Through the instant revision petition the petitioner has called in question the order of the executing Court, dated 2-5-1995 and the order and judgment of the Appellate Court, dated 13-11-1996 whereby the appeal of the petitioner was dismissed. Through the impugned order and judgment of the lower Court in execution petition time for payment in terms of the final decree, dated 15-3-1992 was extended to respondent No,1 under section 148 read with section 151, C.P.C. and the application of the petitioner, dated 9-5-1992 for permission to make payment of the shares of respondents in the terms of final decree was not considered.
2. The facts in brief are that Mehmooda Begum, respondent No,4 (who died during the proceedings and represented by her legal representatives) filed a suit for 1/8 share through partition and possession regarding the built up property consisting of a house bearing No,CB175/1087/292 situated in Mohallah Dhaki Munawar Shah and a shop bearing No,CB 421/1581-1536 located in Andar Shahar Peshawar City left by her father, against the petitioner and respondents Nos.1 to 3.
The suit was contested by the petitioner and respondent No,1 and a preliminary decree was granted to plaintiff/respondent No,4 on 14-4-1990 which was upheld in appeal. Respondent No,4 submitted an application for final decree. The trial Court appointed a local Commissioner who submitted his report, on which basis, final decree was passed on 15-3-1992 in the following terms:-- "The assessed valuation of both the properties recommended in the commission report is confirmed and final decree is passed in accordance therewith and the defendant No,1 (respondent No,1 herein) is left to his option either accepting the above said market value, make payment therewith to the plaintiff and the defendants Nos.2 and 3 in accordance with the shares held in the preliminary decree with respect to both the house and shop, or if he retains the shop, make payment the share of the plaintiff and the defendants Nos.2 and 3 within 30 days or accept the share of his payment from the defendant No,2 (petitioner herein) within the next 30 days, starting from the expiry of the 30 days granted to the defendant No,1 and in case, the defendant No,1 does not want to take the house, the defendant No,2 will make payment of the share of the aforesaid house to the plaintiff and the defendants Nos.1 and 3 within the aforementioned period."
3. Respondent No,1 filed an objection petition, dated 10-10-1991 against the report of local Commission wherein it was alleged that the rate specified by the local Commission for the house under dispute as Rs,120 per sq. feet for ground floor and Rs,105 per sq. feet for first and second floor was not suitable as the house is situated in a commercial area and could be converted as such at any time. It was suggested that the market value of the house is not less than Rs,10,00,000 (Rs,ten lacs). The assessed value by the local commission of the shop in question was also objected on the ground of its poor construction and dilapidated condition. It was suggested that its market price would be in between 8 to 10 lacs.
4. Respondent No,1 preferred a revision petition before this Court bearing No,631 of 1993 without filing an appeal in the Appellate Court against the final decree which was appealable under the C.P.C. The revision petition was considered only against the rejection of objection petition of respondent No,
1. It was contended before the Court that the dismissal of his objection petition has emerged into final decree and no proceedings are pending in the trial Court, if a revision petition is accepted and the matter is remanded to the trial Court, the petitioner would achieve his object.
Regarding non-filing an appeal against the final decree it was stated by the learned counsel that at the time when brief was delivered to him, the time limit for filing an appeal had expired. These contentions were found not reasonable for filing a revision petition and the same was dismissed vide order, dated 16-6-1994.
5. After getting a final decree, respondent No ,4 filed an execution petition in the trial Court where the petitioner submitted an application on 9-5-1992 seeking permission to make payment in terms of decree as respondent No,1 who was given the first option in the decree to make payment of the remaining shareholders within 30 days, had failed to exercise his option or to ilk any review in the same Court or to get the suspension order against the final decree from this Court where the revision petition was filed. (Pertinent to mention here that the aforesaid application of the petitioner was entertained on 14-5-1992 while the period granted to the petitioner as alternate or second option was to expire on the following day i,e, 15-3-1992).
6. After dismissal of revision petition by this Court, respondent No,1 submitted an application to the trial Court for permission to make payment of the price of other shareholders in respect of the shop only. It was also prayed that the petitioner be also directed to make payment in the terms of final decree respecting the disputed house in his occupation.
7. The learned Civil Judge, vide his order, dated 2-5-1995 after extending the time for payment 'fixed in the final decree under section 148 read with section 151, C.P.C. directed respondent No,1 to deposit the price of the share of other co-owners within a month failing which the petitioner was held entitled for the said payment. Petitioner being aggrieved from the extension of time and direction to respondent No,1 as noted above, preferred an appeal to the Court of Additional District Judge which was dismissed vide the impugned order dated 13-11-1996.
