' RAM MUHAMMAD KHURSHID KHAN, ACTG. C. J.-This appeal by leave is directed against the judgment and decree dated 29-9.1980 passed by the Azad Jammu & Kashmir High Court in Civil Appeal No, 27 of 1979. The facts which formed the background are that Muhammad Shamoon, appellant herein, in a pre-emption suit, was granted a pre-emptive decree on payment of Rs, 8,000 by the Court of original civil jurisdiction, Bhimber, and the amount was directed to be deposited in the Court on or before 31st of January, 1974.
2. Against this judgment of the learned trial Judge, Muhammad Shamoon filed an appeal before the District Judge, Mirpur, for reduction of the sale consideration and secured a stay order on 29th of January, 1974, in so far as it related to the deposit of pre-emption money to the effect that the deposit order shall remain inoperative during the pendency of the appeal.
3. The appeal was, however, dismissed by the District Judge on 3rd of May, 1977. The date for deposit by 31st of January, 1977, obviously had already expired. No new date was fixed by the learned District Judge for depositing the decretal amount. The appellant pre-emptor however, on his own, deposited the amount in the trial Court on 24-7-1977 which deposit was objected to by Mohabbat Khan, the vendee-respondent herein, on the ground that the petitioner failed to deposit the amount within the period fixed by the trial Court and also slept over the matter after dismissal of the appeal and this fact had caused dismissed! Of the suit under the relevant law.
4. The learned Sub-Judge, it may be stated here, found the plea of the respondent as genuine and so was unable to confirm the decree. The learned Sub-Judge also held that he had no power to extend the period to deposit the decretal amount as he had no control over the matter. Appeal before the District Judge also failed and a learned Single Judge in the High Court, as, said earlier, vide order dated 29-9-1980, declined to interfere with the finding of the subordinate Courts. Hence this appeal to impeach the said judgment of the High Court.
5. It may be stated here that the appeal before the High Court was not competent. However, the learned Judge felt advised to dispose it of as a revision petition.
6. Raja Muhammad Siddique, the learned counsel for the appellant, addressed lengthy arguments in support of this appeal but the crux of his submissions is that the learned Single Judge had overlooked the fact that during the pendency of the appeal against the pre-emption decree the first appellate Court had suspended the operation of decree of the trial Court so far as the deposit of pre-emption money was concerned and, therefore, the appellant could not possibly deposit the amount until the decision in the first appeal and by the time it was decided the time fixed by the trial Court for the deposit of the pre-emption money had expired and under Order XX, rule 14 of the Code of Civil Procedure, the learned District Judge must have fixed time afresh for making the deposit and this having not been done, the appellant cannot be made to suffer for the fault of the District Judge. In view of the above, it was contended that three years' period which allowed for the execution of the decree or at least the period of appeal, i,e,, 90 days permissible to the appellant to file an appeal against the judgment of the District Judge to the High Court would be considered to be a reasonable time to deposit the decretal amount in the absence of a clear order by the District Judge to make the deposit by a specific date or time. The dismissal of the suit for non-deposit of the pre-emption money in the above circumstances, according to the learned counsel, is a legal error or at any rate it is a case of arbitrary exercise of discretion and needs to be discharged in holding that the deposit made by the appellant within one month and twenty days after the dismissal of his appeal by the District Judge is well in time.
7. As against this, Ch. Ali Muhammad, the learned counsel appearing for the respondent, submitted that the reasonable time, in the context of this case, would be only two days the time which was still available for making the deposit on the date when the appellate Court suspended the decree of the trial Judge. He controverted the stand of Raja Muhammad Siddique and submitted that ninety days, the time required to file an appeal; or three years time allowed for the execution of the decree cannot be made available to the appellant for making the deposit. If we do so, it would amount to legislation by the Court which is no function of the Court. He, however, submitted that the appellant had himself gone in appeal, secured the suspension of the order of the trial Judge regarding the deposit and had to be very vigilant in taking necessary steps arising from the decision of his appeal.
8. It would appear that the following three contentions were raised by Raja Muhammad Siddique before us for consideration :-
(i) The learned District Judge should have fixed the time for deposit in his order while disposing of the appeal of the appellant. Reliance is placed for the purpose on Order XX, rule 14 of the Code of Civil Procedure; (ii)there was sufficient ground for condonation of delay particularly when the original decree of the learned trial Court. So far payment of decretal amount was concerned, was suspended by the learned District Judge and the time actually fixed having already expired during the pendency of the appeal, and no time afresh has been fixed by the District Judge; and
(iii) three years' time allowed for the execution of the decree or at least 90 days' time required to file an appeal, is to be allowed to the appellant to make the deposit.
