' Two appellants, namely, Muhammad Shafi and Muhammad Saleem, filed a suit against the respondent, Muhammad Din, for possession of certain land, through pre-emption. Suit was resisted by the respondent, inter alia, on the ground that proper court-fee had not been paid. This plea of the respondent found favour with Malik Akhtar Hassan, Senior Civil Judge, Gujrat, who was seized of the suit. It was otherwise held by the learned Senior Civil Judge that the suit deserved to be decreed. On 23rd Februry, 1966, therefore, he decreed the suit on payment of Rs,12,150 as pre- emption money and also directed the appellants (plaintiffs) to make good the deficiency in court- fee on or before 4th March, 1966, by treating Rs,12,150 as valuation of the suit for the purpose of court-fee failing which "the suit shall stand rejected". It was further required by him that the file shall be placed before him on 4th March, 1966. These directions are contained in paragraph 12 of his judgment which reads as follows:- "The plaintiffs are granted a decree for possession through pre-emption of the land including improvements thereon subject to their depositing Rs,5,000 as price for the site and a further sum of Rs,7,150 as cost of structures etc. Built on it. The total amount being Rs,12,150 shall be deposited by them for vendee in the Court on or before 30-3-1966 failing which the suit shall stand dismissed with costs. The plaintiffs shall have to at the same time make up deficiency in the court-fee on the said sum of Rs,12,150 on or before 4-3-1966 when the file shall be put up before me for the purpose.
Failing to make good the deficiency in court-fee, the suit shall stand rejected. Parties to bear their own costs."
' File was put up before the learned Senior Civil Judge on 4th March, 1966, as directed, when he recorded the following order in the form of a note:- "Today the deficiency in court-fee has been made up by the plaintiffs. Accordingly this note is made on the judgment and decree sheet."
' It is not disputed that the additional court-fee paid by the stipulated date was of Rs,550 although the exact amount of deficiency, as per direction of the learned Senior Civil Judge, was Rs,701.25.
2. The respondent (defendant) went in appeal against the judgment and decree passed by the learned Senior Civil Judge. One of his grounds of appeal was that the deficiency in court-fee had not been made good in compliance with the direction of the learned trial Court. During the pendency of the appeal, the appellants (plaintiffs), who were respondents in that appeal, made an application, dated 14th June 1966, for permission to make good the deficiency in court-fee stating that the same could not be done by them earlier due to some mistake in law-book consulted by the Clerk of their counsel while working out the amount of deficiency. No order had been passed on their application, when the appeal was withdrawn on 20th June, 1966 and thus the judgment and decree of the learned trial Court attained finality.
3. Appellants (decree-holders) then made an application for execution of the decree and in pursuance thereof constructive possession of the disputed land was handed over to them on 30th March, 1966.
4. Afterwards, an application was filed on 15th April, 1966 by the respondent (judgment-debtor) objecting to the execution of the decree. It was urged by him that since proper court-fee had not been paid, the suit shall be deemed to have been dismissed. In addition, it was maintained by him that the decree as well as the application for execution thereof were void and of no legal effect.
Jurisdiction of the Court executing the decree was also questioned. As this application was contested by the appellants (decree-holders), issues were framed and parties' evidence was also recorded. By order, dated the 25th April, 1967, the learned executing Court, presided over by Qazi Muhammad Dastgir, who was then serving as Senior Civil Judge, Gujrat, dismissed the application of the respondent holding that the decree had been "correctly executed, treating the court-fee question as redundant". After recording this finding, the learned executing Court dismissed the respondent's application but directed the appellants (plaintiffs) to make good the deficiency in court-fee by 26th April, 1967. Accordingly, another sum of Rs,151.25 was deposited by them. Feeling aggrieved by the dismissal of his application, the respondent (judgment-debtor) filed an appeal which was accepted by the Additional District Judge, Gujrat. It was held by the learned Additional District Judge that since the appellants (plaintiffs) did not make up the deficiency in court-fee within the stipulated period, their suit stood dismissed in terms of the judgment and decree passed by the learned trial Court. It was also held by him that the execution proceedings were without jurisdiction. This appeal is directed against the above order of the learned Additional District Judge.
5. During the pendency of the present appeal, the respondent (judgment-debtor), Muhammad Din, died whereupon his legal representatives, Sardaran Bibi and others, were brought on the record.
