' Briefly stated the facts are that Nawab, Muhammad Khan and Ahmad Khan, predecessor-in- interest of the petitioners had instituted a suit for possession with regard to agricultural property on 29-1-1964 against predecessor-an-interest of respondents Nos.1 to 4. The suit was decreed by the trial Court vide its judgment and decree, dated 10-12-1964. The appeal filed by the respondents against the said judgment and decree had been dismissed by the learned Additional District Judge on 28-6-1965 and the petitioners in compliance with the direction of the Court, deposited the sale price of the land (pre-emption money) and through the execution proceedings obtained the possession of the suit land. The judgments and decrees of the Courts below had been challenged by the predecessor-in-interest of the respondents Nos.1 to 4 by filing a Regular Second Appeal No,847 of 1965 which was also disposed of by the High Court vide its judgment, dated 10-2- 1980, modifying the judgment and decree of learned Additional District Judge and enhancing the decretal amount by Rs,3,464.
2. The most significant feature of the case is that the Court has not fixed the date for deposit of the amount of Rs,3,464. The judgment of the High Court was passed in R.S.A. As ex parte, in the absence of the petitioners. Mr. Ahmad Waheed Khan, learned counsel for the respondents/Nawab and others (petitioners herein) did not appear, therefore. Ex pane proceedings were initiated against them.
3. The decree was passed ex parte on 10-2-1980 and it was not in the knowledge of the petitioners that the High Court has enhanced the sale price. In the year 1987, Muhammad Aslam and others have filed an application in the Civil Court praying for setting aside the judgment and decree passed in favour of the petitioners and dismissal of the suit as well as restitution of the possession of the property on the ground that the petitioners have failed to comply with the direction of the High Court passed in R.S.A. On 10-2-1980.
4. The petitioners during the proceedings of the application have applied to the Court for permission to deposit the enhanced sale price but their request was turned down and the Executing. Court vide its order, dated 6-5-1991 set aside the judgment and decree of the trial Court and dismissed the suit filed by the predecessor-in-interest of the petitioners for non-deposit of added amount of Rs,3,464. Feeling aggrieved thereby, the petitioners filed a Civil Appeal No,23 of 1991 before the District Judge, Gujrat who vide its order, dated 12-3-1992 maintained the order of the Civil Court, dated 6-5-1991 and dismissed the appeal. Both the orders of the Courts below have been assailed through the instant revision petition.
5. The Appellate Court while passing the order, dated 12-3-1992 has treated and disposed of the appeal as revision. As the suit was dismissed by the Executing Court on the application of the respondents, the dismissal of the suit is a decree, thus, the appeal was competently filed by the petitioners and number 23 for this appeal was also allotted, therefore, it is inferred that District Judge while passing the order has exercised his appellate jurisdiction. Hence, there is no ambiguity and the present revision petition has competently been filed by the petitioners.
6. Learned counsel for the petitioners contended that the High Court has not fixed the date for deposit of the remaining/enhanced decretal sale price and the judgment was passed in absence of the petitioners. Further argued that for noncompliance of the mandatory provision of law by the Court itself, the petitioners could not be punished for the act of the Court and the suit for the fault of the Court could not be dismissed. In this respect reliance is placed on cases of Waris Ali Khan alias Waris Khan v. Mst. Zaibun Nisa and 6 others (1991 SCM R 142), Fateh Khan v. Boze Mir (PLD 1991 SC 782) and Gul Usman and others v. Mst. Ahmero and 11 others (2000 SCM R 866). Learned counsel further submitted that the respondents have applied to Civil Court for restitution of possession which could be filed within three yeats from the date of delivery of possession in favour of the petitioners and provisions of Article 181 of the Limitation Act are attracted to the present case. The application of the respondents being barred by limitation is liable to be dismissed on this sole ground. In this context, he relied on the case of Telu, Judgment-debtor v. Raja Ram and others (AIR 1938 Lah. 456).
7. Conversely, the learned counsel for the respondents contended that the conduct of the petitioners-pre-emptors is based on negligence and mala fide. They cannot take the benefit of the mistake of the Court and that they were bound to deposit the sale price as directed by the High Court within a reasonable time. He relied on the cases of Bashir Ahmad v. Rehmat Ali (1998 M LD 1789), Haji IshtiN Alimad v. Bakhshaya and 7 others (1976 SCM R 420), Mst. Imtiaz Bibi and another v.
Abdul Qadir Shad and 2 others (1998 CLC 1043), Khurshid Akbar v. Mian Manzoor Ahmad (1982 SCM R 824) and Muhammad Nawaz and others v. Muhammad Sadiq (1995 SCM R 105).
8. I have heard the learned counsel for the parties and perused the record. Order 20, rule 14 of the C.P.C. Has contemplated that the Court while passing the decree for preemption with regard the particular sale of property shall specify a day on or before which the purchase money be paid and direct the decree-holder to deposit the sale price/purchase money together with the cost if any, on or before the date referred in the judgment, whereof the defendants shall deliver the possession of the property to the plaintiff-decree-holder whose title shall be deemed to have accrued from the dater, of such payment in the Court. If the purchase money as directed by the Court and the cost, if any, are not deposited, the suit shall be deemed to have dismissed.
