In this Constitutional petition, order dated 20-1-1992 passed by the learned Additional District Judge, Lahore through which revision petition filed by the petitioner against order dated 13-5-1991 passed by the learned trial Court for acceptance of objection petition filed by respondent No.l against execution of decree in favour of the petitioner for possession of land through pre-emption, was dismissed has been challenged.
2. On 18-9-1976 an ex parte decree was passed in favour of the petitioner in suit filed by him for possession of land in dispute through pre-emption. The petitioner was directed to deposit the sale price of Rs.8,000.00 in favour of the judgment-debtor/vendee till 18-10-1976. It was directed that if the said amount was not deposited within the time specified the suit shall stand dismissed. The petitioner admittedly deposited an amount of Rs.8,000.00 through bank challan within the time granted by the learned trial Court. However, while mentioning the name of vendee in whose favour the same was deposited he also mentioned the name of vendor in the relevant column in addition thereto. An execution application was made by the petitioner for execution of the said decree in which an objection petition was filed by respondent No.l that the sale price having been deposited in favour of both the vendee and the vendor therefore direction as contained in the decree would be deemed to have not been complied with and the suit as per its terms stood dismissed as such there was no decree in existence which could be executed. This objection petition was accepted by the learned Executing Court through order dated 13-5-1991 and the execution petition filed by the petitioner was dismissed.
3. The petitioner filed revision petition before the learned lower appellate Court which has been rejected through the impugned order dated 20-1-1992.
4. I have heard the petitioner who is present in person and learned counsel for the respondent No.l.
When questioned learned counsel for the respondent No.l frankly admitted that the amount of Rs.8,000.00 deposited by the petitioner before the learned trial Court was not withdrawn by the vendor whose name was also mentioned in the bank challan alongwith the vendee/respondent in whose favour the same was directed to be deposited. He admitted that no application was made by the respondent for the withdrawal of the said amount or that the respondent was not allowed to withdraw the same because of the mention of the name of vendor also alongwith the name of vendee in the bank challan. The two courts below have proceeded on the assumption that the direction as given by the learned trial Court while passing the decree for deposit of consideration of Rs.8,000.00 in favour of the judgment-debtor/vendee has not been complied with as in the bank challan alongwith the name of vendee the name of vendor had also been mentioned therefore, the deposit would be deemed to have been made not in favour of the vendee alone. I am afraid the two Courts below have proceeded on mere technicalities and altogether ignored that the vendor never approached the Court claiming that in the said amount he had also share. The amount deposited by petitioner No.l was in fact intended to be deposited in favour of the vendee and in fact the same shall be deemed to have been deposited in his favour alone and if the name of vendor had also been entered in the bank challan it was due to an inadvertance/oversight or mistake which should have been ignored and as the respondent was not prejudiced inasmuch as the Court could pass an order for withdrawal of the said amount by him alone, even if vendor had claimed the said amount or any part thereof. Had the vendee made an application for withdrawal of the said amount and the vendor raised an objection the matter would have been different. The addition of the name of vendor, in my opinion, in the bank challan does not detract from the validity of deposit in favour of the vendee and the compliance of the direction as given in the decree had been substantially made and decree was intact and should have A been executed.
5. The impugned orders passed by both the Courts below suffer from illegality and jurisdictional defect, as a result of erroneous view taken by them they have failed to exercise jurisdiction vested in them under the law to execute the decree in favour of respondent No.l.
6. This writ petition is accepted. The order dated 20-1-1992 passed by the learned Addl. District Judge, Lahore and order dated 13-5-1991 passed by the learned trial Court are hereby declared to be without lawful authority and of no legal effect and quashed The learned Executing Court shall proceed with the execution petition filed by the petitioner in accordance with law. An amount of Rs.8,000.00 which stands deposited shall be paid to respondent No.l. The parties are left to bear their own costs.