' This revision petition has been directed against the judgment, dated 16-4-1986 passed by the learned Additional District Judge, Khanewal.
2. Briefly stated the facts of the case are that two separate suits one by Muhammad Nawaz, petitioner, and the other by Allah Bakhsh, respondent No,1, rival pre-emptors, had been filed on a sale of land measuring 20 Kanals, 2 Marlas situated at Chughata Pajwana, Tehsil Mian Chaim, District Khanewal, effected through a mutation of sale No,78, dated 18-81972 in favour of the vendees. The suits were contested by the vendees/respondents Nos.2 to 4, denying the averments of the plaint. The trial Court consolidated both the suits and after recording and appreciating the evidence pro and contra of the parties, decreed the suits vide consolidated judgments and decrees, dated 20-5-1976. The suit of the petitioner/Muhammad Nawaz was decreed to the extent of 7/8th share of the land for a sale price of Rs,13,125 and the suit filed by respondent/Allah Bakhsh, was decreed to the extent of 1/8th share of land for a sale price of Rs,1,875. The trial Court directed the pre-emptors/plaintiffs to deposit the decretal amount proportionately till 20-6-1976. It was also directed by the trial Court that if any of the pre-emptor failed to deposit his share of amount within the date given by the Court, then, the other pre-emptor would deposit his share of amount and decree will be deemed to have been passed in toto in his favour.
3. The petitioner made the payment of decretal amount to the vendees through cheque and thereafter filed an application for issuance of certificate to this effect. The trial Court recorded the statements of the vendees on 24-6-1976, wherein the vendees had stated that they received the amount from the pre-emptor outside the Court through a cheque issued two years prior to the decree. The decree was executed in favour of both the plaintiffs/pre-emptors to the extent of respective shares and Mutation No,97; dated 30-7-1976 was attested in their favour. The respondent No,1/rival preemptor, applied for execution of the entire decree in his favour on 1-10- 1978 alleging therein, that he has deposited the entire decretal amount and decree be executed in his favour. The petitioner contested that application and filed his objections to the execution of the application of respondent No,1. The Executing Court dismissed the same vide order, dated 12-12- 1984 and the application for execution of the total decree of the rival preemptor/respondent No,1 was allowed. Feeling aggrieved, the petitioner fildd an appeal which came up for hearing before the learned Additional District Judge, Khanewal, who, vide order, dated 16-4-1986 dismissed the same.
4. Learned counsel for the petitioner contended that it was a case of equitable set off. The amount paid by the petitioner to the vendees prior to the decree of the suit was adjustable in the decree and the principle of equitable set off is applicable to the instant case and that the principle of equity is also applicable to the pre-emption cases. The suit of the petitioner has been decreed and he should not be non-suited on mere technicalities. He further contended that the decree had been satisfied by making the payment to the vendees out of the Court and the order of the Court has been complied with.
5. On the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner and contended that the payment of purchase price under pre-emption decree out of the Court to the vendees would not be deemed to have fulfilled the terms of pre-emption decree passed in his favour. He relied on the cases of Ghulam Mohyuddin v.
Muhammad Balchsh PLD 1979 Lah. 766, Dullah (deceased) through Legal Heirs and another v.
Muhammad Hanif PLD 1994 Lah. 200 and Siraj Din v. Sardar Khan 1993 SCMR 745.
6. I have heard both sides and perused the record.
' The Court has passed the decree in pre-emption suit vide judgment and decree, dated 20-5-1976 wherein it was directed that each of the plaintiff/pre-emptor would be entitled to deposit his share of pre-emption money till 20-6-1976 and in default thereof, his suit would be deemed to be dismissed and if any of the pre-emptor failed to deposit his share, the other pre-emptor would be entitled to deposit the whole amount till that date. Thereafter, the whole decree would be deemed to have been passed in his favour,
8. From the plain reading of the word of the decree, It is manifestly clear that the Court has directed to deposit the amount in the Court and it was not directed by the Court to make the payment to the vendees out of the Court. There are special provisions with regard to the payment of purchase money in pre-emption decrees contained in Order 20, Rule 14, C.P.C. "Under an accepted rule of interpretation the special provisions would to the A extent of inconsistency exclude the general provisions. This is not the only consideration, if the history of the relevant provisions in the pre- emption law and Code of Civil Procedure is kept in view, it becomes absolutely clear that the Legislature from the very beginning laid emphasis on separate treatment of the subject of the mode of payment of the pre-emption money by the preemptor to the vendee as distinguished from the payment of money by a judgment-debtor to the decree-holder. Where in connection with pre-emption, barring a very short, period in the last century when no independent B provision/mode existed in this behalf, in the later statutes, it has always been laid down that the purchase money shall be paidinto Court while other sums under the money and other decrees could be paid out of the Court under certain conditions".
9. Apart from the above two weighty reasons, there is yet another reason for non-application of Order XXI, Rule 2 to the payment of purchase money under a decree in a suit for pre-emption.
Heading of Rule 2 is "Payment out of Court to decree-holder". In case of pre-emption decrees the sum is not paid to a decree-holder, on the other hand, in the peculiar context the decree-holder pays the amount to the judgment-debtor in order to achieve complete success. This is not all. The rule itself provides that when the decree is so adjusted in whole or in part so as to satisfy "the decree-holder", only then, the decree-holder "shall certify such adjustment or for that matter payment to the Court". Obviously the certification by a pre-emptor decree-holder himself is not covered by this rule. In sub-Rule (2) of Rule 2 although it is provided that a judgment-debtor can also inform the Court with regard to the payment of adjustment out of Court, but the context is such that a vendee judgment-debtor in a pre-emption suit would not be covered by the phrase "judgment-debtor". It would not at all be necessary or in the interest of the judgment-debtor in a pre-temptation suit to seek such a certification. On the other hand, it is for the pre-emptor decree- holder, after payment, that he would seek further action thereon. This is not all, when clause (b) of sub-Rule (1) of Rule 1 is read together with Rule 2 of Order XXI which is an extension of the said clause, the above reasoning would be further strengthened. Under the said clause the money under a decree can be paid out of Court to the decree-holder through a Bank or by a postal order or on evidence by writing signed by the decree-holder or his agent. The payment to the decree- holder under Rule 2 serves almost the same purpose. It would be seen that the law in this behalf contained in the said clause of Rule 1 and Rule 2 depends upon a vital pre-condition that the payment out of Court is to the decree-holder and not the judgment-debtor. In the pre-emption decree, it is the reverse. The pre-emption amount is payable by the decree-holder to the judgment-debtor. In the light of the foregoing discussion, it is, therefore, held that the above rule shall not apply to the payment of purchase money under the decrees in pre-emption suits.
10. This argument of the learned counsel is further strengthened by the dictum laid down in cases of Dullah (deceased) through Legal heirs and another and Siraj Din, referred to above.
11. Resultantly, this revision petition having no force is dismissed.