' The brief facts out of which the present revision petition arises are that Mst. Gulzar Fatima daughter of Fazal Ahmad owned land measuring 126 Kanals, 19 Marlas situated in Mauza Chak Bandi, Tehsil Chiniot, District Jhang who gifted the same to the present petitioners jointly vide Mutation No,1335 which was attested by the Revenue Officer on 15-1-1998. The respondents filed suit for possession through pre-emption on the ground of common watercourse and common way on 15-5-1998 before the Civil Judge First Class, Chiniot. The respondents have evaluated to the suit property at Rs,6,00,000. The trial Court directed to deposit Rs,2,00,000 as Zar-e-Soem within one month till 13-6-1998. The respondents deposited the same before 30th June, 1998. The petitioners filed application under Order VII, rule 11, C.P.C. On the ground that the respondents have evaluated the suit property at Rs,6,00,000 whereas the value of the suit property is Rs,11,11,280 as is evident from the contents of Mutation No,1335. The trial Court dismissed the application on 21-10-1998. The petitioner subsequently filed another application under Order 7, rule 11, C.P.C, for the rejection of the plaint which was also dismissed vide order, dated 11-2-1999 by the trial Court, hence the present revision petition.
2. The learned counsel of the petitioner submits that respondents/plaintiffs have malafidely evaluated the suit property at Rs,6,00,000 whereas the value' of the suit property is Rs,11,11,280 as is evident from the contents of the Mutation No,1335, therefore, order of the trial Court is in violation of mandatory provisions of Punjab Pre-emption Act, 1991 and the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-- ' PLD 2000 Lah. 190 (Abdul Wahid and 8 others v. Sardar Ali and others).
' 1992 MLD 46 (Sher Bahadur Khan and another v. Haji Wali Batkhan).
' 1995 MLD 1011 (Muhammad Ismael v. Jameel-ur-Rehman and 6 others).
' 1992 SCMR, 746 (Awal Noor v. District Judge, Karak).
' 1995 SCMR 135 (Habib Ullah Khan v. Amir Zaman).
3. The learned counsel of the respondents submits that suit was filed by the respondents on 15-5- 1998 and deposited Zare-Soem as determined by the trial Court on the basis of the material before the trial Court on 15-5-1998 and directed the respondents/plaintiffs to deposit Rs, 2,00,000 till 13-6- 1998. The trial Court determined the sale price as the petitioners/defendants mentioned inflated price in the mutation in question and the price so mentioned by the petitioners in the impugned mutation appears to be inflated, therefore order of the trial Court is in accordance with section 24 of the Punjab Pre-emption Act, 1991.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce section 24 of the Punjab Preemption Act to resolve the controversy between the parties-- "24. Plaintiff to deposit sale price of the property.--(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2) Whether the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub- section (1) shall not affect the final determination of the price payable by the pre-emptor."
Mere reading of the proviso (2) of section 24 aforesaid contained the following conditions precedent to determine the value of the property in question:
(i) No sale price is mentioned in the sale-deed or in the mutation.
(ii) Price so mentioned appears to be inflated.
' The ingredients shown that Court can determine the value of the property in case the price is not mentioned in sale-deed or mutation. In the present case admittedly respondents/plaintiffs did not attach mutation along with the plaint or did not mention the contents of the mutation in the plaint.
In such situation the trial Court has jurisdiction to determine the probable value of the property in case the Court has to rely on its own judgment after an enquiry of preliminary nature seeking material from the plaintiffs and if per chance the defendant has appeared from him also, that price mentioned is inflated. The petitioners have brought on record Mutation No,1335 which was attested by the Revenue Officer on 15-1-1998 which contained the value of the property Rs,11,11,280.
The contention of the learned counsel of the petitioners that trial Court has no jurisdiction to extend the time after one month and respondents /plaintiffs concealed material facts from the trial Court and mentioned wrong value of the property in question in violation of the value mentioned in the mutation, therefore, trial Court has erred in law to dismiss the application of the petitioners as per principle laid down by the Hon'ble Supreme Court in Awal Noor's case (1992 SCMR 746) and relevant observation is as follows:-- "In the light of the foregoing discussion no amount could be ordered to be deposited beyond 30 days. Hence the direction for further deposit in this case was not lawful. Accordingly the said order as well as the impugned judgment upholding the same are set aside The trial Court shall now proceed beyond the stage of the deposit of amount under section 24."
