TALAAT QAYYUM QURESHI, J.- Syed Badsha Gul predecessor of respondents, purchased land measuring 4 Kanals, 1 Marla vide Mutation No. 6767 attested on 19.9.1979. The sale was pre-empted by the petitioners/plaintiffs by filing suit for possession through preemption in the Court of learned Civil judge Charsadda. The said suit was resisted by the respondents/defendants by filing written statement. The learned Trial Court after framing as many as 11 issues, recording pro and contra evidence of the parties decreed the suit by fixing Rs.20,000/- as sale consideration vide judgment and decree dated 17.4.1984. The petitioners/plaintiffs had already deposited Rs.5,000/- as pre- emption money and they were directed to deposit the remaining amount of Rs.15,000/- within one month of the order. Parties being not satisfied with the judgment and decree filed appeals. The petitioners/plaintiffs were not satisfied with the fixation of Rs.20,000/- as sale consideration, therefore, they filed Appeal No. 131/13, whereas the respondents/defendants being aggrieved of the judgment and decree against them filed Appeal No 140/13 of 1984. The learned Addl. District judge disposed of both the appeals through single judgment dated 1.10.1985. The appeal filed by the petitioners was dismissed for non-deposit of remaining sale consideration within the prescribed time. Being not contended with the Appellate Court judgment/decree the petitioners have filed the revision petition in hand.
2. Mr. Abdul Bari Khan Khalil, Advocate the learned counsel representing the petitioners argued that the petitioners were not liable to deposit the remaining sale consideration as per directions of the Trial Court because they had impugned the said judgment/decree before the Appellate Court.
3. It was also argued that the respondents had failed to prove sale consideration of Rs.20,000/- but the learned Trial Court fixed the sale price though on the basis of one year's average Ex.P.W.1/2, but the said document showed that the average price was Rs.4480/-.
4. It was also argued that the learned Appellate Court had committed material irregularity while dismissing the appeal on the preliminary objections raised by the other side. The appeal should have been decided on merits in accordance with law which was not done.
5. On the other hand Mr. Laved A.I Khan, Advocate the learned counsel representing the respondents argued that the decree was passed in favour of petitioners/plaintiffs on the condition of deposit of remaining amount within one month, which expired on 16.5.1984. As per provisions of Order 20, Rule 14, CPC the decree on non-deposit of the pre-emption money was to be dismissed which was rightly dismissed by the learned Appellate Court.
6. It was also argued that there was no application filed by the petitioner/plaintiff before the Appellate Court for suspension of the judgment and order passed by the learned Trial Court, therefore, in absence of any restraining orders, the petitioners were obliged to deposit the pre- emption money within the time prescribed by the Court, which was not done and even the pre- emption money has not been deposited till date.
7. I have heard the learned counsel for the parties and perused the record.
8. Admittedly, a conditional decree was passed in favour of petitioners. The condition imposed was that the petitioners/plaintiffs were directed to deposit the remaining ' pre-emption amount within one month from the date of order. The impugned judgment and decree in this case was passed on 17.4.1984 and it was incumbent upon the petitioners/plaintiffs to have deposited the remaining preemption amount within one month. In case of non-deposit of the amount, the suit filed by them would stand dismissed with costs as is enunciated under Order 20, Rule 14(b), CPC, which Is reproduced hereunder for convenience:- "direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."
9. This proposition came-up for hearing before the august Supreme Court of Pakistan in Lutaf A.I v.
Abdul Ghafur and others (1998 SCM R 1121), in which their Lordships while quoting Order 20, Rule 14, CPC held:- "The relevant part of the order of the Trial Court was to this effect. 'If the plaintiff fails to deposit the amount his suit shall stand dismissed with costs". Keeping in view the words of this order it would take effect automatically and in case of non-deposit of the pre-emption amount the suit per force of the order shall stand dismissed. The legal position that filing of appeal would by itself not stay/suspend the operation of the judgments, stands established. Thus the decree in favour of the petitioner had become ineffective and in-operative and no appeal or revision could either be moved or entertained in such a state of record. It is interesting that no application has so far been made for extension of time and even if such an application had been moved that could not have been entertained as the Courts had become functus officio to entertain such an application. It is also provided under Order XX, Rule 14, CPC, that if the pre-emption money is not paid within time specified in the judgment then the suit should be dismissed. Therefore, argument from the petitioner's side that the case be remanded so that this aspect is agitated before the Appellate Court is misconceived as on account of the legal position stated above it would amount to futile exercise specially when no request for extension of time in this connection has so far been made.
The learned counsel referred to 1991 SCM R 2149 and 1995 SCM R 105 to support his stand. These judgments proceed on distinguishable facts and have no resemblance with the facts of this case.
In the former case interim relief for stay had been sought and in the latter it was held, "however, neither a Trial Court nor an Appellate Court can extend time for deposit of pre-emption money once the matter stands disposed of and is no longer pending before it. In such an event the direction contained in the original decree to the effect that in case of failure to deposit the pre- emption money the suit shall stand dismissed, becomes effective."
10. Similarly in another case reported as Sulleh Singh and others v. Sohan Lal and another (AIR 1975 S.C. 1957) it was held that when the decree-holder !Lad failed to abide by the directions given by the Trial Court to deposit the preemption money, those directions were mandatory under the provisions of Order 20, Rule 14, CPC and due to non-deposit of pre-emption money, suit filed by the plaintiffs was dismissed.
11. Since no application for suspension of the impugned decree was submitted before the Appellate Court and mere ) filing of the appeal under Order 41, Rule 5, CPC would not operate as stay of the proceedings under decree, therefore, the decree in favour of petitioner had become ineffective and in-operative due to non-deposit of pre-emption money within the period mentioned in the decree, therefore, no appeal or revision could either be moved or entertained in such a state of record. The learned Appellate Court while appreciating the law correctly has rightly dismissed the appeal. The impugned judgment/decree passed by the learned Appellate Court is based on proper appreciation of law, hence need no interference. Resultantly, the revision petition in hand is dismissed with not orders as to costs.
Re.