1. ' MUHAMMAD HALEEM, C. J.-This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 22nd of November, 1972, by which R. S. A. No, 325 of 1968, was declared to have abated.
2. Leave to appeal was granted to consider : firstly, whether there could be any abatement of the appeal after the enforcement of the Law Reforms Ordinance No, XII of 1972 in the context of its being a procedural amendment ; and, secondly, whether the High Court was in error in not granting reasonable time for depositing the decretal amount particularly when the decree of the trial Court was alive even if the appeal had abated.
3. ' The facts giving rise to this appeal are that Ghulam Rasool and others sold their agricultural land to Mst. Raj Bharri and others, respondents herein, for Rs, 12,000. Accordingly, sale Mutations Nos. 1116 and 1117 were entered and sanctioned on 17-12-1962. Ghulam Haider, predecessor-in-interest of the present appellants, pre-empted the sale through a suit on the basis that he had a superior right as being a co-sharer in the same Khata bearing No,
116. He further disputed the sale consideration as being fictitious and asserted that only Rs, 6,000 were paid as sale price for the land measuring 24 Kanals and 1 Marla. The trial Court decreed the suit holding the sale consideration to be Rs, 7,215 and directing Ghulam Haider to deposit this amount by 22-6.1965 failing which the suit shall stand dismissed.
4. ' In appeal. The first appellate Court enhanced the sale price to Rs, 12,000 but dismissed the appeal in all other respects and ordered the decree-holder to deposit the amount by 30th of April, 1966, failing which the suit shall stand dismissed.
5. ' Not being satisfied with the enhancement of the sale price, Ghulam Haider went in second appeal and a stay against the deposit of pre-emption money in excess of Rs, 7,215 was granted on 28-4- 1966 ; and during its pendency, he expired on 1-10-1968. An application for bringing his legal representatives on record was filed on 8-4-1969, and they were allowed to be impleaded subject to all just exceptions.
6. ' At the hearing of the appeal, the respondents objected to the continuance of the appeal as having abated and further submitted that as no sufficient cause was shown for the substitution of the legal heirs, the delay was not liable to be condoned. The High Court, in detail, examined the delay occasioned for not substituting the heirs within time and the explanation given therefor, and reached the conclusion that Muhammad Iqbal who had been prosecuting the suit and the appeal alongwith his father fully knew about the pendency of the appeal, but failed to take steps to get himself and the other legal representatives substituted within time. In holding so the High Court took note of the fact that Muhammad lqbal was literate and was serving as a Sub-Inspector in the Co-operative Department at Jhelum. Again as to the two of the legal heirs being minors and six others being Pardahnashin ladies, the High Court held that there was no point in dealing with their cases on a different footing as the decree was indivisible and if the appeal had abated against one it Would have abated against all of them. In its ultimate analysis it held that it was al case of inexplicable negligence and carelessness on the part of Muhammad Iqbal in not pursuing the appeal and refused to condone the delay.
7. ' As to the effect of the Law Reforms Ordinance, the High Court reached the following conclusion upon an examination of case-law : "Bearing these principles in mind and following the dictum of the Supreme Court with respect I find that in the instant case the appeal bad admittedly abated after the lapse of ninety days of the death of Ghulam Haider, i,e,, much before the Law Reforms Ordinance (XII of 1972) came into force.
8. Now till such time the abatement is set aside, the petitioners have no right to continue the appeal as legal representatives. The respondents had acquired a corres-ponding right to defeat the petition, which has been refused on merits. If the alteration in procedure is permitted to be applied retrospectively to this pending petition it would cause great injustice to the respondents so as to deprive them of the right which had accrued to them before the change came in."
9. ' As for not granting time for the deposit of the decretal amount, the High Court held as the "action fails what is incidental fails also". Josiam Tiruvengadachariar and another v. Sawmi Iyengar alias Venkatachariar and others (1)".
