' MUNIR A. SHEIKH, J.---Through this petition, leave to appeal has been sought against the judgment, dated 8th April, 1996 of the Lahore High Court passed in Civil Revision No,2281/1994 filed by the petitioner against the order passed by the Court below rejecting her application made under section 144, C.P.C.
2. The facts forming the background of this case shortly stated are that respondent filed a suit for specific performance of agreement of sale, dated 6th January, 1973 of the property in dispute. The trial Court decreed the said suit through judgment dated 1st March, 1978. It was held that the sale price was Rs,88,047.90 and the respondent was directed to deposit the remaining amount after deducting an amount of Rs,55,000, found to have been paid by him as earnest money. It was directed that after the deposit of the said amount, the present petitioner should execute the sale deed within a reasonable time failing which the Reader of the Court would get the deed registered by Sub-Registrar under the order of the Court. The respondent/plaintiff was awarded an amount of Rs,15,624 as costs.
3. The respondent/plaintiff deposited the balance amount on 7th March, 1978. On the deposit of the said amount, the Court of first instance which passed the decree as Executing Court got the sale deed executed in favour of the respondent on 9th May, 1978 which was registered on 'the same day i.e, 9th May, 1978. The respondent/plaintiff made an application to the Court permitting him to withdraw an amount of Rs,15,624 awarded to him as costs from the said amount of Rs,88,047.90 already deposited by him in compliance with the decree which was allowed and the said amount was withdrawn by him.
4. The said judgment and decree was challenged by the petitioner in the High Court through R.F.A.
No,150 of 1978 which was partly allowed by the High Court through judgment, dated 6th August, 1988 only to the extent of sale price which was fixed by the said Court at Rs,1,16,497.90 and the decree of the trial Court was ordered to be modified to that extent only. It was directed that the payment of the said amount of Rs,1,16,497.90 shall be made within six months after adjustment of Rs,88,047.90 already deposited by him. It may be significantly noted here that no direction was made as to the consequence to ensue on the failure of the respondent/decree-holder to deposit the balance amount within the stipulated time as nothing was said that in that case the suit shall be dismissed or would stand dismissed.
5. The respondent deposited an amount of Rs,28,450 in order to complete the shortfall of the said amount of consideration. While considering what was the amounts of shortfall, the respondent/decreed-holder it appeared adjusted the said amount of Rs,15,624 already withdrawn by him by the trial Court against the total sale price of Rs,1,16,497.90 as determined by the High Court in appeal. The petitioner filed application under section 144, C.P.C. Before the trial Court on 2nd April, 1992 alleging that on account of failure of the _respondent/decree-holder to deposit total sale price of Rs,1,16,497.90 as there was shortfall of Rs,15,624, his suit stood dismissed and judgment and decree set. Aside, therefore, the provious position as to ownership rights of the petitioner stood restored alongwith the status of the respondent/decreed-holder as tenant of the property as such, he should be directed to make payment of a specified amount as rent of the intervening period which had become recoverable from him.
6. Among others, an objection was raised that appeal was barred by time. The trial Court dismissed the application through order, dated 27th February, 1993. It was held that Article 181 of the Limitation Act was attracted to such an application which was to be made within three years from the time when the right to apply accrued, therefore, the same was barred by time having been filed after the expiry of three years. It was also held that no default as regards compliance with the judgment and decree of the High Court had taken place, therefore, the objection was misconceived and merited rejection.
7. The petitioner challenged the said order before the High Court in Civil Revision No,2281 of 1994 which has been decided through the impugned judgment on 8th June, 1994 by the learned Judge in Chamber. It was held that application under section 144, C.P.C. Moved by the petitioner was in fact, a step towards the execution satisfaction and discharge of decree, therefore, instead of Article 181, Article 183 of the Limitation Act was applicable and .Considering the time spent for the disposal of the main matter before this Court in Civil Petition for Leave to Appeal filed by the petitioner against the judgment and decree of the High Court passed in appeal, the non-compliance of which was being complained, the same was within limitation. It was, however, held that the respondent/decre-e-holder had been permitted by the trial Court to withdraw the amount of Rs,15,624 awarded to him as costs of the suit in the original judgment/decision, therefore, it was a case of an act of the Court which should not be allowed to prejudice the right of the respondent, if he had deducted the said amount while depositing the balance amount of consideration determined by the High Court in appeal, as such, there was no default as such and the respondent was directed to deposit the said amount within two months alongwith 6% profit on the said amount from the date of Appellate Court decree to the date of realization.
8. We have been informed that the respondent has deposited the said amount as directed within the time granted by the Court. The respondent has, however, also filed Civil Petition No,432 of 1996 at the Principal Seat of this Court alleging that the said amount of Rs,15,624 could still be recovered by him as costs which part of the decree of the trial Court had not been modified or set aside.
9. The main burden of the argument presented by the learned counsel of the petitioner in support of this petition was that non-compliance of the direction given in the judgment passed in appeal of the petitioner (R.F.A. No,150/1978) for depositing the remaining amount of consideration after adjustment of the amount already deposited by the respondent having not been complied with within the time granted, therefore, the respondent could not be deemed to have become owner of the property, as such, the parties were relegated to the position which they occupied before the institution of the suit i.e,, the respondent would continue to occupy the property as tenant on payment of rent at the same rate on which he was paying before and the position of the petitioner as owner of the property stood restored.
10. Learned counsel for the petitioner when questioned as to how this intention from the decree passed in appeal could be spelt out submitted that in such a case, a person in whose favour decree for specific performance of agreement of sale is passed, he could become owner on the payment of the full consideration, therefore, he had raised this argument on the said hypothesis.
