WALI MUHAMMAD KHAN, J.--Momin Khan plaintiff/respondent No.1 herein, filed a suit for possession through pre-emption of the suit land against Zarin Khan and Manjawar defendants/petitioners herein. The case was referred to Arga and on the basis of their award under PATA Regulation-11 of 1975, decree as prayed, was passed in favour of plaintiff/respondent No.1 against the defendants/petitioners with a direction to deposit the pre-emption money of Rs.00,000 within seven days of the order, failing which the suit shall stand dismissed. The time for the deposit apparently was to expire on 6-9-1980 but since 5th and 6th of September, 1980 happened to be closed holidays, the plaintiff/respondent No.1 (decree-holder) submitted an application on 7-9- 1980 to the Court requesting for permission to deposit the sale consideration, to which he claimed to be entitled on account of the preceding two days being closed holidays. This application was marked by the learned Assistant Commissioner (respondent No.2) to his Reader for necessary action on the same date with his initial. Another application was presented by Muhammad Zarin defendant/petitioner on the same day to the learned Assistant Commissioner praying for the dismissal of the suit of the plaintff/respondent No.1 on account of non-compliance of the order of deposit of pre-emption money within the stipulated period, by the plaintiff/decree-holder entailing the automatic dismissal of the suit. The learned Assistant Commissioner declined the prayer of the defendants/petitioners and allowing the benefit of 5th and 6!h of September, 1980 as closed holidays to the plaintiff-decree-holder, allowed him to make the deposit and in consequence a challan was prepared on the same day by the concerned official of the Court but the amount was not deposited in the Bank the same day but on the following day viz. 8th of September, 1980.
Dissatisfied with the same, the defendants/pcfitioners filed appeal before the learned Additional Commissioner, Malakand Division (respondent No.3) but with no success, as per order of the appellate Court dated 6-7-1981. Their revision petition before the Additional Secretary, Home and Tribal Affairs Department, Government of N.--W.F.P. Peshawar (respondent No.4 herein) also met the same fate vide his order dated 6-7-1.983. All these orders of the hierarchy of special forums were challenged in this Court through Writ Petition No.342 of 1983 but the same was dismissed in limine by a Division Bench of this Court vide order dated 4-12-1983 but at the same time Their Lordships observed that the entire exercise before the lower forums was much ado about nothing because, ' according to them, the Executing Court is the proper forum to determine whether the deposit has been made according to the direction of the Court or not and the consequent interpretation of the decree whether it should be construed for the benefit of the plaintiff or defendant.
2. The plaintiff/respondent No.1 filed application for execution of the decree before respondent No.2 which was marked by him to the Tchsildar concerned for necessary action. This was resisted by the defendants/petitioners through an objection petition on the grounds earlier agitated that the deposit having not been made within the time allowed by the Court, the suit stood dismissed and that there was no executable decree in favour of the plaintiff/respondent No.1 The learned Executing Court (respondent No.2) after hearing the parties and considering the pros and cons of the case, came to the conclusion that the order regarding the deposit of pre-emption money had been duly complied with and ordered the execution of the decree vide his order dated 24-4-1984.
This was appealed against before the Additional Commissioner (respondent No.3), who, vide his order dated 19-12-1985 set aside the order of respondent No.2 and held the decree dated 30-8- 1980 as void and unexecutable. The plaintiff/respondent No.1 not satisfied with the same, filed revision petition before the Additional Secretary Home (respondent No.4) which was accepted vide order dated 29-5-1986 and by setting aside the order of respondent No.3, the order dated 24-4- 1984 passed by EAC-11 (respondent No.2) was restored. Hence the instant Constitutional petition by the defendants/petitioners calling in question the order of the Additional Secretary Home (respondent No.4) dated 29-5-1986.
3. Learned counsel for the defendants/petitioners vehemently argued that the plaintiff/respondent No1 was legally bound to deposit the balance of pre--emption money within seven days of the order and that since he failed to comply with the said direction, his suit for possession through pre- emption stood dismissed with the result that no execution of the decree could be carried out. He also submitted that even if the concession of closed holidays of 5th and 6th of September, 1980 is allowed even then the deposit had to be made on 7-9-1980 but since the deposit was made on 8- 9-1980, therefore, it was not due compliance of the decree of the Court. The learned counsel for the plaintiff/respondent No.!, on the other hand, stressed that the plaintiff/respondent No.1 was legally permitted to deposit the balance of pre-emption money on the day when the Court re-opened after the holidays on. 5th and 6th September, 1980 and that since he submitted an application for deposit to the Court on 7-9-1980, the penal part of the decree could not come into operation and, therefore, the learned Executing Court was justified to proceed with the execution application.
4. We have anxiously considered the arguments of the learned counsel on either side. For the proper understanding of the controversy involved, it is worthwhile to reproduce the relevant provisions of Order 20 Rule 14 of the Civil Procedure Code, prescribing the mode in which the decrees in pre-emption suits are to be drawn and the contents thereof and also the provision of section 4 of the Limitation Act:- "14. Decree in-pre-emotion suit(1) Where the Court decrees a claim to pre-emption 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 defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
LIMITATION ACT.
Section 4. "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court reopens."
5. The above provisions of Order 20 Rule 14 C.P.C. Make it obligatory on the plaintiff/decree holder to pay into the Court the purchase-money remaining unpaid, according to the directions contained in the decree. In the instant case the plaintiff/respondent No.1 could thus make the payment in Court on 6-9-1980 but since 5th and 6th of September, 1980 were admittedly closed holidays, he could do so on 7-9-1980 when the Court reopened in view of section 4 of the Limitation Act. He submitted an application on 7-9-1980 for the deposit of the balance of J sale consideration. The defendants/petitioners were also present in the Court on the same day because they too moved an application to the Court, resisting the deposit, as according to them, it was not within time. The challan prepared by the Court for the deposit of the amount in the Treasury also bears the date 7- 9-1980. It is thus abundantly clear that the plaintiff/respondent No.1 was ready with the money for payment into Court on 7-9-1980 as per direction contained in the decree passed in his favour. The defendant/petitioner Zarin was present in Court and if he had not filed the objection petition referred to above, the amount could be paid to him by the Court inside the Court room on production of proper receipt or could be deposited in the Treasury well in time on the same day under the orders of the Court. Obviously, the determination of the objection raised by the defendant must have consumed sufficient part of the working hours, resulting in the late preparation of the challan by the Court officials and the inability of the plaintiff/dccrce-holder to reach the Treasury/Bank before the closing hours. As stated earlier all that the plaintiff was required to do under the decree was to make payment into the Court which he did and the subsequent proceedings I, regarding the deposit of the amount in the Treasury/Bank being conducted by him was in aid of the Court and was not his individual responsibility under the decree. The non-deposit of the amount on that very day under the circumstances was not the result of any negligence on his part for which he could not be legally deprived of the fruit of valid decree passed in his favour. The direction contained in the decree for the payment of balance of sale consideration had been duly complied with and there was an executable decree for possession through pre--emption of the suit land in favour of the plaintiff/respondent No.1 and the L learned Executing Court was bound to execute it. The impugned order of the learned Additional Secretary Home (respondent No.4) is perfectly legal and does not suffer from any jurisdictional error or mis-reading and coon-reading of evidence.
6. The result is that there is no merit in the instant petition and the same is hereby dismissed with no order to costs.