Feroz Din plaintiff-petitioner sued Sheikh Ahmad defendant --respondent for possession of land, bearing Khata No. 420/756, Khasra No. 50, measuring 14 kanals, 14 marlas out of it to the extent of 1/3rd snare of ownership right with share of Shamilat and Khata No. 421/757, 757, Khasra No. 78 and 79 (two plots), measuring 24 kanals, 10 marlas, out of it to the extent of 36/40 share of the occupancy right situated in the area of Jhangra, Tehsil Abbottabad or whatever the area on rights may be proved to be transferred in favour of the defendant on the basis of sale mutation No. 2435 attested on 28th October 1966 by pre-emption on payment of Rs. 1500 or the price fixed by the Court. The learned Civil Judge, Abbottabad, who tried the case by his judgment dated 31st October 1968 granted the plaintiff "a decree for the possession of the suit land through pre-emption on payment of Rs. 5000", and directed the plaintiff "to deposit this amount into Court by 15th December 1968 otherwise his suit shall be deemed to have been dismissed with costs". The plaintiff-petitioner Feroz Din, did not deposit the amount of Rs. 5000 in obedience to the decree up to 15th December 1968, but preferred an appeal before the District Judge, Hazara, on 18th December 1968 viz., three days after the time allowed for the deposit of the amount by the decree.
The learned counsel for the plaintiff during the pendency of the appeal before the District Judge submitted an application on 23rd April 1969 for extension of time for the deposit of the pre-- emption money. The appeal was heard and decided on 28th May 1969. The learned District Judge held: "I, therefore, hold that as the suit of the plaintiff stands dismissed for want of deposit of the pre-emption money by the pre-emptor on or before the scheduled date therefore the appeal in the present form does not lie and the request for extension of period of deposit of money cannot be considered. The appeal fails and is dismissed with costs.
2. Feroz Din plaintiffs has come on revision to this Court.
3. The learned counsel for the petitioner contended, that the learned appellate Court did not exercise discretion judi--cially in not extending time for payment of the pre-emption money, and by doing so, he has committed a material irregularity. He argued that the time could be extended for deposit of the pre-emption money by the appellate Court in view of sections 148 and 151, C. P.
Code. The contentions are misconceived.
4. As earlier stated, in the present case, the learned Civil .Fudge, Abbottabad, by his judgment dated 31st October 1968, passed a decree for possession of the suit land through pre-emption on payment of Rs. 5,000 in favour of the plaintiff against the defendant, and directed the plaintiff to deposit this amount into Court by 15th December 1968, or iii default, the suit was to stand dismissed.
5. Section 148, C. P. Code provides for the enlargement of the time "where any period is fixed or granted". This section lays down that: --- "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."
The principle underlying the application of this section to a case depends on the question whether the matter has been finally disposed of by the Court or the Court is seized of the matter and has control over it. If the order is not final and the Court retains its control over and is seized of the matter, it has full power to make any just or necessary order therein including in appropriate cases the extension of the time under, this section. On the other hand, if the effect of the order is that in the event of non-compliance, it operates automatically and without .Further intervention of the Court this section cannot be applied for the obvious reason that the Court ceases to be seized of the matter and becomes functus officio. Thus the Court ceases to have jurisdiction over the matter after the order granting the period has passed. The time cannot he extended even by the same Court. Reliance is placed on Beni Prasad v. OM Prakash and another ((1938) 177 1 C 824). In Hukam Chand and others v. Hayat and others ((1912) 47 P R 343), it has been held: -- "The general provisions of section 148 of the Civil Procedure Code, 1908, relate only to proceedings antecedent to the passing of a final decree and are not intended to give a Court power to alter the terms of a decree already passed, and that the period fixed in a decree for the payment of a certain sum of money consequently cannot be extended under this section."
"A decree can be altered by review, on appeal or revision, but neither section 148 or section 151 can by utilized fort he purpose of altering a decree."
PLD 1954 Lah. 87), it has been ruled "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 negative the claim of the petitioner. Since the relief asked for by the petitioner could not be granted according to law, as admitted by his counsel, he cannot benefit by the provisions of sec--petition 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."
6. In the quoted case, Mardan Shah had applied under section 148, C. P. Code for extension of time and condonation of delay in the payment of pre-emption money which was ordered in the pre- emption suit to be deposited by 16th June 1952, failing which the suit was to stand dismissed. The point of law involved in the present case is similar.
7. Learned counsel for the petitioner attempted to avail of the provisions of subsections (1) and (2) of section 23 of the N.-W. F. P. Pre-emption Act, which read as under: "23. (1) In every suit for pre-emption the Court shall at or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not in the opinion of the Court, exceed the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceed--ing such probable value within such time as the Court may fix in such order.
(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1).
7. The mandate of law in subsections (1) and (2) of section 23 lays down the period for deposit of the pre-emption money at or at anytime before the settlement of the issues by the plaintiff in Court dealing with the suit, and allows the appellate Court in appeal to exercise such powers of the trial Court, The learned lower appellate Court has thus acted in the exercise of its jurisdiction with no illegality or material irregularity.
8. The revision petition is thus dismissed in limine.
A. E.