6. It was contended by learned counsel for the appellants that the learned executing Court could not go behind the decree which had attained finality due to the withdrawal of the appeal by the respondent. It was also added by him that, rightly or wrongly, a note was recorded by the learned trial Court that deficiency in court-fee had been made good and it was not within the jurisdiction of the learned executing Court to say otherwise muchless to call upon the appellants to pay additional court-fee. According to him the matter had been finalised with the delivery of the constructive possession to the appellants and there was no occasion to re-open it on the belated application of the judgment-debtor. Referring to the existing case-law on the subject, it was urged by learned counsel for the appellants that no plaint can be rejected for non-payment of deficient court-fee unless the exact amount of deficiency is notified to the plaintiffs and reasonable opportunity is afforded to him to make good the deficiency. Argument proceeds that since no such direction was given to the appellants till he himself made good the deficiency in court-fee as aforesaid he could not be non-suited for non-payment of proper court-fee. In this connection, reliance was placed by him on Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 Supreme Court 289 and Ilam Din v. Abdul Majid and 2 others 1986 SCM R 1439.
7. The law is well-settled on the point that executing Court cannot go behind the decree. Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another 1972 SCM R 237 is one of the several authorities in point. It was not, therefore, within the domain of the learned executing Court to determine question relating to subsistence of the decree in dispute. In view of the direction given by the learned trial Court with regard to the making good of the deficiency in court-fee it was either for the learned trial Court or for the Court of the learned Additional District Judge, before whom appeal against the said judgment and decree was taken, to decide the question, one way or the other. As mentioned earlier, it was noted by the learned trial Court that deficiency in court-fee had been made good as directed by it. Thus, according to the learned trial Court the judgment and decree passed by it continued to hold the field and could also be executed if not set aside by a higher forum. As indicated above, judgment and decree passed by the learned trial Court were not set aside by the learned Court before which appeal was filed in this regard because the appeal was withdrawn by the respondent. Thus, the judgment and decree passed by the learned trial Court attained finality. It could not, therefore, be taken exception to by any other Court in the District muchless the executing Court. As stated above, learned executing Court could not go behind the decree and was obliged to execute it. It was, therefore, not within its jurisdiction to say that the decree sought to be executed had disappeared due to non-payment of additional court- fee in pursuance of direction of the learned trial Court, nor the learned executing Court could pass any order for making good the deficiency in court-fee. The learned Additional District Judge, who heard appeal against the order passed by the learned executing Court with regard to the deposit of additional court-fee, was also acting as a higher forum on the execution side and as such his position was no better than that of the learned Civil Judge who executed the decree. In other words, the learned Additional District Judge, who passed the impugned order, had the same limitations as the learned Senior Civil Judge (Qazi Muhammad Dastgir) who dismissed the respondents application as an executing Court. Learned Additional District Judge, could not, therefore, hold that the judgment and decree passed by the learned trial Court were not available to the appellants, after the running out of the period fixed by the learned trial Court for making good the deficiency in court-fee, because the entire deficiency was not made good by them within that period. As stated above, this could be said by the learned trial Court or by the learned.
Additional District Judge before whom appeal against the judgment and decree passed by the learned trial Court was preferred, but this was not done by either of these two learned Courts.
Impugned order passed by the learned Additional District Judge, while deciding appeal against B the order made by the learned executing Court, is, therefore, without jurisdiction and as such deserves to be set aside.
8. Assuming, without conceding, that the learned Courts dealing with execution matter had the jurisdiction to look into the question of subsistence of the decree, in the light of the direction of the learned Senior Civil Judge, in respect of making good of the deficiency in court-fee, it would not be possible to uphold the view taken by the learned Additional District Judge who made the order under challenge. As ruled in the case of Ilam Din cited by learned counsel for the appellants, a plaint cannot be rejected for not making up the deficiency in court-fee unless exact amount of deficiency is worked out and intimated to the plaintiff by the Court and a reasonable opportunity is also given to him to deposit such amount of deficiency. In the instant case, although the learned Senior Civil Judge, while passing judgment and decree in favour of the appellants, did direct them to make good the deficiency in court-fee, by treating Rs,12,150 as valuation of the suit for the purpose of court-fee, yet he did not work out and notify to the appellants the precise amount of deficiency in court-fee. Thus, his direction regarding payment of additional court-fee fell short of the requirement of law, as laid down in the ease of Ilam Din. In this view of the matter, non- compliance with his direction in this regard could not be visited with the penalty of rejection of plaint muchiess of the dismissal of the suit.
9. Looked from any angle, order under appeal passed by the learned Additional District Judge, is not sustainable. I, therefore, accept this appeal and set aside the said order, leaving the parties to bear their own costs.