' District Judge Kotli vide his order and decree, dated 15-9-1990 has refused to interfere in the order and decree passed by Sub-Judge Sensa on 6-8-1989, hence this appeal.
2 The facts briefly stated are that a decree of pre-emption was passed in favour of appellant by Sub-Judge Sensa on 29-12-1983 which stood confirmed upto Supreme Court as stated by the pa ties at Bar, however, copies of judgments of Supreme Court and High Court are not available in record. The attorney of the appellant, through an application, withdrew the decretal amount from the Court of Sub-Judge Sensa, on 26-5-1988. An application was moved by Rchmatullah respondent before Sub-Judge Sensa on 23-1-1989, whereby the decree in favour of appellant was requested to be cancelled for the reason of his withdrawal of decretal amount from the trial Court.
The learned Sub-Judge ordered the cancellation of decree on 6-8-1989 on the ground of withdrawal of decretal amount from the Court. An entry to that affect was made in the decree sheet. This order was challenged by appellant before District Judge Kotli who was also pleased to maintain the order of Sub-Judge Sensa by rejecting his appeal on 15-9-1990.
3. I have heard the learned counsel for the parties and have gone through the record. It may be mentioned at the very outset that the learned counsel for the parties have not diligently cared to place the relevant record on the file of the Court. The judgments of High Court and Supreme Court, the application of the attorney of appellant whereby decretal amount is withdrawn and the power of attorney allegedly executed by the appellant, have not been placed on record. The Court expresses its concern over this inadvertence.
4. The upholding of the pre-emption decree in favour of appellant upto the highest Court is not denied by the parties and it is also admitted that the learned Sub-Judge was not seized with the matter at the time when he ordered withdrawal of amount in favour of pre-emptor's attorney. This aspect of the case has to be kept in view, while considering the arguments of the parties. The decree in favour of. Appellant had become final on 27-2-1984, when the appellant had deposited the pre-emption money in the trial Court in compliance with the terms of decree, while last date for depositing the amount was 29-2-1984. The learned counsel for the appellant arguing his case submitted that while ordering cancellation of decree, the learned Sub-Judge Sensa did not give any opportunity of filing the objections to the appellant. He further contended that the withdrawal of decretal amount by the pre-emptor does not operate as cancellation of decree or dismissal of suit. The learned counsel relied upon PLD 1980 Pesh. 262 and PLD 1975 Lah.
524. The learned counsel for the respondent on the other-hand referred to section 21(5) (a) of Right of Prior Purchase Act, which ordains dismissal of suit or appeal, if the amount is withdrawn by the plaintiff or appellant as the case may be. Reliance is placed on PLD 1980 Lah. 104 and 1991 SCMR 487.
5. I have duly considered the arguments of the learned counsel for the parties and gone through the record of the case and reports of the case-law cited. The argument of the learned counsel for the appellant that appellant was not given a chance by Sub-Judge Sensa to file objections or explain his position is belied by record. The contents of the impugned order of Sub-Judge Sensa and order sheet maintained by learned Sub-Judge leave no doubt that appellant was summoned and heard and the order was passed in his presence alongwith his counsel. However, express order to that extent is not passed, which hardly prejudices the appellant in view of his presence. As far as the other legal point that withdrawal of the decretal amount does not entail cancellation of a decree is concerned, it shall be considered alongwith the arguments of the other side, which are contrary to appellant's assertion.
6. The provision of law which governs the matter, finds place in section 21(5)(a) of the Right of Prior Purchase Act, 1993 BK. For having a true perception underlying the provision, whole of the section has to be read together, which deals with the amount of security and reads as: "21 Plaintiff may be called upon to make deposit or file security:
(1) In every such suit the Court shall at, or at any time before, the time of settlement of issues, require the plaintiff to deposit in the Court such sum as is in the opinion of the Court equal to one- fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order;
(2) In the case of an appeal, the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1);
(3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs;
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be; (5)(a) If the plaintiff withdraws any amount deposited in the aforesaid manner his suit or appeal shall be dismissed;
(b) If any security furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed."
' The above provision of law stems out two very important points relevant at the moment, i.e,
(a) It relates to the security to be furnished by the pre-emptor for discharge of costs; and
(b) It operates either at pre-decretal stage, or, when the matter is taken in appeal by the plaintiff- pre-emptor.
7. The case in hand is that pre-emptor has successfully obtained the decree from the trial Court and has been able to sustain it throughout. The amount deposited by him in terms of decree remained with the Court throughout, though under law, the security was required to be with the Court during the suit proceedings only, not during the series of appeals that too, not filed by the pre-emptor-plaintiff. Security during the period of appeal is required in case the appeal is filed by the plaintiff-pre-emptor, and that too, if ordered by the appellate Court (in case he is unsuccessful in obtaining the decree from the trial Court). In the instant case, the appeal was filed by the vendee, not by the plaintiff-pre-emptor. The purpose of the security is only to guarantee or secure the payment of costs of the other side and to avoid fictitious and vexatious pre-emption claims.
