SARDAR MUHAMMAD IQBAL, J.-The dispute 9n this case relates to 5 kanals and 1 marla of land situate an the revenue estate of village Nawan Rangpura, Tehsil and District Gujrat, which was solo by Siraj Din and his two brothers, namely, Muhammad Din and Mehr Din on the 26th of October 1960 in favour of A.I Ahmad and Khalil Ahmad, appellants. Muhammad Fazil son of Siraj Din, respondent No. 1, filed Suit No. 294 of 1961 for posses--sion by pre eruption of the land in dispute.
The parties, however, compromised the matter and the vendees on receipt in Court of an amount of Rs. 7,000.00 from the respondent-pre-emptor, made a statement on the 8th of December 1;61 that a decree be passed in favour of Muhammad Fazal. Accordingly, a consent decree was passed by the learned Administrative Civil Judge on the 8th of December 1961. The respondent took no steps for execution of the decree till the 5th of February 1967 when he submitted an application to the Revenue Assistant for sanctioning the necessary mutation on the basis of the said decree of the civil Court. The Assistant Collector, Grade II, sanctioned mutation No. 4209 on the 7th of July 1967 giving effect to the decree of the civil Court. The appellants sought review of the mutation on the ground that since the respondent had not applied within the prescribed period of limitation for execution of the degree of the civil Court, the same had become inoperative and lost its binding effect. The Assistant Collector, Grade 11, reported the matter to the Collector for his permission to review the mutation already sanctioned in favour of the respondent. The Collector grantee the requisite permission on the 27th of July 1967 and the Assistant Collector, Grade Il, by his order dated the 7th of August 196' cancelled mutation No. 4209 dated the 7th of July 1967. It was without hearing the respondent and without issuing any notice to him. The Collector accepted the appeal of the respondent on the 23rd of December 1967 and remanded the matter to the Assistant Collector, Grade II, for fresh decision after hearing the parties. The Assistant Collector, Grade 11, again sanctioned the mutation on the 2nd of March 1968 in favour of the respondent. The appellants challenged that order in appeal before the Collector who accepted it by his order dated the 7th of August 1968 on the ground that since the respondent had not applied for execution of the decree within the prescribed period of limitation, the decree had become ineffective and not binding on the parties. The second appeal filed by the respondent was dismissed by the Additional Commissioner on the 3rd of December 1968. The learned Members, Board of Revenue, dismissed the revision petition of the respondent on the 31st of July 1969. The respondent then filed Writ Petition No. 792 of 1970 which was accepted by our learned brother, K. E. Chauhan, J., by his order dated the 1st of Novem--ber 1971 and he, by quashing the orders of the Collector, the Additional Commissioner and the learned Member, Board of Revenue, restored the order of the Assistant Collector, Grade Il, dated 2nd of March 1968 by which the mutation had been sanc--tioned. This is the Letters Patent Appeal;
2. It was contended on behalf of the appellant-vendees that they had acquired right in the land by purchase and remained vested with the same notwithstanding the decree in favour of the respondent, because it was not accompanied with possession.
The contention is untenable. The trial Court passed the decree for possession on the basis of pre- emotion in favour of the respondent- pre-emptor as a result of the compromise which was arrived at between the parties. The respondent paid the entire amount in the Court. A decree conclusively determines the rights of the parties with regard to the matters in controversy in the suit. The suit for pre-emotion has special incidents. The property vests in the vendee by virtue of "e sale made in his favour by the vendor. A person when he files a suit to pre-empt the sale, he does not do so in the exercise of any right in the property but on the basis of his statutory right to pre-empt the sale. He, therefore, does not have any existing right in the property when he institutes the suit. It is only when the decree is passed and the payment is made that the decree becomes one in his favour and he becomes vested with the property.
The decree in a pre-emotion case is passed in accordance with the provisions contained in Order XX, rule 14, C. P, C. And its relevant portion reads as : "(1) where the Court decrees a claim to pre- emotion 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 defen--dant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment".
Thus it is on the payment of the decretal amount that the title accrues to the pre-emptor and not on the delivery of the possession. It is, indeed, mentioned that the defendant shall deliver the possession of the property to the plaintiff but the fact that the possession is not delivered does not in any way affect the vesting of the property in the pre-emptor. It only means that on payment of purchase-money the pre-emptor gets title in the pro--perty and he thereby becomes entitled to its possession from the vendee. In Deokinandan v. Sri Ram ((1890) 12 All. 234) the majority view was that "the decree merely avoided the sale and that it divested the original owners of all interest in the property as from the date when the decree became final by the payment in accordance with its terms, by the pre-emptor of the pre-emotive price decreed, and vested in the pre-emptor the rights of ownership from that date". Mahmood, J., went much further than his colleagues and held: "the vendees were entitled to the profits not only to the date when the pre-emptor had paid the pre-emotive price, but to the date when had actually acquired possession of the property in accordance with the terms of the decree". The decision by Mahmood, J., was under the Code of 1882 where the pre-emption decree was drawn in terms of section 21.4 which reads : "When the suit is to enforce a right of pre-emotion in respect of a parti--cular sale of property, and the Court finds for the plaintiff, if the amount of purchase-money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid and shall declare that on payment of such purchase-money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid the suit shall stand dismissed with costs".
