KHAN, ACT G. C. J.-One Syed Arnie Shah, deceased, whose heirs now in this appeal are arrayed as appellants, unsuccessfully pre-empted the suit land in the Court of Sub-Judge, Kotli. His suit was dismissed on 12-2-1972.
2. An appeal taken before the District Judge, however, succeeded. Consequently Syed Amir Shah, vide judgment dated 5-4-1973, was allowed a possessory decree of prior purchase on payment of Rs. 4,095. The preemptor was also required to make the payment of the amount paid to the proprietors by the vendees. This amount was however, neither specified nor entered in the decree.
The decretal amount thus remaining Rs. 4,095 was ordered to be paid to the vendees (judgment- debtors) before the 13th of May, 1973.
3. Syed Amir Shab, pre-emptor, failed to make payment of the decretal amount to the vendees on or before the specified date i. e. The 13th of May, 1973. He, however, after consuming the allowed period, on 9-6-1973, submitted an application to the District Judge to allow him further time for depositing in Court or making payment to the vendees the amount of decree. This application was disallowed by the District Judge vide order dated 9-6-1973, inter alia on the ground that the decree for his failure to make payment of the decretal amount within the fixed time had already faded and he had no control over the case.
4. The appellant (pre-emptor) then moved the second appeal before the High Court seeking extension of time for making payment of the decretal amount. This appeal also failed vide order passed by a learned Single Judge of the High Court on the 27th of December, 1978. This appeal, by leave, is meant to assail the said judgment of the High Court.
5. The only point which was canvassed by Sh. Abdul Aziz, the learned counsel for the appellants, during the course of arguments is that the decree of the learned District Judge cannot be termed to be a decree inasmuch as it offends the provisions of Order XX, rule 14 of the Code of Civil Procedure, 1908, and fails to stipulate that in the event the decrial amount remains unpaid on the date fixed, the suit shall stand dismissed. In his estimation this omission in the decree being violative of the mandatory provisions of Order XX, rule 14 of the Code of Civil Procedure, the appellant cannot be penalised in vacuum. Precisely his plank of attack is that as non-payment of the decretal amount is not met with the dismissal of the suit, the failure to make payment within the fixed period is not fatal for him and extension of time is the legal demand.
6. To have a correct approach to the matter it would be advantageous to reproduce rule 14 of Order XX of the Code of Civil Procedure. It reads :- AI) 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 clause (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."
7. It was, as said earlier, contended that to dismiss the suit for nonpayment of the decretal amount the decree must contain the provision that in the event the decretal amount is not paid on the specified date the suit shall stand dismissed.
8. The question, therefore, which we are called upon to determine, is as to whether in the absence of such a stipulation in the decree the failure of a pre-emptor to deposit the decretal amount within the time fixed would entail automatic dismissal of the suit or it will still keep the decree alive.
Judicial concept of the law is that a provision of pre-emption law must strictly be complied with to attract its rigor and even the technicalities, therefore, are also relevant to this law. A person, who wishes to avail himself of a right under such law, is required to be vigilant and see that he complies with all the conditions imposed upon him.
9. In the instant case the decree passed by the District Judge was to the effect that the appellant (pre-emptor) was to make the payment of the decretal amount on the 13th of May, 1973. The failure of the appellant (pre-emptor) to deposit the decretal amount on this date, however, was not made in the decree to, be met with the consequence as stipulated under Order XX, rule 14 of the Code of Civil Procedure. Can this omission be said to create a justifying ground for the appellants for extension of time ?
10. As stated earlier the learned counsel for the plaintiff-appellants has argued that as in the original order of the District Judge there was no direction of indication that on failure to deposit the requisite amount within the time granted in its judgment, the suit of the plaintiff was to stand dismissed, therefore without existence of a direction of that type, failure to deposit or make payment of the amount, as the case may be, would not result in the dismissal of the suit under Order XX, rule 14 of the Code of Civil Procedure.
11. In some cases it has been observed that omission of such words is not fatal to the real force of the decree. So was held in Sheikh Muhammad Sadiq v. Bostan and others . In that case, speaking for the Court, it was observed by Mr. Justice Karam Ellahi, J. (as he then was) :- "There is ample case-law to show that mere omission of such wording in the decree is destructive of the real force of the decree. In Jai Kishan v. Bhola Nath and another ( (1892) 14 I L R 519) (John Edge, C. J. And Tyrrell, J.) where in a suit for pre-emption the' decree, while decreeing the plaintiff's right to pre-empting upon payment of the pre-emption price within one month from the date of1 the decree, omitted to state what would be the effect on the plaintiff's suit on non-payment within the prescribed period : it was held that plaintiff, unless he had paid the pre-emption price before the expiry of the said month, could not enforce his decree for pre-emption. This was followed in Gurdit Singh v. Hukam Singh and others (53 P. R. 1903) (Anderson and Robertson, JJ.) which also was a case under the corresponding and similarly worded section 214 of C. P. C. Of 1882 (Act XIV of 1882) and it was held that 'a pre-emption decree becomes void and inoperative if the pre-emptive price is not paid within the time prescribed for its payment in the decree. An omission in the decree or any order as to what would be the consequence of the decree-holder's default in payment of the pre-emptive money does not in any way affect the case.' Same view was taken in Buta Singh v.
