' The brief facts giving rise to this revision are that the petitioner filed a suit on 4-11-1981 in the Court of the Civil Judge, Mianwali, to pre-empt the land measuring about 938 Kanals, 5 Marlas situated in Mauza Cheena Bora, Tehsil Eisa Khel, District Mianwali. The superior right of pre-emption was claimed on the ground of collateralship.
2. The parties arrived at a compromise in the trial Court, whereupon, consent decree dated 11-4- 1982 was passed in favour of the petitioner. The trial Court directed the petitioner to pay a sum of Rs,30,196 including Zar-e-Punjam till 18-4-1982 failing which the suit was to stand dismissed. The petitioner failed to deposit the amount by the target date whereupon his suit stood dismissed.
3. The petitioner did not file any application before the trial Court for extension of time. Instead, he initiated execution proceedings on 22-4-1982 whereupon a report was called from the office regarding the deposit of decretal amount. The office reported that the petitioner had failed to deposit the requisite amount. Resultantly the execution petition was also dismissed on 24-4-1982.
The petitioner filed an appeal which was dismissed by the learned Additional District Judge, vide his judgment and decree dated 20-5-1982.
4. The petitioner's learned counsel submits that the petitioner had made payment of the remaining decretal amount to the respondents/vendees out of Court vide the receipt dated 14-4-1982. He further submits that there was no clear direction that the amount had to be deposited in the Court.
Therefore, the petitioner was misled and should not be allowed to suffer due to Pact of the Court.
He adds that the respondents filed an application in the trial Court on 18-4-1982 for withdrawal of 1/5th amount which fairly showed that the respondents had received the balance amount and was interested to receive the 1/5th amount already deposited by the petitioner. He further submits that the matter was decided by way of a compromise whereby the petitioner/pre-emptor allowed a big chunk of land to remain with the vendees and despite payment of the entire decretal amount has not been able to get possession of the land till today. The respondents have thus derived additional benefits by using the land which they were not entitled to retain. Hence the petitioner should not be allowed to suffer due to technicalities alone. According to him the rule laid down by the superior Courts that the payment out of Court shall be of no avail to the preemptor is applicable in cases where an order for deposit of the amount in Court was clearly made.
5. On the other hand, the respondents' learned counsel strenuously urged that the receipt dated 14-4-1982 was fake and did not bear the thumb-impressions of the respondents. He also urged that the respondents never filed an application for withdrawal of 1/5th pre-emption money. He further urged that the word "deposit" clearly signified deposit in Court under the provisions of Order XX, rule 14 of the C.P.C. The petitioner could be under no illusion because he had the advice of counsel and had earlier deposited 1/5th amount in the Court. He next submits that in the present case, the provisions of Order XX, Rule 14 of the C.P.C. And not of those of Order XXI, Rules 1 and 2 of the C.P.C. Were applicable. In support of his contentions, he relies on the cases reported as Noor Ahmad and another v. Muhammad Ramzan and another (PLD 1973 BJ 42), Ghulam Mohyuddin v.
Muhammad Bakhsh and another (PLD 1979 Lah. 766) and Muhammad Rafiq v. Barkat Ali and others (1984 CLC 3049).
6. I am afraid, there is no substance in the contention raised by the petitioner's learned counsel. The receipt dated 14-4-1982 was not produced either before the executing Court or the appellate Court.
On the request of the learned counsel, I summoned the respondents to verify the factum of payment to them. Allah Diwaya respondent No,1, Ghulam Muhammad respondent No,2, Din Muhammad respondent No,3, Faiz Muhammad respondent No,4 and Suleman respondent No,9 appeared in the Court today and firmly denied the receipt of the decretal amount as well as their alleged thumb-impressions on thereceipt dated 14-4-1983. Since the receipt was neither produced before the executing Court nor before the appellate Court and its correctness, no reliance can be placed on the same. Even otherwise, the petitioner was clearly directed to "deposit" the amount and not simply to pay it to the vendees. They could be under no illusion as to whether decretal amount was to be deposited because they were represented by an Advocate and had earlier deposited the 1/5th pre-emption money in the Court. Moreover, neither in the memorandum of appeal before the appellate Court nor in the revision petition, it has been urged that the petitioner was misled due to any ambiguity in the order. Therefore, the alleged payment of the decretal amount made out of Court did not satisfy the condition imposed by the Court regarding deposit of the pre-emption money. In Noor Ahmad's case, it was held that money paid out of Court could not be said to be in strict compliance of the terms of the decree but if payment was certified by the Court then it could be considered as sufficient compliance of the decree. In Muhammad Rafiq's case, the Hon'ble Supreme Court did not consider payment out of Court to be lawful compliance of the decree despite certificate issued by the Court. The view taken by the Division Bench in Ghulam Mohyuddin's case was upheld/Thus, it is fully established that where the Court has directed the pre-emptor to deposit the amount, he has no option but to deposit the amount in the Court and cannot rely on payment out of Court, moreso, when payment out of Court is denied by the judgment-debtor. The argument that the respondents had filed an application for withdrawal of 1/5th amount is also of no avail to the petitioner because the respondents had also denied having filed any such application.
7. For the foregoing discussion, I do not find any merit in this revision petition which is dismissed, leaving the parties to bear their own costs.