1. ' MUHAMMAD NAWAZ ABBASI, J.---This appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, has arisen out of an execution matter in a decree passed in the suit for specific performance of the contract.
2. ' Qaiser Ali Khan and others, respondents herein, filed a suit for specific performance of the agreement in respect of land measuring 888 Kanals situated in Village Sangra, Tehsil and District Kasur, against Muhammad Nazir and Abdul Aziz, the appellants herein, for the sale consideration of Rs,5,29,000 out of which a sum of Rs,4,76,000 was paid and only an amount of Rs,53,000 was outstanding. The suit was decreed and the learned Civil Judge at the time of passing the decree did not fix time for deposit of the outstanding sale consideration. The decree passed by the trial Court was challenged by the appellants in the High Court through Regular First Appeal bearing No,35 of 1992. In, appeal at admission stage, an order of maintaining the status quo was also passed. The appeal was subsequently dismissed on 15-10-1997 and the respondents-decree- holders applied to the Executing Court for grant of permission to deposit the remaining sale price of Rs,53,000. The appellants during the execution proceedings, brought to the notice of the Executing Court that the judgment passed by the High Court in Regular First Appeal was under challenge in the Supreme Court of Pakistan and the Executing Court postponed execution proceedings temporarily till 1-4-1998 to enable the appellants to produce the stay order if any, passed by the Supreme Court, but on failure of the appellants to produce any such order, the Executing Court vide order dated 13-4-1998 while proceeding further directed for the deposit of remaining sale price till 25-4-1998. The respondents-decree-holders deposited an amount of Rs,52,900 in the treasury on 24-4-1999 and produced receipt in the Court. The appellants moved an application on 25-4-1998 for recall of the order dated 13-4-1998 by virtue of which permission was granted to the respondents-decree holders to deposit the balance sale price. The respondents on coming to know that instead of Rs,53,000 an amount of Rs,52,900 was deposited, immediately moved an application for permission to deposit the deficient amount of Rs,100. The appellants at the same time filed another application for dismissal of the execution petition. The Executing Court disposed of above said applications vide order dated 23-5-1998 and the application wherein permission was sought by the decree-holders to deposit the deficient amount of Rs,100 of sale price, was dismissed with the observation that due to their own conduct, the decree-holders lost the right of execution of the decree and they could withdraw the amount already deposited by them. This order was challenged by the respondents through a civil revision in the High Court and a learned Single Judge vide judgment Dated 3-3-1999 allowed the revision petition with the following observation:-- "12. The learned Civil Judge was, therefore, competent under section 148, C.P.C. To grant extension in time. Coming to the ground for seeking permission, it is observed that in the first instance, the Court did not give direction for the deposit of Rs,53,000 and allowed deposit of Rs,52,900 which led to the mistake of shortfall of deposit by Rs,100. Secondly, there was a review application, asking for the review of the order of deposit of amount, and, therefore, while deciding this application, the Court could allow the deposit of shortfall as there was a prior approval in this regard through a separate application. Till the review application is decided, the Court could not possibly pass any order on the Miscellaneous Application. For the extension in time to deposit the shortfall of Rs,100. Similarly it could not be overlooked that the appellant had paid and deposited Rs,52,900 and the deficiency was of Rs,100 which was extremely nominal keeping in, view the amount of sale price. In exercising discretion, the smallness of the amount could not be over-looked as the interest of justice would have demanded that this short-fall be allowed to be deposited instead of rendering the entire effort of filing suit, passing decree and disposing of the appeal in futility. It would be a harsh penalty, if a man who remains successful up to the stage of Supreme Court and could not deposit a fraction of decretal amount, particularly because of the act of the Court, and because of the bona fide mistake, should be deprived of his right to reap the fruit of the decree. All principles of equity and justice would demand that the application for extension in time to deposit the shortfall should be allowed. The discretion in this case having been exercised fancifully and arbitrarily, the impugned order suffers from legal infirmity and jurisdictional error.
13. Resultantly, this revision petition is allowed, the impugned order is set aside, application for deposit of the shortfall in the decretal amount in the sum of Rs,100 is granted. The execution petition shall be deemed to be pending. The parties shall appear before the learned Civil Judge on 15-4-1999 who shall allow the decree holder/petitioner to deposit the amount of Rs,100 and proceed to execute the decree."
3. ' The appellants being aggrieved of the judgment of the High Court have filed this direct appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973.
4. ' Learned counsel for the appellants while placing reliance on Shah Wali v. Ghulam Din (PLD 1966 SC 983) has contended that undoubtedly the appeal is the continuation of the suit but in absence of a specific order, the operation of the decree passed by the Court of first instance is not automatically suspended on filing of an appeal. The learned counsel submitted that under Article 181 of Limitation Act 1908 the limitation for filing an execution petition is fixed as three years 'whereas in the present case the execution petition was filed after expiry of the prescribed period of limitation and thus was hopelessly barred by time. The learned counsel argued that time for filing execution petition would not be enlarged due to the pendency of appeal.
5. ' We have considered the contentions of the learned counsel in the light of law laid down by this Court in the above-referred judgment and find that the said judgment was passed in a suit for possession through preemption wherein time was fixed for deposit of pre-emption money by the learned trial Judge with specific direction that in case of non-deposit of the pre-emption money within the specified time, the suit would stand dismissed. We may observe that view taken in the above judgment was that in such events, the deposit may be made within a reasonable time from the date of appellate decree as it is more in consonance with reason and justice-which should be preferred so that inconsistencies are avoided and a successful preemptor is not deprived of fruits of his decree unreasonably.