3. The learned counsel next contended that the respondent had lost all right and interest in the property on his failure to execute decree within three years provided under Article 182 of the Limitation Act.
4. The appellants, therefore, can succeed only if they are able to make out that section 28 of the Limitation Act is attract--ed. It reads as : "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." This section applies to suits, and suit as provided under section 2, clause (10) of the Limitation Act "does not include an appeal or an application". Article 182 does not prescribe the period of limitation for the institution of a suit by the decree-holder. It merely prescribed the period of limitation for an application for delivery of possession to him. Section 28 does not apply to applications for execution under Article 182. Therefore, if the respondent did not apply for the execution within the period of limitation, his right and title in the property which he acquired by virtue of the decree for pre-emption is not extinguished. He continues to be the owner of the land notwithstanding that he did not file an application for execution. The failure on the part of the decree-holder to take delivery of possession within the time limited by Article 182 of Schedule I of the Limitation Act only bars his remedy to seek assistance of the Court to order to, put him into possession. In spite of his failure in that behalf he may get into possession by an amicable arrangement with the judgment-debtor or in any other way. His title remains alive unless it is lost either by way of sale, gift, etc. Or by operation of some statute, for example section 28, Limitation Act.
5. It was next contended that the respondent by instituting collusive suit against Ghulam Hussain and Muhammad Ramzan who were the tenant of the appellants had obtained the order of ejectment against them and also succeeded in taking possession from them; that the appellants had filed a suit for recovery of possession of the said land and that the learned Judge was not justified in writ proceedings to hold that the tenants could attorn to the respondent and this finding is bound to adversely affect the appellants' case. We see no justification for such apprehension because the learned Judge has not given any definitive finding on that question and 1t is clear from his following observations "The plaintiff had succeeded in obtaining the possession of the suit land. A controversy is going on that the aforesaid possession was obtained collusively from the tenants, but neither I am nor were the Revenue authorities in mutation pro--ceedings concerned with that aspect of the matter."
It is manifest that the learned Judge has left the real contro--versy between the parties in the suit to be decided by the civil Court.
6. The learned counsel then contended that the learned Single Judge has held that Ghulam Hussain and Muhammad Ramzan, even if they were the tenants of the appellants, could attorn themselves to the respondent and that this finding will be used against them in the suit. Doubtless the learned Judge has made certain observations in this behalf, but again they cannot be deemed to be the conclusive determination of the matter as is manifest from his observations : "Be that as it may, the facts hereinbefore mentioned show that somehow or other, the peti--tioner did obtain possession of the land".
7. The respondent had admittedly obtained the possession of the land in suit. He is the owner of the land, because his title has not been extinguished either by operation of law or by his own act. He has the right to remain in possession till such time as he is dispossessed in duo course of law.
Section 9 of the Specific n Relief Act provides summary and speedy remedy through the medium of the civil Court for the restoration of possession to a party dispossessed by another, within six months of its disposses--sion leaving them to fight out the question of their respective titles in a competent Court if they are so advised. (See I L R 13 All. 537 and AIR 1922 Bom. 216). The remedy of the appellants was/is thus under section 9 of the Specific Relief Act and if they have already filed this suit, we have no doubt that it will be decided on merits and after determination of the question whether under law the old tenants could attorn themselves to the new owner and could render themselves liable for .The payment of rent and also for eviction.
8. It was next contended that the High Court cannot give direction to the Revenue Authorities to enter a mutation. He relied on Muhammad Iqbal v. S. A. M. Khan (PLD 1970 Lah. 614). The case was one where the right of a person had not been adjudicated upon by a Court and the writ was refused on the ground that sanctioning of the mutation neither creates a right nor does it take away any right of a person and that it only gives effect to a completed transaction of sale, gift, exchange, mortgage etc. The position here is different. There is a decree of the civil Court by which respon--dent acquired a title in the land in dispute. The Revenue Authori--ties are obliged under law to give effect to the decree. Section 45 of the West Pakistan Land Revenue (Act XVII of 1967) provides: "Entries in a record-of-rights shall not be varied in subsequent records otherwise than by
(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties". The Revenue Authorities are thus required by law to give effect to the decree and change entries in accordance with the rights determined thereby and if they fail to give effect to a decree by sanctioning mutation, a direction can be given to them under Article 98 to act in accordance with the provisions of section 45 of the Act, because the decree is a con--clusive proof of the title 9n a property.
9. The contention of the learned counsel in the context of the present case is otherwise untenable.
The learned Judge did not give any direction to enter the mutation. He only declared as without lawful authority and of no legal effect the appellate and revisional orders of the Revenue Authorities (who had passed those orders on a mistaken view of law that the decree ; if not executed within the period of limitation loses its validity) and restored the order of the Assistant Collector. The order of the Assistant Collector being in accordance with law, the learned Judge was justified to give effect to the same.
10. We find no merit in the appeal which is dismissed in limine.
K. B. A.