' The aforesaid case was considered by the Hon'ble Supreme Court subsequently in Haji Ghulam Nabi v. Shoab Jameela and 8 others (1994 SCMR 845) and observed as under:-- ' The decision of this Court in Awal Noor's case is distinguishable. It was not a case of sale being incorporated in sale-deed or in a mutation, therefore, no actual price data being available with the appellant. He gave before the trial Court only the estimated value of the property. In these circumstances an observation was made that: ' The plaintiff produced an incorrect copy of the mutation. The defendants not only produced copy of mutation but also changed said mutation with other document, therefore, the order passed on 30-6-1991 will be an order passed under section 24 of the Act, A person cannot get the benefit of his own wrong doing. Law is to be interpreted rationally and justly. It cannot be urged that an order passed on the basis of an invalid document becomes sacrosanct and cannot be removed after true documents, as contemplated in section 24 of the Act, are brought before the Court."
' In view of Haji Gul Nabi's case suit cannot be dismissed under Order VII, Rule 11, C.P.C. Similarly the contention of the learned counsel of the respondents has no force that order passed by the trial Court on 15-5-1998 cannot be reviewed by the trial Court. It is the duty and obligation of the trial Court to pass fresh order when it was brought into the notice of trial Court that the prices mentioned in the plaint contrary to the price mentioned in the mutation in question. The Hon'ble Supreme Court has interpreted section 24 in Habib Ullah Khan's case 1995 SCMR 135 and the relevant is as follows:-- ' The bare reading thereof makes it amply clear that the Court had to determine the probable value of the property only if no sale price had been mentioned in the sale-deed or in the mutation, meaning thereby that if the sale consideration was mentioned in the document of transfer, the Court had no discretion in the matter and was bound to pass the order, for deposit according to subsection (1) of section 24."
' The Scheme of the Act clearly reveals that the plaintiff is at liberty to prove that the market value is different than the one mentioned in the sale-deed or mutation as envisaged by sections 27, 28 and 25 of the Pre-emption Act, 1991. In arriving to the aforesaid conclusion I am fortified by the following judgments:-- ' Abdul Wahid v. Sardar Ali PLD 2000 Lah.
190.
' Abdul Wahid and others v. Sardar Ali 2000 SCMR 650.
The learned counsel of the petitioners with reference to the above-noted case stated that Court has no power to extend the time and the Court includes the Appellate Court The arguments cannot be allowed to prevail for the strong and good reason that this would amount to curtailing the power of the Appellate Court as laid down in the Civil Procedure Code, 1908. In particular the provisions of section 107 and Order 41, Rules 32 and 33, C.P.C. It is otherwise inherent in the appellate power to pass such order as would tend to do complete -justice between the parties coupled with the facts that the contention of the learned counsel of the petitioners is not in accordance with the principle laid down by the Hon'ble Supreme Court in Haji Gul Nabi's case (1994 SCMR 845). It is also settled proposition of law that nobody should be penalized by the act of the Court as per principle laid down by the Hon'ble Supreme Court in Muhammad Hanif's case PLD 1990 SC 859. The trend of Authority is that in such-like circumstances when it is on account of an act of Court that a party is likely to suffer harm, the Court would not let it suffer any such harm. See for example PLD 1972 SC 69 (Malik Hadayat Ullah's case), 1986 SCMR 849) (Bhai Khan's case). The Full Bench of this Court has considered the aforesaid proposition of law and laid down 'following principle in R.F.A. No, 113 of 1999 after considering all the case-law on the subject:-- "The application under section 24(2) of Act moved by the defendant is dismissed and the suit would be deemed to be pending before the trial Court, who is directed to decide the same expeditiously in accordance with law. "
In view of what has been discussed above the trial Court has to review its earlier order dated 15-5- 1998 and direct the respondents to deposit additional amount calculated on the basis of the value of the property in question mentioned in mutation amounting to Rs,11,11,280 as per principle laid down by the Hon'ble Supreme Court in Haji Gul Nabi's case and Habib Ullah Khan's case (supra). I would, therefore, remand the case to the trial Court for decision on merits provided the respondents/plaintiffs deposit 1/3rd of the sale price mentioned in the mutation (Rs,11,11,280) on or before 22-5-2000 as per principle laid down by the Hon'ble Supreme Court in Abdul Wahid's case failing which their suit shall stand dismissed. In view of difficult question of law involved, I would leave the parties to bear their own costs. The revision petition is disposed of with the above terms.