Chanda Singh (47 P R 1898), (Frizelle, C. J.) where it was held that 'where a decree in a suit for pre- emption directed that the sum for which pre-emption was decreed should be paid into Court by a certain date, but omitted to declare that if such sum was not paid on or before the said date, the suit should stand dismissed, such omission in the decree did not extend the time within which the plaintiff could pay the money, the plaintiff being bound nevertheless to pay the amount into Court within the time fixed. In such a case when the plaintiff failed to pay the amount into Court within the specified time, it was held that the decree had become one incapable of execution. The Supreme Court of India in later case reported in Naguba Appa v. Namdev (AIR 1954 SC 50) held that in situation of this nature dismissal does not take place due to the direction of the aforesaid type in decree but by the provisions of the statute itself which so says in Order XX, rule 14, C. P. C. The actual passage in the words of Mahajan, J who delivered the judgment for the Court reads as follows :- 'It was next contended that the decree drawn up by the trial Judge was not in accordance with the provisions of Order XX, rule 14 in that it contained no direction to the effect that if the deposit was not made within the time fixed the suit will stand dismissed. In or view, this contention is not sound because the dismissal of the suit is as a result of the mandatory provisions of Order XX, rule 14 and not by reason of any decision of the Court and the omission to incorporate this direction in the decree could not in any way affect the rights of the parties'.
12. We agree with the broader principle enunciated in the above-cited case but with profound respects which we have for the learned Judges of the Supreme Court of Pakistan we feel that an important aspect of the case of the nature has escaped the notice of the learned Judges. The aspect to which we refer is the circumstances which justify extension of time for payment of the decretal amount. It is now well settled that the Court which has control over the matter and not otherwise is entitled to extend the time. 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(Mere in italics) ' 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."
13. 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. This section, it is now 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 or the Court still retains season 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 order thereunder including an order for the extension of time.
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 test, in or view, is 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 or the Court still retains some control over the litigation. Examination, therefore, shall have to be made of the precise terms used in the decree.
15. In the present case the decree fails to stipulate automatic o through a separate order dismissal of the suit in the event the appellant defaults in making the payment of the decretal amount on a specified date. Therefore, it would be unfair to say that the words of the decree stipulate automatic operation for the dismissal of the suit. The words in the present case, used in the decree, in or view cannot be said to be the words of finality and the District Judge still had the control over the cause.
We say so because the decree of the District Judge is to the effect :- {{URDU TEXT}} ' The decree it would appear does not stipulate the penalty for the appellant's failure to deposit the decretal amount within the specified time
16. It is common day experience of all of us that the Judges in preemption suits couch the judgments in either of the following was :- (a)that if the decretal amount is not paid within time the suit will be dismissed ; (b)that if the decretal amount is not paid within time the suit will be treated as dismissed ; and
(c) that if the decretal amount will not be paid within time the suit will stand dismissed.
17. In this case none of the above phraseology has been used. It is important to note that there is a vast difference between the words 'will be dismissed I will be treated as dismissed' and 'will stand dismissed'. The Courts have ordinarily felt inclined to invoke their powers under section 148 of the Code of Civil Procedure and extend the time where the words used are 'will be dismissed' or words of similar import are employed. In such cases a separate order after default is necessary for the dismissal of the suits and the Courts always have control over the matter. But where the words used are the words of finality and are to take effect automatically, this section, as said elsewhere, can have no manner of application and the time cannot be enlarged. This is the view of the English Courts vide the Script. Phonographic Co. v. Gregg and Whistler v. Hancock .
18. For the view we have taken in the matter since the decree passe by the District Judge contains none of the words referred to above; it cannot be said with certainty as to which of the words were to be employed be the District Judge; at least we cannot be sure that the District Judge had in mind the words of finality i. e., 'that the suit shall be dismissed with costs.' It would be, therefore, legitimate to say that the District Judge still had control over the matter. Thus the proposition that since a decree normally puts an end to a suit and the Court has no power to pass any order thereafter does not apply strictly in this case.
19. In the circumstances referred to above, we are of the view that this is one of the cases where in the interest of justice the extension of time to allow the appellants to deposit the decretal amount is the legal demand. We say so because in or view another order by the District Judge for the disposal of the suit for non-payment of the decretal amount has not so far been recorded. In the result we accept this appeal, set aside the judgment of the learned High Court dated 27-12-1975 and direct that the appellants shall deposit the decretal amount; i, e., Rs, 4,095, on or before 6-8- 19'83. If the appellants make the deposit in time the vendee would deliver them the possession of the suit land. In the event the appellants default to make /he payment in time their suit shall stand dismissed with costs.
20. Before we wind up the case we may state that the stipulation in the decree that the amount paid by the vendees under the Land Reforms Act was also, to be borne by the plaintiff (appellants)2 3 has no relevancy to the case as so rightly pointed out even by the learned counsel for the respondents. We may state, it appears, that the learned Judge in the High Court entertained the erroneous belief that the decree contains the provision that failure to deposit the decretal amount would cause the dismissal of the suit. We say so because the learned Judge observed 'the position now is that on account of his failure to deposit the decretal amount, the suit also stands dismissed as the decree passed in his favour was conditional.' PLD 1979 SC 917 (1890) 50 L J 406 (N. S.) (1879) 48 L J Q B 606