9. After giving our dispassionate thought to the points of objection, listed above, we could not persuade ourselves to accept these contentions. So far as the first contention is concerned the decree of the learned District Judge was not of variation of the decree of the trial Court and, therefore, A the provisions of Order XX, rule 14, Code of Civil Procedure, could not be invoked. So far as the second contention is concerned, no doubt, it is correct that on 29th of January, 1974, the decree of the trial Court directing the appellant herein to deposit the amount in dispute by 31st January, 1974, was suspended; this order of suspension remained operative only up to 3rd May, 1977, when the appellant's appeal ended in failure. Strictly speaking the appellant could have, therefore, made the necessary deposit only up to 5th of May, 1977, the period which was left over after deducting the period during which the decree of the trial Court remained suspended under the order of the District Judge. This having not been done the appellant, after one month and twenty days, on his own, deposited the decretal amount and this period can hardly be considered to have fulfilled the legal requirements. In such like cases we think allowing only the remaining period of deposit, when the operation of the decree stands suspended by an appellate Court, may not be considered to meet the ends of justice.
To us in cases of the type when the stay order is issued and no new date is fixed for depositing the decretal amount by the appellate Court, the party can deposit the amount within a "reasonable time" and not within three years' (the period required for the execution of a decree) or ninety days' time requisite to file an appeal.
10. This brings us to consider as to what do we mean by "reasonable time" and how it should be construed? The view expressed in the recent pronouncements is that the time for payment of pre- emption amount is always governed by the rule of "reasonable time". The question arises as -to bow this rule is to be applied in a case where the appellate Court suspends the operation of the decree and finally dismisses the appeal without fixing the time afresh and in the meanwhile the time originally fixed had expired (as is the case before us).
11. In cases where the appellant obtains a stay order from the appellate Court stopping the operation of the order under appeal during the pendency of the appeal, be stay order suspends the operation of the order of-the original Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of the performance, piers during the suspended period (as is before us) the party, that had to perform the act on that date, cannot be visited with a penalty for not having performed it during the time when its operation was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree with all its contents and provisions, the time for the performance of the act which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order; nevertheless we think that it would be but fair that the original time allowed to a party by the trial Judge should start running afresh from the date his appeal starts dismissed putting an end to the stay order.
12. In the instant case, the decree against the respondent was passed by the Sub-Judge on 31st of December, 1973, subject to the deposit o Rs, 8,000 as purchase price on or before 31st of January, 1974. Obviously, 31 days were allowed to him for making the deposit of the decretal amount.
Therefore, after dismissal of the appeal on 3rd of May, 1977, on the principle of "reasonable time" the utmost concession that can be allowed to the appellant who bad failed to make the deposit within the time specified in the deer granted to him by the trial Court and the appellate Court had also granted him no fresh time, the time for depositing the decretal amount would be considered as the same as was fixed by the trial Court but it would be reckoned from the date the appeal stands dismissed. This, to us, would be fair and also reasonable time for a party.
13. All the cases are one to state that the deposit must be mad within a reasonable time from the decision of the last Court, failing which the suit must be dismissed in terms of the original decree. In a case cited as Half Ishtiaq Ahmed and 2 others v. Bekhshaya and 7 others (1), there being no specific order by the appellate Court granting extension of time for the purpose, it was held that the deposit should have been made within a {{FOOT NOTE}}
(1) 1976 SCMR 420 {{FOOT NOTE}} reasonable time. In that case the deposit made after one month and eighteen days after the dismissal of the appeal was held to be made not within reasonable time and the suit for pre- emption was dismissed.
14. Before we part with the case we may make a mention to some of the cases cited at the bar for and against the proposition of reasonableness of time :-
(I) Shah Wall v. Ghulam Din PLD 1966 SC 983.
(2) Haji Ishtiaq Ahmed and 2 others v. Bakhshaya and 7 others 1976 SCM R 420.
(3) Khurshid Akbar v. Mian Mansur Ahmed and another 1982 SCMR 824.
' In Shah Wall v. Ghulam Din (1), Cornelius, C. J. Approved the rule of "reasonable time" as laid down in Kisan Dewaloo Mali v. Ganga Bai (2), in the following words :- "A parallel case to the present case is that of Kisan Dewaloo Mall v. Ganga Bai AIR 1939 Nag. 279 where the pre-emptor after dismissal of his suit by the District Judge withdrew the money he had deposited towards the price in compliance with the trial Court's decree. Later, his appeal was allowed by the High Court and the suit was decreed in his favour, but no time was fixed for payment of the price. When he attempted to deposit the money in the trial Court, he was resisted on the ground that the time fixed had already expired, but the matter coming again before High Court, it was held that this was a case of `technicality pushed to extremes' and that the money ought to have been allowed to be deposited within a reasonable time."