10. On the question whether the High Court was justified in not condoning the delay, we are of the view that the discretion exercised by the High Court in not condoning the delay was judicious and is not open to an attack. The learned counsel, however, contended that some of the legal representatives being minors and some of them Pardahnashin ladies, their case should have been adjudged on a different footing. But this argument again is without any legal justification as the High Court has correctly said that it would not have advanced the case of these persons as the decree D was indivisible and would have fallen through even if the appeal had abated qua one legal representative.
11. ' Coming now to the next question as to the effect of the Law Reforms Ordinance (XII of 1972) on pending proceedings, this point again needs no further examination as it stands concluded by the judgment of this Court in Sardar. Noor Hussain v. Chief Settlement Commissioner etc. (2) and Khawaja Jalal Din v. Chief Settlement Commissioner (3). In both these decisions it has been laid down that where abatement had taken effect before the enforcement of the Law Reforms Ordinance, 1972, it will not give continuity to the proceedings as it is not retrospective in operation.
12. The effect of this dictum is that the matter had to be decided in accordance with the law in existence then. Accordingly, the appellants cannot get any benefit from the provisions of this Ordinance enforced later.
13. ' Before entering on the main discussion I would like to point out that the deceased appellant, by an order of this Court dated 21st of January, 1973, was ordered to deposit the full price as decreed by the first appellate Court by or before the 2nd of February, 1973. But as to whether this amount had, in fact, been deposited is not apparent from the record. Be that as it may, in this milieu the appeal had abated.
14. ' Abatement, as it is defined in the Oxford English Dictionary, Volume I (1933), page 10, means : "In its present most general, signification it relates to writs or plaints, and means the quashing or destroying the plaintiff's writ or plaint ; state of being quashed or annulled." This definition conveyes a jurisdictional implication as would be presently seen.
(1) I L R 34 Mad. 76 (2) PLD 1983 SC 62 (3) 19435 SCMR 1359 ' As the right of pre-emption is not a personal right and attaches to and runs with the land, it survived to the legal representatives of the deceased appellant on his demise. But since the legal representatives failed to take steps to get themselves substituted within time in accordance with Order XXII, rule 3, C. P. C., the High Court did not condone the delay and declared the appeal to have abated. The legal consequence, therefore, is that there was no legal representation of the right of the deceased appellant to continue with the appeal ; and in the absence of such representation the appeal stood totally effaced ; with the result that the Court had no jurisdiction to pass an order, extending the time under section 22 of the Punjab Pre-emption Act or section 148, C.
15. P. C. For the payment of the sale price, in favour of the legal representatives who had no locus standi to represent the deceased appellant. The question is on of jurisdiction and if, at all, an order had been passed it would have been a nullity in the eye of law. See Imam-ud-Din and another v.
16. Sadarat Rai (1), Jhenak Singh and another v. Ambika Prasad and others (2) and Amarsangji Indrasangji v. Desai Umed (3).
17. ' As to the existence of the decree in favour of the deceased appellant, it is settled law that it is only when the full sale price is deposited in accordance with the order of the Court that title passes to the successful pre-emptor under Order XX, rule 14(1)(a). This not having been done b the deceased appellant. The decree also fell through on the appeal having abated under Order XX, rule 14(1)(b) and the suit stood dismissed on the date on which the Court declared the appeal to have abated.
18. The interlocutory orders passed in second appeal and by this Court at the petition stage are not consequential and cannot save the decree in view of th effacement of the proceedings in the High Court.
19. ' Mr. Ahmad Raza Qasuri, learned counsel for the appellants relied on Malik Hayat Ullah and 2 others v. Murad Ali Khan (4) and Ghulam Muhammad and another v. Irshad Ahmed and another (5), but these cases are distinguishable on facts as no question of abatement was involved in them.
20. ' Accordingly, the appeal fails and is hereby dismissed with costs.
(1) 5 I C 897 (2) AIR 1923 All. 414
(3) AIR 1925 Born. 290 (4) PLD 1972 SC 69
(5) PLD 1982 SC 282