Abdul Karim the predecessor-in-interest of the petitioners purchased the suit land. Nazir Ahmad predecessor-in-interest of private respondents filed a pre-emption suit on 15-4-1974. The suit was decreed by the learned trial Court on 30-7-1977 on terms that a sum of Rs,60,000 be deposited (after adjustment of '/5th) upto 3-9-1977. The amount was deposited on 2-9-1977 by the deceased/pre-emptor. The first appeal filed by the vendee was allowed on 2-12-1981 and the suit was dismissed on the ground that the court-tee was deficient and deficiency was not made up within limitation period. R.S.A. No,261 of 1981 was dismissed by this Court on 12-10-1983. The pre- emptor then filed C.A. No, 358 of 1985 which was allowed by the Supreme Court on 21-10-1989.
Meanwhile the pre-emption money was withdrawn by the deceased/pre-emptor on 5-11-1984 while the '/5th was withdrawn on 23-9-1985. According to the respondents the copy of the Supreme Court was delivered on 4-11-1989 and said amount was again deposited on 30-11-1989.
The execution petition was filed on 2-12-1989. Warrants for possession were issued on 17-1-1990 and possession was delivered on 28-2-1990. On 16-9-1993 the vendee/judgment-debtor filed an objections petition stating that decree holder had withdrawn the pre-emption money as also (1/2)the without permission or orders of any Court and as such the suit stood dismissed in terms of trial Court decree dated 30-7-1977. In their reply the private respondents simply asserted that the execution has been validly completed. The learned Executing Court vide order dated 7-5-1994 dismissed the application simply on the ground that since copies of the judgments (i,e, judgment passed by the High Court and Supreme Court) have not been appended there is no ground for review and application was dismissed. The learned Additional District Judge, who heard the first appeal filed by the deceased vendee followed suit.
2. Learned counsel for the petitioners argues that withdrawal of the pre-emption money as well as '/5th amount was without leave of the Court and as such the suit stood dismissed in terms of the said decree. Learned counsel further contends that no permission was sought from the Supreme Court for withdrawal of the amount or for that matter for extension of time when the case ' was decided by the Supreme Court. Relies on the case of Ismail through his legal heirs and another v.
Muhammad Aslam and 2 others (PLD 1980 Lahore 104). Learned counsel for the respondents on the other hand argues that 'the appeal before the Supreme Court was governed by the Constitutional provisions and it was not necessary for the respondents to retain the deposit made by them in Court. Further contends that in any case the amount had been re-deposited and extention can be granted.
3. The facts of the case are admitted. The terms of the trial Court decree were complied with but then pre-emption money as also (1/5)th was withdrawn. There is of course force in the contention of learned counsel for the respondents that the maintainability of the appeal before the Supreme Court may not be dependent upon the deposit of said amount. However, the fact remains that it is not even plea of the respondents that they had withdrawn the amount with leave of the Court.
Needless to state that in the present litigation and at the stage when amount was withdrawn the only Court that could have been granted leave to withdraw the amount was Supreme Court.
However, there is not plea and no material on record that any leave was sought or granted. Even if it be assumed that leave was not required to withdraw the amount and that respondents could have withdrawn the same on their own, the fact remains that vide judgment dated 21-10-1989 of the Honourable Supreme Court it was trial Court decree that was restored. However, no attempt seems to have been made by the respondents to have sought extention in the time stipulated in the decree for deposit of pre-emption money. I may also state here that present petitioners were proceeded ex parte in the said appeal. Even when respondents had obtained the copy of the judgment on 4-11-1989, no attempt was made to seek extention in time for deposit or for that matter to obtain leave to make the deposit.
4. Learned lower Courts have, in the face of said admitted facts of the case, proceeded to ignore the same. To my mind the first duty of a Court executing pre-emption decree is to make check as to whether the pre-emption money has been deposited in terms of the decree sought to be executed, or not. Apparently this was not done. The result is that Executing Court proceeded to initiate process for delivery of possession of the land in execution of decree, when in terms of the very decree the suit filed by the pre-emptor stood dismissed. No Executing Court has the lawful authority to pass such an order.
5. Coming to the said second contention of the learned counsel for the respondents. There is no cavil with the proposition that in appropriate cases time can be extended. By now it is well-settled law that such extention can only be granted by a Court hearing the appeal or revision against the decree and of course by the Honourable Supreme Court while hearing the petition for leave to appeal or while passing the final judgment in the case of appeal. The Executing Court and by analogy the Court of appeal hearing the matter arising out of execution has no such jurisdiction for simple reason that the Executing Court cannot alter or amend the decree, particularly a decree for dismissal cannot be converted into decretal-holder of a suit by Executing Court.
6. For all that has been discussed above, this writ petition is allowed and the impugned orders passed by respondents Nos,1 and 2 are set aside. The result would be that learned Executing Court shall take immediate steps for restitution/restoration of whatever possession has been got delivered to the decree-holder by it to the petitioners. No order as to costs.