' One Salim Khan etc. Obtained a decree for pre-emption against Haji Abdul Sattar on 28-5-1980 on payment of Rs,2,568 from the Civil Court, Karak which was maintained before the District Judge with the modification that the pre-emption money was enhanced to Rs,4,462 and as he had already deposited Rs,3,000, therefore, the remaining sum of Rs,1,462 was directed to be deposited within one month which the pre-emptor did deposit on 5-4-1981, the judgment being announced on 7-3-1981. The possession of the suit property was also obtained by the pre-emptor through execution.But an interesting thing had occurred on 7-10-1981 when the pre-emptor withdrew a sum of Rs,432 from pre-emption money.
2. Three years later, on 4-1-1984 the vendee Abdul Sattar brought a declaratory suit that the action of the pre-emptor being violative of section 23(5)(a) of N.-W.F.P. Pre-emption Act, 1950, he had lost his preemption decree and thus title in the suit land. Such claim was decreed by the Civil Judge on 9-12-1987 but the learned District Judge in his order in appeal dated 11-2-1989 did not agree to such interpretation of the section and dismissed the suit of Haji Abdul Sattar Khan vendee. This is a revision petition against such order of the District Judge.
3. The learned counsel for the petitioner referred me to "Rahmat Khan and others v. Nawab Khan (AIR 1925 Lahore 91)" but in there it was a case of short deposit of pre-emption money which being short from the very date of deposit, it was rightly considered that the same was violative of the legal provisions concerned. On the other hand the instant one is a case of full deposit before the trial Court as well as before the Appellate Court and the amount had been withdrawn only when the matter stood decided before both the Courts and also when the judgment had become final.
4. The principle involved in the instant case is amicably discussed in AIR 1924 Lahore 68, AIR 1935 Peshawar 143 and AIR 1939 Nagpur 279. After perusing the case-law I take the view that the deposit is asked for only to check the mala fides of the pre-emptor and also that the costs may be recovered therefrom. In the instant case the amount was rightly deposited with the Trial Court as well as with the first Appellate Court and remained deposited till the time the decree was satisfied.
As no suit or appeal was pending at the time of withdrawal and as even the title had stood vested in the pre-emptor, therefore, the punishment provided under section 23(5)(a) of the Act cannot be imposed upon the pre-emptor, as his amount remained throughout deposited in Court till even the satisfaction of the decree.
5. May be the pre-emptor withdrew the amount under some misunderstanding, may be it was mala fide and may be it was with the intention to commit fraud but it was a simply the price of land deposited in Court which could be recovered by way of a money suit in addition to the damages for the trouble caused. In any case, after when the title of the suit land got vested in the pre-emptor and the decree got satisfied, the status cannot be relegated to a stage where the pre- emption suit may be dismissed under section 23(5)(a) of the Act.
6. It is all the more logical when one looks at the real purpose of section 23(5)(a) of the Act and which stands achieved through obtaining such deposit beforehand and which remains with the Court till the final decision of the case. I hold that after when the decree becomes final, the amount deposited does not remain strictly to be a pre-emption money but becomes the price of land which one way or the other happens to be partially withdrawn. The better to resolve the problem is to bring a money suit to recover the amount. In the instant case this too would not be necessary because the amount stands deposited already.
7. Through the impugned order the learned District Judge had come to the correct conclusion. The revision petition is hereby dismissed.