1. MUHAMMAD HALEEM, C J.-- This appeal, by leave, arises from the judgment dated 26-7-1976 of the Lahore High Court, Lahore, by which Civil Revision No.749 of 1976, was dismissed in limine.
2. Leave to appeal was granted to consider: firstly, whether the High Court was correct in holding that the appellant had waived his objection as to the non-deposit of the balance of the amount under the decree dated 25th of May, 1967 within time by his subsequent conduct in having consented to the passing of the compromise decree by the appellate Court on 17-10-1967; and, secondly that as the suit stood dismissed on 25-5-1967, the appeal had automatically abated and consequently the Additional District Judge had no jurisdiction to record a compromise and pass a decree on that basis.
3. Hakam A.I, the father of the respondent herein, sold a piece of land measuring 43 Kanals and 5 Marlas situate in Tehsil Chunian, District Kasur, for Rs.5,500 by a registered sale-deed dated 30th of March, 1965, to Nazir Ahmad, the appellant herein. The respondent thereupon instituted a suit for possession through pre-emption claiming therein to have a superior right to pre-empt the sale of the land in dispute. The suit was decreed on 25-5-1967 where under the sale consideration' was determined to be Rs.2,000. Out of this amount, as Rs.1,100 has already been deposited, the pre- emptor was ordered to deposit the balance of Rs.900 before 27-6-1967, "failing which the suit shall be deemed to have been dismissed". The appellant thereupon filed an appeal on 30-6-1967 against the said decree. However, during the pendency of this appeal, the respondent moved an application for extension of time for the deposit of the balance of the amounts before the trial Court which remained pending until the compromise decree, and was withdrawn the next day.
4. The terms of the compromise decree are as under: "The parties have compromise. They have made statement. The plaintiff-respondent has agreed to pay Rs.5,600 to the appellant for the land and the appellant has agreed that the decree of the lower court for possession through .Right of pre-emption should be kept intact subject to the modification for the price on which right of pre-emption shall be considered to have been exercised.
5. So much so as this round of litigation is concerned.
6. The appellant next filed a suit to avoid the consent decree dated 17-10-1967 on the ground that as the balance of the amount under the first decree dated 25-5-1967 had not been deposited within time, the suit stood dismissed and the appeal against the decree, accordingly, abated, and the appellate Court had no jurisdiction to pass a compromise decree. The trial Court while decreeing the suit on 7-5-1975 held: firstly, that the suit stood dismissed on account of the failure to deposit the amount under the decree dated 25-5-1967 and having held so, the trial Court further reached the conclusion that the compromise decree was obtained by practising fraud on the appellant and the Court, as he had not disclosed that he had not deposited the amount of Rs.2,000 in time and had filed an application for the extension of time to overcome the default, and, secondly, !Hat there was no valid appeal pending for decision which could be disposed of by a compromise between the parties.
7. The respondent went in appeal and succeeded as it was allowed on 17-7-1976. The appellant next filed a civil revision as afore stated in the High Court which was disposed of by the following order: "The earlier appellate decree was passed on a compromise. Even if the suit is held to have been dismissed the petitioner should be deemed to have waived the objection by consenting to the passing of a fresh decree by the appellate Court. There was no merit in the petitioner's suit.
8. Dismissed in limine."
9. Now reverting to the facts of the case, the appellate Court had not passed any interim order to stay the deposit of the amount. It was only in the consent decree itself that the respondent was ordered to deposit the amount on or before 17-1-1968 less already deposited by him. The question, therefore, was as to whether the suit stood dismissed during the pendency of the appeal by the' non-deposit of the balance of the amount within the time prescribed under the decree.
10. PLD 1966 SC 983), the law on the subject is succinctly stated as under: "It is well settled that the operation of a decree, passed by a Court of first instance is not automatically suspended, on the mere filing of an appeal there from. This is also clear from ride 5, Order XLI of the First Schedule to the Code of Civil Procedure, which provides in sub-rule (1) as follows:- 'As appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.'