8. I heard the learned counsel for the petitioner who contended that neither the executing Court can go beyond the decree nor competent to extend the time for payment under section 148 read with section 151, C.P.C. In support of his contention he relied upon PLD 1970 Peshawar 54, 1990 SCMR 1107, 1992 SCMR 2175, 1994 CLC 1311, 1997 CLC 1682 and PLD 1983 Karachi 521. Further submitted that the petitioner had applied on 9-5-1992 seeking permission to make payment of other shareholders in the terms of final decree which was well within time and in accordance with the direction made in the final decree. No order whatsoever was passed on the said application. Respondent No,1 applied for the deposit of the shares of other shareholders in respect of the shop only on 28-7-1994 after dismissal of his revision petition in this Court on 16-6-1994 (after 42 days). Mere the filing of revision petition against the rejection of objection petition was no excuse for non-compliance of Court order when admittedly no suspension order of the final decree was issued by the revisional Court.
9. The learned counsel for respondent No,1 contended that the executing Court was legally competent to enlarge extend the time for payment in terms of the final decree as the final decree was made sub judice in revision petition. The mere pendency of the revision petition which was admitted to regular hearing was itself sufficient ground for noncompliance of final decree even without issuance of suspension order. The impugned orders of the two Courts below were passed under the inheritance power for doing justice between the parties under section 148 read with section 151, C.P.C. In support of his submissions he relied upon 1992 SCMR 241, 1984 SCMR 504 and also on 1987 CLC 1682 relied upon by the learned counsel for the petitioner.
10. There is no controversy between the parties regarding the facts of the case. The main controversy between the parties is regarding the extension of time under the power envisaged in section 148 of the C.P.C. and as to whether the Executing Court under its inherent power could extend the time fixed in the final decree. Undisputedly first option was given to respondent No,1 to pay the price for the shares of the co-sharers parties to the suit within a specified period of 30 days failing which in alternate the petitioner was granted the right to purchase the shares of other shareholders parties to the suit within a further period of 30 days. There is no cavil to the proposition that executing Court cannot go beyond the decree, the extension of time would amount alteration of the period specified in the final decree which is beyond the power of an Executing Court. 1987 CLC 1682 can be referred in support.
11. Not availing the chance afforded to respondent No,1 on priority as against the petitioner has granted a vested right to the petitioner in the terms of final decree. There is no controversy on the fact that the petitioner applied for payment in compliance of the final decree within the period fixed in the decree. The powers of Court regarding extension of time was discussed in Mst. Walayat Khatoon's case reported in PLD 1979 SC 281 but in the context of Order VII, Rule 11, C.P.C. and the following dictum was laid down:-- "It will divide suits or plaints into two categories. One category is where the plaint is filed well in time, and there is still some period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and bound to grant time under Order VII, Rule 11(c), C.P.C. and the time granted itself should also be within the meaning period of limitation. There is a stage when the matter is solely between a subject and the State. However, if despite grant of such an opportunity the needful is not done the Court shall reject the plaint. The second category is that where on the date of grant of time the suit has already become time-barred or where though the time was granted on a date when suit was within limitation but it was granted or extended up to a date by which the suit will become time-barred. However, the matter is not confined solely between a subject and the State because in such a situation a third person namely defendant has also in the meantime due to running out of the period of limitation in his favour acquired a vested right. These cases are distinguishable from the first category, and are a class by themselves. There are to be regulated by sections 148 and 149 of the C.P.C. which as is obvious authorize the Court to destroy the defence of limitation which may have become available to a defendant in the meantime. It is this category of cases in which a Court is not bound or obliged to grant time and nor is it to be granted just in routine or mechanically but by keeping in view the above considerations. "
12. By now it is well-established principle of law that the power under section 148, C.P.C. could only be exercised when the matter has not finally been resolved and the Court is still seized of the matter, when the Court finally adjudicated a matter and passed a final decree it became functus officio and as such could not exercise the power under section 148, C.P.C. It was admitted at the bar by the learned counsel for respondent No,1 that when the Court, finally determined a controversy could not extend the time but in his opinion the impugned order and judgment were passed when the Court was still seized of the matter and not finally concluded. The view of the learned counsel for respondent No,1 is not based on established principles of law where under the Court ceased of the matter when a final decree is passed.
13. In the instant case final decree was passed on 15-3-1992 which could be altered by review, appeal or revision but could not be altered by executing Court under section 148, C.P.C. or 151 of the C.P.C.
14. Section 148 of the C.P.C. reads as follows:-- "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
15. The plain reading of the above provisions reveals that the Court can only and competently extend the time when the same is prescribed under the various provisions of C.P.C. i,e, Sections 55, 143, 149, Order 6, Rule 18, Order 7, Rule 11, Order 8, Rule 9, Order 9. Rules 9 and 13, Order 11, Rules 9 and 17, Order 12, Rule 4, Order 16, Rule 2, Order 21, Rules 17 and 33, Order 23 Rule 1, Order 25, Rule 1, Order 41, Rules 10, 19, 21, 22 and 26, Order 43, Rule 3 and Order 47, Rule 7.
16. The Court cannot competently enlarge the time under section 148 of the C.P.C. unless the time limit is already prescribed under the Code.