6. ' The learned counsel also relied upon Shah Muhammad Khan v. Allah Diwaya (PLD 1961 Lahore 743) wherein it was held that Court could extend time for deposit of money under section 148, C.P.C.
7. And for noncompliance of terms of decree, it comes incapable of execution and thus Appellate Court may extend the time for payment of money if validity of decree is challenged in appeal. The question for examination before the Supreme Court was: ' "Whether extension of time could be granted to a successful preemptor on appeal against an order of refusal to extend the time for depositing pre-emption money when the original decree was not under appeal."
8. ' The Court in the light of circumstance of the said case reached the following conclusion:-- "for the pre-emptor's default in making payment of the correct amount within the time fixed by the appellate decree, his suit stood dismissed and there was no question of extension of the time involved, either by the, original Court or by the Appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed, therefore, the appeal was allowed and order passed by the High Court was set aside, and it was held that the respondents' suit stands dismissed, in terms of the decree of the Court of appeal."
9. In the above said case the Appellate Court had fixed time for deposit of the pre-emption money with the observation that the suit would be dismissed in case of default in the payment of pre- emption money within the time given while in the present case, no such time was fixed either by the trial Court or the Appellate Court for deposit of the remaining sale price, therefore, non-deposit of the remaining sale price till dismissal of Regular First Appeal by the High Court would have no' penal consequence. The respondents immediately on dismissal of the appeal by the High Court filed an execution petition and also sought permission from the Court of first instance for deposit of the remaining amount for execution of the decree, which was not deposited pending disposal of appeal in the High Court for the reason that due to the status quo order the execution of decree was not possible, therefore, the Court concetned allowed the necessary permission. The objection of the appellant that the execution petition having not filed within three years from the date of decree, therefore, notwithstanding the pendency of appeal it would become rime-barred, has no substance. The appeal being continuation of suit, the decree in the suit would only be finalized on the disposal of appeal as the decree of the Court of first instance would merge into the decree of Appellate Court which alone could be executed. However, till the time appeal or revision was not filed or such proceedings were pending and no stay order was issued, the decree would remain capable of execution but if the decree was under challenge in pending appeal or revision and was not executable, the decree ultimately passed by the decree of the Court of last instance in appeal or revision as the case may be, would be executed irrespective of the fact that the decree of the lower Court was modified, affirmed or reversed. Thus if a decree is under Challenge in appeal and cannot be executed, the limitation for filing an execution petition would not run against the decree- holder pending disposal of appeal. The decree in the present case was finalized on dismissal of Regular First Appeal by the High Court on 15-10-1997 and pending disposal of the appeal in which status quo order was passed, the decree could not be executed, therefore, execution petition was filed on 2-3-1998 which was not time-barred under Article 181 of the Limitation Act 1908. In the present case the decree-holder filed execution petition after disposal of appeal and if the date of passing decree by the trial Court was to be taken as starting point, the appeal would be bared by time but since the decree of the lower Court was under challenge and had not yet attained finality, therefore, the limitation for the purpose of filing execution petition would be enlarged. It may be seen that if no appeal is filed against the original decree, the decree shall attain finality on expiry of the period of limitation provided for filing an appeal and in such a case, the execution petition if is filed beyond the prescribed period, would be treated as barred by time but pending disposal of appeal, the decree would not be deemed to have attained finality, therefore, non-filing of execution petition in such a case within prescribed period under Article 181 of the Limitation Act, 1908, from the date of passing of the decree by the trial Court would not be barred by time and the period of limitation in such circumstances will be extended.
10. ' The law laid down by this Court in Shah Wali v. Ghulam Din (PLD 1966 SC 983) would be of no help to the appellants as the said case is distinguishable on facts from the present case.
11. ' The second contention raised by the learned counsel related to the grant of time to decree-holder for deposit of the remaining sale price and grant of further time for such purposes under section 148 of C.P.C. It has been argued by the learned counsel that if the decree-holder satisfies the condition regarding the deposit of outstanding sale price, the decree would become operative but if a default is committed in payment of the said amount in part or full as the case may be, the decree would become ineffective. The short answer would be that the Executing Court in such exceptional situation in a case in which the decree-holder under the direction of the Court deposits the sale price with a small deficiency due to the bona \fide mistake, can exercise the power under section 148, C.P.C. Read with section 151, C.P.C. For grant o further time to deposit the short amount.
12. We, may observe that for making good deficiency in decretal amount, equity and expediency can validly be attracted in extending time in exercise of discretionary powers under section 148, C.P.C. In the interest of justice.
13. ' In the case in hand, no such condition of dismissal of the suit for non-deposit or short deposit of remaining sale price within a specified time was attached by the trial Court in the original decree or the High Court in the appeal against the decree and thus in such circumstances, the Executing Court would be competent to grant time for short deposit if any and would not allow to defeat the fruit of decree for such reason.
14. ' Reference can be made to the following case-law on the subject:--- ' Shah Wali v. Ghulam Din (PLD 1966 SC 983) Muhammad Afzal v. Fazalul-Haq (PLD 1971 SC 162), Hadayat Ullah v. Murad Ali (PLD 1972 SC 69) and Said Alam Shah v. Jana (PLD 1991 SC 360).
15. The default of short deposit of Rs,100 was not wilful or in violation of any order of the Court, therefore, it would not operate bar the power as an Executing Court failed to exercise the discretion in the proper manner while holding that respondents due to short deposit of Rs,100 could not enforce the decree. This is to point out that the grant of permission to deposit the less amount of Rs,100 by enlarging the time under section 148, C.P.C. By the Executing Court would be the proper exercise of discretion.
16. ' For the foregoing reasons, we while upholding the judgment of High Court passed in its revisoinal jurisdiction, dismiss this appeal with no order as to costs.