Order accordingly.
2000 L R 1798 [Peshawar] Before Shah Jehan Khan, J GHULAM MURTAZA and others---Petitioners versus GHULAM JILLANI and others---Respondents Civil Revision No,74 of 1997, decided on 29th June.
2000.
Civil Procedure Code (V of 1908)- ----S.47---Extension of time specified in the decree---Executing Court---Powers of--Scope--- Executing Court cannot go beyond the decree, extension of time amounts to alteration of the period specified in final decree which is beyond the power of an Executing Court. [p. 1802] A 1987 CLC 1682 ref.
(a) Civil Procedure Code (V of 1908)---- ----S.148---Decree---Time, enlargement of---Exercise of power under S.148, C.P.C.--- Scope--- Such power can only be exercised when the matter has not finally been resolued and the Court is still seized of the matter---Where a Court has finally adjudicated a matter and has passed a final decree such Court becomes functus officio and as ,such cannot exercise the power under 5.148, C.P. C. In circumstances. [p. 1802] B
(b) Civil Procedure Code (V of 1908)--- ----S. 2(2)---Court ceases with the matter when a final decree is passed. [p. 1802] C
(c) Civil Procedure Code (V of 1908)- ----Ss. 47, 148 & 151---Decree, alteration of---Executing Court, powers of---Decree can be altered kv review, appeal or revision but cannot he altered by Executing Court under S.148 or S.151, C.P.C.
[p.'1802] D
(d) Civil Procedure Code (V of 1908)--- ----5.148---Time, enlargement of---Provisions of C. P.C. Under which Court can enlarge time listed.
[p. 1803] E
(e) Civil Procedure Code (V of 1908)--- ----S. 148---Time, enlargement of---Powers of Trial Court---Scope---Court cannot competently enlarge time under 5.148, C.P.C. Unless the time limit is already' prescribed under C.P.
C. ---Where the matter is still sub judice and not concluded finally, the Trial Court can competently extend time specified by it---Power available to the Court under 5.148, C.P.C. Comes to an end as soon as the Court disposes of the suit. [p.'1803] F PLD 1970 Pesh. 54 and 1997 CLC 1682 ref.
(g) Civil Procedure Code (V of 1908)--- ----S.115---Revision---Operation of decree under revision---Scope---Pendency of revision petition itself does not suspend operation of the decree unless it is suspended by an order of the Court seized of the revision petition. [p. 1804] G Khurshid Akbar's case 1982 SCMR 824; Holy Trinity's case PLD 1963 Lah. 489 and Shah Wali's case PLD 1966 SC 983 ref.
(h) Civil Procedure Code (V of 1908)- ----Ss.47, 148 & 115---Executing Court---Enlargement of time for deposit of money---Time prescribed in the decree for deposit of amount was enlarged in favour of the respondent by the Executing Court---Appeal of the petitioner was dismissed by the Lower Appellate Court---Validity- --Petitioner had well in time applied for compliance of the decree on his part but the Executing Court had not considered the application of the petitioner due to grant of extension of time to the respondent---Orders and judgments of both the Courts below were set aside in revision and the Executing Court was directed to execute the final decree in letter and spirit. [pp. 1804, 1805] H & 1 1992 SCMR 241; 1984 SCMR 504 and 1987 CLC 1682 distinguished.
PLD 1970 Pesh. 54; 1990 SCMR 1107; 1992' SCMR 2175; 1994 CLC 1311; 1997 CLC 1682; PLD 1983 Kar. 527 and PLD 1979 SC 281 ref. S.M. Saddique Haider Qureshi for Petitioner.
Sh. Wazir Muhammad for Respondents.
Date of hearing: 18th May, 2000.
' 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 t3 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 noncompliance 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 preemption 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 preemption 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.