The case in hand is altogether different. The appellant in this case has successfully protected decree in his favour throughout and is still pursuing it. He has never been ordered by any appellate Court to file the security or to keep the security already deposited, with the Court. Moreover, none of the Courts has burdened him with the costs, for which security is required under law. Hence the penal provisions of section 21(5) (a) do not apply in this case. I'm supported in holding this view by AIR 1924 Lah. 68, which has almost identical facts, except that the amount in the case was withdrawn with the permission of the Court which was seized with the appeal. An objection was taken to the decree in favour of the pre-emptor decree-holder on the ground that the withdrawal of sum entails the dismissal of the pre-emptor's claim under provisions of clause (a) of subsection
(5) of section 22 of the Pre-emption Act, 1913 (which is identical to section 21 in the case in hand). It was held that: "We are satisfied, however, that the objection must be repelled. In the first place the pre-emptors are not the appellants in the case. In the second place the word 'so' in the clause cannot be ignored. The word refers to the preceding section and in the case of an appeal obviously relates to action taken by an appellate Court under subsection (2). In the present case there is no order by this Court under that subsection. In the third place it is clear that the object of an order under section 22(1) is to guarantee vendees against frivolous proceedings on the part of possible pre- emptors. The deposit is a token of good faith and once the pre-emptor has obtained a decree, the need for a deposit no longer exists so far as the trial Court is concerned. No doubt such deposits are available for the discharge of costs (Section 22 (3)) but such satisfaction is not the raison d'etre of the deposit and there is nothing to suggest that a vendee appellant is entitled to any advantage of the kind. We have no hesitation therefore, in holding that section 22(5) (a) does not apply to the present appeal."
' The view quoted above is followed in PLD 1975 Lah. 524 and it is held that: "Moreover, the observations are applicable only when the plaintiff-pre-emptor is the appellant and he withdraws the money. In such an event, the suit or the appeal, as the case may be, has to be dismissed under the said clause, but if the plaintiff who is the successful preemptor is a respondent in an appeal the question of ,dismissal of the appeal does not arise. If there had been any intention on the part of the Legislature to make the withdrawal of the pre-emption money on the part of the respondent-pre-emptor militate against him, it could do so by providing in subsection (5) (a) of section 22 that "if any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed, and if he is a respondent in an appeal, the appeal shall be accepted". Therefore, in the absence of any provision to that effect, it cannot be said that if the plaintiff-respondent withdraws the amount, the appeal should he accepted."
' I further find support from PLD 1980 Peshawar 262 referred to by the learned counsel for the appellant. It is held that: "In this case the order of deposit had been made by the trial Court and if the pre-emption amount had been withdrawn during the pendency of the suit only then the provision of subsection (5) (a) to section 23 could have been pressed into service. From the plain reading of the above subsection, the conclusion that can be drawn is that the penal operation of subsection (5)(a) to section 23 is only attracted when the plaintiff-pre-emptor withdraws that amount during the pendency of his suit or appeal, as the case may be which he had deposited under subsection (1) of subsection (2) to section 23 and unless in a case such a situation is available this provision will not be applicable. In this case fortunately the plaintiff-pre-emptor had withdrawn the pre-emption #TBS [Vol. X #TBE money when his appeal was pending in the High Court and since there was no order by this Court for the deposit of the pre-emption amount no violation of the order of the High Court has taken place, therefore, the penal provision of subsection (5)(a) ibid is not attracted to this case. Furthermore, it appears that the attention of the learned Judge in Chambers was not invited to the principles underlying the deposit of the pre-emption money. This deposit is secured only for the discharge of costs (subsection (3) to section 23) and to protect the vendees from frivolous litigations."
8. The cases referred to by the learned counsel for the respondent are distinguishable and are not applicable in the case before the Court.
9. Section 21 of the Right of Prior Purchase Act, deals with the amount of security for discharge of costs, while mode of payment of decretal amount, its deposit and the consequences of its non- compliance are regulated by Order 20, Rule 14, C.P.C. Relevant for the purpose is reproduced as: "14(1) Decree in pre-emption suit. Where the Court decrees a claim to preemption 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."
The last date, as mentioned somewhere above, for deposit of decretal amount by the pre-emptor was 29th February, 1984, who in compliance with the decree deposited the amount on 27th February, 1984, when it was rightly recorded in the decree sheet by the Sub-Judge that "Decree in favour of plaintiff-(Preemptor) and against the defendant-(Vendee) becomes final". The trial Court after declaring the decree to have become final, became functus officio. The Court had no authority to allow the appellant (Decree-Holder) or his attorney (whose power of attorney is also not produced before the Court) to withdraw the amount. Moreover, the decree of the trial Court had merged into the decree of appellate Courts. The title in the suit land had passed to the plaintiff decree-holder in terms of Order 20, Rule 14(1)(b), C.P.C. And title to the decretal amount reciprocally passed to the Judgment-Debtor-Vendee, on the finality of decree. The amount remains in trust for the Judgment-Debtor when decree in the pre-emption suit becomes final. The Court could not order payment of amount in favour of pre-emptor or his attorney as it stood decreed in favour of the Judgment-Debtor in lieu of the suit land. That is why there is no legal provision containing a penalty for withdrawal of decretal amount, as it could never be visualized that fault of paying the decretal amount (after finality of decree) can ever be committed by a Court. In the absence of a penal provision, the pre-emptor-Decree-Holder cannot be deprived of the fruits of its legal victory, for fault of the Court. This round of litigation has started simply due to overstepping of its powers by the Sub-Judge by passing the void order and it cannot prejudice the successful pre-emptor-Decree-Holder.
10. As a result, the appeal is accepted, the orders and decree under appeal are set aside and in exercise of power vested in the Court under section 46 of the Interim Constitution Act, 1974, section 35 of the Courts and Laws Code Act and section 151, C.P.C., it is ordered that the decree passed in favour of appellant dated 29-12-1983, shall remain operative and the appellant shall deposit the decretal amount within sixty (60) days from the date of this judgment, in the trial Court, failing which the decree shall stand cancelled. In the circumstances of the case, no order as to costs. #EndJudgment