9. ' From the bare reading of the above- referred provision of law, it would be concluded that the condition of fixing the date for payment of purchase money is mandatory. The Court will direct to deposit the same on or before the specified date and no option is left with the Court to direct the decree-holder to comply with the order of the Court and if the Court fails to specify such a date, a successful pre-emptor could not be penalized for his no fault. It is settled proposition of law that the party would not suffer on account of the act of the Court. Reliance can be placed to the case of Fateh Khan referred to above.
10. ' The provisions of Order 20, rule 14(1), C.P.C. Appeal in nature and have to be considered in stricto senso. In case the pre-emptor/decree-holder is contumacious in complying with the direction of the Court to deposit sale price on or before the prescribed date, the suit in view of the penalty as provided in the abovesaid rule shall stand dismissed. However, if such a bona fide mistake or lapse in good faith on the part of , the pre-emptors deserved serious then he is entitled for compassionate consideration of the Courts as he was not guilty of contumacious disregard of the Court's order, as observed in Gul Usman's case (supra).
' In the instant case, the plaintiff decree-holder deposited the sale price as fixed by the trial Court and in pursuance of the execution proceedings the possession of the land in dispute was delivered in their favour, meaning thereby, that the decree of the Court had been satisfied. The petitioners were not negligent or contumacious in complying with the direction of the Court.
11. After the execution of the decree of the trial Court as well as lower Appellate Court on 10-2-1980 the High Court has enhanced the purchase money and directed the judgment-debtor/defendant to receive an amount of Rs,3,464 as part of the sale price. This decree was passed ex parte in absence of the petitioners as is evident from the judgment of the High Court in R.S.A. No,847 of 1965.
Learned counsel for the present petitioner Mr. Ahmad Waheed Khan did not appear in Court, so, the judgment of the High Court was not in the knowledge of the petitioners and after the expiry of seven years the respondents have applied to the Civil Court for setting aside of the judgment and decree and dismissal of the suit as well as restitution of possession of land for noncompliance of direction of High Court and failure of defendants in depositing Rs,3,464.
12. Section 144, C.P.C. Deals with the powers of the Court for restitution of possession which envisaged that where and in sofaras a decree is varied or rewind the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as well, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed, and for this purpose the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profit which are properly consequential on such variation or reversal.
13. In the case in hand the original decree of the trial Court had been satisfied after the completion of execution proceedings and modification of the decree in absence of the petitioners was made and in that judgment no specific date was fixed and the petitioners have agitated before the Civil Court that they are ready to deposit the enhanced decretal amount. It was incumbent upon the Court to allow the petitioners to deposit the part of sale price in Court. In such-like situation, the IC suit could not be dismissed.
14. After adjudication on the lis the superior right of pre-emption of the petitioners has been established and compliance of the decree has been made. The trial/Executing Court should have exercised its discretion reasonably and properly keeping in view the facts of the case in hand. This proposition has been dealt with by the Hon'ble Supreme Court of Pakistan in case of Waris Ali Khan (supra).
15. No period is provided in section 144, C.P.C. For restitution of possession of the property for non- compliance of the decree of the Court and where time is provided the provision of Article 181 of the Limitation Act would apply which has prescribed period for three years. The respondents have filed the application for restitution of possession after the expiry of period of limitation which was awfully barred by time, as observed in Telu's case, referred to above.
16. In the case in hand, the High Court failed to specify the date according to the provision of Order 20, rule 14, C.P.C., thus, for the act of the Court litigants/petitioners would not be punished and no penalty can be imposed on them.
17. In the cases referred to above by the learned counsel for the respondents, the Court while passing the decree had fixed the date for deposit of the purchase money and the decree-holder was contumacious in complying with the direction of the Court. The question in the said cases was the extension of time by the Appellate Court. Thus, the said cases are not attracted to the facts of the present case in hand and not helpful to the respondents.
18. The above legal aspects of the case have not been adverted to by the Courts below, so, the judgments passed by them call for interference and not sustainable in law.
19. Resultantly, this revision petition is accepted and the judgments and decrees of the Courts below, dated 6-5-1991 and 12-3-1992 passed by the learned Senior Civil Judge/Executing Court and that of learned District Judge, Gujrat, respectively dismissing the suit of the petitioners, are set aside. The judgment and decree passed by the trial Court, dated 10-12-1964 and the Appellate Court, dated 28-6-1965 shall hold good. The application filed by the judgment debtor-respondents is dismissed. The petitioners will deposit the enhanced amount of Rs,3,464 within thirty days i,e, on or before 30-8-2001. Failing which, the possession of the pre-empted lane; shall be restituted to the respondents. The suit filed by the petitioners be dismissed and the original judgments and decrees passed by the trial Court as well as Appellate Court shall also stand set aside.