11. This being the position in law, unless in an appeal from the decree itself, the time fixed for deposit of the pre-emption money is varied, it seems to me, that the successful pre-emptor can disregard the time-limit fixed in the decree, at his peril. He might, of course, consider that the time allowed for payment by the trial Judge was too short, or that the pre-emption money fixed was excessive. In such a case, he might anticipate that the appellate Court would interfere, in the course of the appeal, with the decree and might give an extension of time for deposit of the correct amount. But if his anticipation is not realised in this regard and he has failed to deposit the money within the time fixed by the Court of first instance, the result must be that his suit would be dismissed. The same would be the position if the necessary deposit is not made within the extended time fixed by the appellate Court, as happened in the present case.
12. A decree passed in a successful pre-emption suit is of a composite and contingent character. If the pre-emptor satisfies the condition imposed on him with regard to the deposit of the pre- emption money, the decree for possession becomes operative in his favour. If he commits a default in that respect, the decree, dismissing the suit, becomes effective. If either party has gone up in appeal from the decree, then, even if the decree has matured in favour of the other party in the meantime, as a matter of prudence but not of law, that party will forbear from taking out execution of the decree in his favour, as the decree might be varied eventually, by the appellate Court. In practice, therefore, no difficulty is likely to be caused."
13. To hold that if the amount, during the pendency of the appeal, was not deposited, the same became invalid as the suit stood dismissed, cannot be regarded as a valid proposition as an appeal is a continuation of the suit and the appellate Court has power in appeal to extend the time for depositing the pre-emption money in which event the original decree is varied to that extent. In Khurshid Akbar v. Manzlar Ahmad (1982 SCM R 824), this Court observed: "A perusal of the judgments relied upon before us shows that the view expressed in the recent pronouncements of this Court is that the time for payment of the balance pre-emption amount can be extended by the Appellate Court by an interim order passed during the pendency of the appeal or while dismissing it and that even this Court can do so pending the hearing and disposal of a petition for leave to appeal filed before it. In all these cases, however, the rule of 'reasonable time' will apply."
14. The power to extend time is again recognised in the case of Bhai Khan v. Allah Bakhsh (1986 SCM R 849). Therefore, mere non-deposit of the balance of the amount under the decree of the court of first instance before the decision of the appeal could not be regarded as fatal. In this view of the matter, the trial Court fell into an error in holding that the suit stood dismissed by the default in the payment of the balance of the pre-emption money and that the appeal against that decree consequently abated.
15. The learned counsel for the respondent contended that the decree was passed under Order XXIII, Rule 3 of the Code of Civil Procedure on the basis of a compromise which was, in effect, an agreement, and therefore, the consent decree could be avoided on all the grounds available for avoiding a contract under the Contract Act.
16. Having formulated this contention, the learned counsel urged that as the respondent pre-emptor suppressed the fact at the relevant time that he had not deposited the balance amount and an application had been filed to seek extension of time for its deposit, it amounted to fraud as the appellant would not have given his consent to the compromise decree for the reason that the suit stood dismissed for the non-deposit of the balance amount. Accordingly, the consent was vitiated by fraud and the decree was of no effect. There cannot be any cavil with the legal contention raised as "a consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order." Para. 390, Fourth Edition, Halsbury's Laws of England, Volume 37. 'F therefore, fraud was established then the consent judgment obtained by fraud or collusion is a nullity.
17. However, there is no warrant for setting the compromise decree aside as it per se shows that not only the appellant but the Court itself was aware of the non-deposit of the balance amount which is obvious from the following words in the order: "The respondent No. l shall deposit this amount into the learned trial Court on or before 17-1-1968 less already deposited by him."
18. Accordingly, the trial Court fell into an error in not noticing this feature from the order itself. Since the decision of the appeal turns on the second question, it is not necessary to consider the first one.