17. The Court can competently extend the time specified by it if the matter is still sub judice and not concluded finally but as soon as the Court disposed of the suit, the power available to it under section 148 of the C.P.C. comes to an end a observed by this Court in Feroz Din v. Sheikh Ahmad (PLD 1970 Peshawar 54). The relevant portion of the same is reproduced below:-- "The principle underlying the application of this section to a case depends on the question whether the matter has been finally disposed of by the Court or the Court is seized of the matter and has control over it. If the order is not final and the Court retains its control over and is seized of the matter it has full power to make any just or necessary order therein including in appropriate cases the extension of the time under this section. On the other hand, if the effect of the order is that in the event of non-compliance, it operates automatically and without further intervention of the Court this section cannot be applied for the obvious reason that the Court' ceases to be seized of the matter and becomes functus officio. Thus the Court ceases to have jurisdiction over the matter after the order granting the period has passed. The time cannot be extended even by the same Court,"
18. In another case Nizamuddin and 13 others v. Ch. Muhammad Saeed and 7 others (1987 CLC (Lahore) 1682), it was observed as follows:-- "It may be stated as a general rule that, unless otherwise provided, a Court is not competent to alter a decree and that neither section 148 nor the residuary section 151 of the Code of Civil Procedure will avail a person who seeks the alteration.
Section 148 gives the Court power to extend time fixed or granted by it for the doing of any act prescribed or allowed by the Code and this the Court can do even after the period originally fixed or granted has expired. But this section, it is now well settled, does not apply where the period is fixed by a decree unless the decree is in the nature of a preliminary decree and the Court still retains seizin over the action."
19. The contention of the learned counsel for respondent No,1 that due to pendency of revision petition against the rejection of his objection petition the matter would be considered as pending, is not based on established principles of law. The pendency of revision petition itself does not suspend the operation of decree impugned unless it is suspended by an order of the Court seized of the revision petition. Even if the contention is accepted, respondent No,1 has also failed to comply with the direction made in the final decree by not making the payment within 30 days even after the dismissal of the revision petition. In such eventuality the august Supreme Court of Pakistan in Khurshid Akbar's case (1982 SCMR 824) observed as follows:-- "The judgment in the case was also announced on the said date. Prudence required that someone should have been present on 21-6-1969 before the Court for discovering what happened on the saint date. In fact, the appellant had become aware of the result of his appeal on 12-6-1969 because in the application filed on 11-7-1969 praying for fixation of time to make the deposit, it is clearly mentioned that an order was passed on 21-6-1969. In any case, he applied for a copy of the judgment on 23-6-1969 and was, therefore, definitely aware of the result of his appeal at least on that day. He could therefore, have easily made the deposit by 26-6-1969. However, he took no action in the matter until 11-7-1969 and wasted nearly 18 days after admittedly becoming aware of the order, although the law on the subject, as explained in the Holy Trinity case PLD 1963 Lah. 489 and in Shah Wali's case PLD 1966 SC 983 provided sufficient guidance on the subject. According to the appellant, he obtained the copy of the judgment on 2-7-1969. If this was even taken to be the date on which he became aware of the terms of the order of the District Judge, he took no tangible steps towards depositing the pre-emption amount in Court, but merely confined his activities to consulting lawyers in this connection and then moved an application for fixing home times for making the deposit. This delay of 9 days, in the context of the case, was an unreasonably long time when we see that this was a pre-emption matter, the appellant himself had sought the suspension of the decree of the trial Court, so far as making of deposit was concerned to use this Court's expression "at his own peril" and the slightest indolence and lethargy shown by him after his appeal had failed, could be fatal to his case. Therefore, after obtaining the copy on 2-7-1969, he could not waste any further time."
20. As compared to respondent No,1, the petitioner has well in time applied for compliance of the decree on his part but the executing Court has not considered the application of the petitioner one way or the other probably due to grant of extension of time to respondent No,
1. The judgments cited by the learned counsel for the respondent No,1 are distinguishable on legal as well as factual grounds.
21. Criminal Miscellaneous No,1151 of 1997 has been filed under section 4 of the Contempt of 'Court Act, 1976 for awarding, exemplary punishment to the contemnor. It is alleged in the application that by removing the gate, fans weighing machines, cash box and other fixtures of the shop and by damaging and changing the interior structure of the shop by respondent Ghulam Jillani Pehlwan amounts to violation of the order, dated 18-6-1997 whereby C.M. No,68 of 1997 for temporary injunction was allowed. The alleged violation explained in para. 2 of the petition is not covered by the plain words of order, dated 18-6-1997, whereby the execution proceedings were ordered to be stayed. Anyhow the petitioner can seek his redressal against any change in the fixture or damage and change to the structure of the shop before the Executing Court if not forbidden under the law.
This Criminal Miscellaneous application for contempt of Court is misconceived and is therefore, dismissed.
22. In view of the discussion made above, this revision petition is accepted. The impugned orders and judgments, dated 2-5-1995 of the Executing Court and 13-11-1996 of the Additional District Judge are set aside and the Executing Court is directed to execute the final decree, dated 15-3- 1992 in letter and spirit keeping in view the application of the petitioner, dated 9-5-1992 entertained on 14-5-1992. No order as to costs.