1. ' BASHARAT AHMAD SHAIKH, J.---Khalil-ur-Rehman, the respondent before us, was the plaintiff in a pre-emption suit which was decreed on 28-12-1983. In accordance with the orders of the Court he deposited the purchase-money on 27-2-1984. The decree passed in favour of Khalil-urRehman was unsuccessfully challenged successively before the District Judge, High Court as well as this Court. The decree passed in his favour was intact when on 26-5-1988 the plaintiff withdrew the purchase-amount from the Court without seeking formal permission. On 23-1-1989 the present appellant Rehmatullah, vendee in the case, moved an application before the learned Sub-Judge that since the plaintiff had withdrawn the purchase-amount the decree passed in the case had become unenforceable. He requested that the decree may be cancelled. The learned Sub-Judge accepted the application on 6th of August 1989 and cancelled the decree after hearing both the parties. Khalil-urRehman appealed against that order to the learned District Judge who dismissed the appeal. However, a learned single Judge of the High Court has accepted the appeal filed by him and has ordered that the decree in favour of Khalil-ur-Rehman shall remain operative and he shall deposit the decretal amount within sixty days from the date of the judgment which was pronounced on 3-11-1991, failing which' the decree shall stand cancelled. Hence this appeal by leave of the Court.
2. ' Plaintiff-respondent Khalil-ur-Rehman has not put in appearance. Consequently, we have only heard Mr. Riaz Alam, Advocate, in support of the appeal. He vehemently contends that the view taken by the learned counsel in the High Court is not sustainable. He further contends that this view is not fortified by any precedent case. Mr. Riaz Alam relies on Fazal Hussain v. Musharaf Sultana 1991 SCMR 487 and Ismail and others v. Muhammad Aslam and others (PLD 1980 Lah. 104). So far as Fazal Hussain's case is concerned it is only an order by which leave was granted by the Supreme Court of Pakistan. However, the case from the Lahore jurisdiction fully supports the contention of the appellant's counsel. In that judgment it has been laid down by a learned Judge of the Lahore High Court? That if pre-emption money is withdrawn by pre-emptor without leave of the Court his suit or appeal is liable to be dismissed. Among the cases followed by the learned Judge is the case of Abdul Ghafoor and another v. Mst. Iqbal Begum and another (PLD 1975 Lah. 524).
3. ' In the judgment under appeal, the learned Judge adopted the reasoning that Khalil-ur-Rehman, plaintiff, had successfully protected his decree throughout and was still protecting it. He had never been ordered by any appellate Court to file security and none of the Courts had burdened him with costs for which security is required under law. He, therefore, concluded that clause (a) of section 21
(5) of the Jammu and Kashmir Right of Prior Purchase Act does not apply in this case. Clause (a) which has been found inapplicable by the learned Judge is to the following effect:- "(a) If the plaintiff withdraws any amount deposited in the aforesaid manner his suit or appeal shall be dismissed."
4. We agree that the aforementioned provision is applicable to security or deposit which is required for the discharge of costs. In fact the whole of Section 21 mentioned above deals with costs while the present case relates to purchase-money.
5. ' Then the learned Judge analysed Order XX, rule 14 of the C.P.C. Which deals with deposit of purchase-money by the pre-emptor and made the following observations while reaching the conclusion that the decree remained unaffected by withdrawal of the purchase-money:-
(a) The trial Court had no authority to allow the decree-holder to withdraw the amount;
(b) the title in the suit land had passed on to the plaintiff decree-holder and the
(c) amount remained in trust for the judgment-debtor and the Court could not order for the payment of that amount to the preemptor; (c) there is no provision containing a penalty for withdrawal of the decretal amount as it could never be visualised that fault of paying the decretal amount can ever be committed by the Court; and
(d) the plaintiff cannot be deprived of the decree for fault of the Court.
6. After examining the relevant provisions and the reasoning contained in the judgment under appeal we are disposed to hold that the learned Judge fell in error in coming to the conclusion as recorded by him. When under Order XX, rule 14 the Court directs the plaintiff to deposit the purchase-money together with costs the manifest intention of the law is that the amount shall not be withdrawn. According to this provision if purchase-mony is not paid in the Court the suit has to be dismissed. We cannot see any distinction between the situation in which a person does not deposit the purchase-money and a situation in which a person after having deposited the aforesaid money withdraws it. The purpose of deposit of the aforesaid amount clearly is that this amount will be paid to the unsuccessful vendee and not that it should be repaid to or withdrawn by the plaintiff himself. The reasoning adopted by the learned Judge that there is no penal provision cannot be upheld because a penalty is already provided in shape of the provision that if purchase-money is not paid the suit shall stand dismissed. We are equally convinced that the observation of the learned Judge that there was fault on the part of the Court is also unsustainable.
7. The amount was withdrawn without formal permission of the Court and to blame the Court in the circumstances appears to us to be somewhat far-fetched.
8. ' We may point out that the learned Judge did not cite any case in support of the view he took in the case. However, he relied upon some cases which related to the view that clause (a) of section 21 (5) is not attracted to the present case. We have already observed that we also subscribe to that view. However, as already mentioned, the Lahore High Court has expressed the correct view in Abdul Ghafoor's case.
9. ' It is stated by Mr. Riaz Alam that Khalil-ur-Rehman has not deposited the pre-emption amount within sixty days from the date of the judgment of the High Court and thus the decree once again stands cancelled in pursuance of the order made by the High Court. In absence of a documentary proof it is not right for us to pass an order in this respect. Even otherwise, if the amount has not been deposited the decree which was revived by the High Court shall stand cancelled by virtue of the specific order passed by the High Court. The/learned counsel for the appellant also contended that the appeal filed by re3pondent Khalil-ur-Rehman was liable to be dismissed for his failure to implead a necessary party. Since we are, in any case, setting aside the order of the High Court we need not decide this point.
10. ' As a result of the foregoing we conclude that the judgment of the High Court is liable to be vacated and it is ordered accordingly. Since the respondent has not appeared there would be no order as to costs.