' In the same case, Hamoodur Rehman, J. (as he then was) observed :- "But there appears to be some difference of opinion on the question as to what is to happen if the, appellate Court even in such an appeal says nothing about the time fixed by the lower Court in making the deposit. One view is that the time remains unchanged, for, even if the appellate decree supersedes the r decree appealed from it must be taken to have simply confirmed that the decree to that extent vide Sukhram Dag v. Nazar Muhammad. The other view is that if the appellate Court decree is the only ?Executable decree and it fixes no period for depositing the pre-iniption money the appellate decree must be deemed' to have incorporated the terms of the decree appealed from with this difference that the .Period fixed will run from the date of the appellate decree vide Rup -Chard and others v. Shanu-ul-fehan. The third view is that in such'. Even the deposit may be made within a reasonable time from the date of the appellate decree vide Guptar Tewari v. Debi Soran" Tewari AIR 1914 All. 248 and Kissan Dewaloo Mali v. Ganga Bed AIR 1939 Nag.
279. Another extreme view taken is that in such a case the sue ssful pre-emptor should be entitled to enforce the decree within the period prescribed for the execution of the decree by the Limitation Act, vide Chakar Dar and others v. Ghapila and another 10 P R 1895.
' Neither the first nor the second nor the last view appear to be based upon sound principles. If the first view prevails then the right of appeal would be rendered illusory unless the deposit has been made {{FOOT NOTE}}
(I) PLD 1966 S C983 (2) AIR. 1939 Nag. 279 {{FOOT NOTE}} even if the pre-emptor is appealing against the quantum of the pre-emption money of the reasonableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorporated within it the terms of the decree appealed from how can the starting point of the period be deemed to have been varied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, Civil Procedure Code. In the circumstances, I would agree with my Lord the Chief Justice that the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and the successful pre-emptor is not deprived of the fruits of his decree unreasonably."
' In Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others it was held :- "Coming now to the facts of the instant case, we have already stated that the period fixed for the deposit of the pre-emption money by the trial Court had expired by the time the pre-emptor's appeal was dismissed by the District Court on 19-4-1969, on which date the interim order made by the appellate Court suspending the original decree with regard to the deposit of the amount also came to an end. There being no specific order by the appellate Court granting an extension of time for this purpose, fife deposit should have been made within a reasonable time, but it was not made until the 6th of June, 1969. No explanation was furnished by the pre-emptor for her failure to make the deposit for a period of one month and 18 days after the dismissal of her appeal."
' In Khurshid Akbar v. Minn Manzur Ahmad and another (I) it has been observed :- `Even if the rule of 'reasonable time' as enunciated in Ishtlaq Ahmad's case which was strongly relied upon by Mr. A. R. Sheikh was to be applied, a close perusal of the judgment in that case shows that it was observed therein that the utmost concession that can be allowed to a pre- emptor, who had failed to make the deposit within the time specified in the decree granted to him by the trial Court or the appellate Court and in whose case no fresh extension of time is granted by the higher Court acting in first appeal, second appeal or revision, as the case may be, is the rule of 'reasonable time' mentioned by Cornelius, C. J. And Hamoodur Rehman, J. In the case of Shah Wali.
In all such cases, their Lordships observed that the deposit must be made within a 'reasonable time' from the decision of the last Court, failing which the suit must be dismissed in terms of the original decree."
15. In view of the above, the argument of Ch. Ali Muhammad, the learned counsel for the respondent, that time left for making the deposit of the decretal amount at the time the order of trial. Judge stood suspended by the appellate Court was to be allowed, cannot be adhered to as it may perpetuate injustice. We find that after the dismissal of the appeal so much of the time as was originally fixed by the trial Court, should be considered as reasonable time and be allowed in all such cases. We do not think that the appellant, towards depositing the preemption amount after one month and 20 days case be said as to have Acted within a reasonable time. We feel that since the or& of the Sub-Judge had b. En superseded by that of the appellate Co made on 3rd of May, 1977, though it was one of affirmance, the time allowed {{FOOT NOTE}} (1)1982SChlit 024 {{FOOT NOTE}} ' by the trial Judge for making the deposit was to be counted from the date of the order of the appellate Court. The appellant was given 30 days in all for depositing the decretal amount. On first appeal the learned District Judge, vide his order dated 29-1-1974, suspended the operation of the order for payment of the decretal amount. On these facts we think that the period allowed by the trial Judge for depositing the decretal amount should be fi reckoned from the appellate order and this should be considered as a reasonable time for making the deposit.
16. We have already stated that the period fixed for the deposit of the pre-emption money by the trial Court had expired by the time the pre-emptor's appeal was dismissed by the District Judge on 3rd of May, 1977, on which date the interim order made by the appellate Court suspending the original decree with regard to the deposit of the amount also came to an end. I here being no specific order by the appellate Court granting extension of time for this purpose the deposit should have been made within the reasonable time,
1. e., within thirty days after the decision of appeal but it was not made until 24-7-1977. No explanation was furnished by the appellant (pre-emptor) for his failure to make the deposit for a period of one month 'and 2u days after the dismissal of his appeal. The High Court was, therefore, right in the circumstances in holding that the deposit had not been made within a reasonable time.
The appeal, therefore, fails and is hereby dismissed.