11. We have gone through the application made by the petitioner before the trial Court in which the claim of restoration of status of the petitioner as owner of property and that of the respondent as tenant was based on the ground that on the failure of the respondent to deposit the full amount of consideration, the suit stood automatically dismissed as a consequence of which the petitioner was entitled to recover rent from the respondent as the previous position qua the status of the parties in relation to the property in dispute stood restored.
12. The question as to what was the effect of modification of decree made by the High Court in appeal in the decree of the trial Court is the question on the decision of which the fate of the claim of the petitioner to get restored ownership rights of the property and her entitlement to receive rent from the respondent depends. We have examined with the assistance of the learned counsel for the parties the judgment passed in appeal by the High Court which shows that the judgment and decree of the trial Court as regards specific performance ..Of agreement of sale was not either disturbed or modified but rather confirmed whereas the only modification made was that amount of consideration was enhanced and the enhanced amount was directed to be paid within six months after adjustment of the amount already paid by the respondent. It was not provided in the judgment itself that the failure of the respondent to do so within the said period, the judgment and decree of the trial Court would stand nullified or the suit would automatically stand dismissed without further order by the Court. It may be mentioned here that before the said modification was made, the respondent had already got the sale-deed registered in execution of decree on the deposit of the amount of consideration fixed in the original decree and after making compliance with the said decree as regards deposit of the amount of consideration, he was permitted by the Court to withdraw the amount of Rs,15,624 awarded to him as costs of the suit, therefore, the ownership rights in the property which had already been conferred on the respondent by force of the said sale deed got registered by the Court was not in any manner adversely affected by the modification of the decree in appeal which as observed above did not in any manner interfere with the decree for specific performance of agreement of sale itself, therefore, It could not be argued that merely because full amount of consideration had not been deposited or paid, in time the ownership rights in the property created in favour of the respondent stood extinguished especially in view of the fact that no such direction was made in the judgment passed in appeal for the setting aside of the judgment and decree of specific performance of agreement of sale itself and dismissal of suit automatically. Therefore, it can safely be presumed that it was not intended to set aside the decree itself and the sale-deed already executed in execution of the said decree by the Executing Court also remained unaffected.
13. Learned counsel for the petitioner maintained that the time granted to the respondent for deposit of the said deficient amount of Rs,15,624 amounts to extension of six months' time granted in the appeal by the High Court which could be done only by the Bench of High Court which passed the decree and not in revision petition arising from a miscellaneous application moved by the petitioner which was held to be a step in execution (sic).
13-A. Though ordinarily time fixed in a decree is to be extended in the same proceedings by the same Bench but the aforesaid plea is not tenable in the facts and circumstances of this case as in our view in substance it is not a case of extension of time fixed in the decree passed in appeal. As already observed, the respondent deposited the entire amount of consideration as fixed by the Court in the original decree and it was thereafter that on his application, he was allowed to withdraw from the said amount an amount of Rs,15,624 awarded to him as costs of the suit, therefore, in these proceedings which were held to be a step towards the execution of decree, the respondent/decree-holder should be ordered to redeposit the same by the trial Court which had permitted its withdrawal and fixed the time within which the same was to be deposited.
14. Learned counsel for the petitioner then argued that it was expressly directed in the judgment, passed in appeal as regards modification of amount of consideration that balance amount was to be deposited after deducting from the same an amount of Rs,88,047.90 therefore, the respondent while depositing the deficient amount had committed default in compliance with the said direction, therefore, he was not entitled to the grant of time to deposit the deficient amount.
15. This argument too has no force in the peculiar facts and circumstances of this case. In the judgment in appeal, it was though directed that the parties were left to bear their own costs but it was not made clear that they shall bear the costs of the litigation throughout. The trial Court in the original decree had awarded the respondent an amount of Rs,15,624 as costs which amount long before the judgment in appeal was passed had already been allowed to be withdrawn by the trial Court to respondent which fact must be in the knowledge of the petitioner when the judgment in appeal was passed and also the fact that sale-deed had already been executed. The Court in appeal while ordering that an amount of Rs,88,047.90 may be deducted appears to have presumed as if the said amount as a whole was still with the Court and it was not brought to its notice that out of the same, an amount of Rs,15,624 as amount of costs awarded to respondent had already been paid to him by the Court, therefore, it was rightly held by the learned Judge in the impugned judgment, that it was a case of an act of the Court which should not be allowed to prejudice the rights of the respondent. This is apart from the fact that in the light of the above view taken by us that mere non-deposit of a part of consideration amount, the ownership rights in the property which had already been created in favour of the respondent by execution of a registered sale-deed in execution of decree for specific performance of agreement of sale which had not been disturbed or modified, the petitioner was entitled to recover the balance amount of consideration and nothing else as directed in the judgment in appeal and could not claim ownership rights unless the decree for specific performance of agreement of sale and the sale deed executed in pursuance thereof had been expressly set aside or deemed to have been set aside or a direction issued that till the payment of enhanced amount of consideration the same would remain suspended and the parties shall be governed under the original arrangement as to payment of rent etc., which had not been done in this case.
16. Learned counsel for the respondent submitted that the respondent filed C.P.S.L.A. No,432 of 1996 against a part of order directing him to deposit an amount of Rs,15,624 as his case was that the costs awarded in the original decree has not been set aside in appeal, therefore, he was entitled to recover the. Said amount. He, however, stated that on account of the view taken by us, he does not want to press the said petition and it may be disposed of as withdrawn. We order accordingly.
17. In view of the discussion made above, the judgment, passed by the Lahore High Court impugned in this petition does not suffer from any illegality, therefore, this petition has no force which is accordingly dismissed and leave refused.