This second appeal assails judgment and decree dated 11.4.2003 passed by Additional. District Judge, Sheikhupura, whereby respondents were allowed to deposit an amount of Rs, 40,000/- more, towards sale price payable under the decree dated 5.1.1993 passed by the Civil Judge, Sheikhupura.
2. Precisely, facts relevant for the disposal of this appeal are that the respondents filed a suit for specific performance of the agreement to sell dated 20.12.1988 and 15.2.1989 regarding land measuring 173 Kanals 11 marlas being 7/8 share out of land measuring 198 Kanals 12 marlas of village Dhanat Pura, Tehsil & District, Sheikhupura, for an amount of Rs, 8,38,500/-, against the appellant, who at the time of its exaction, received an amount of Rs, 3,00,000/-, as earnest money.
The appellant, failed to perform his part of. contract which necessitated issuance of notices by the respondents dated 13.1.1990, 15.1.1990 and 22.1.199Q which were received by him and on his failure to do the needful under the agreement to sell, suit in hand was filed.
3. The appellant, being a defendant in the suit controverted the assertions in the plaint and pleaded in his written statement that no doubt agreement to sell was executed by him but respondent failed to have sale-deed executed after payment of remaining sale price and sale- deed manner urged for dismissal of the respondent's suit. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The respondents evidence was being recorded when on 16.12.1992, the appellant alongwith his counsel appeared before the trial Court and showed his willingness to perform his part of contract under the agreement dated 20.12.1988.
The learned trial Judge, who was seized of the matter, recorded statement of the appellant/defendant which reads as under:-- "I am ready to perform my part of contract. I am ready to execute the sale-deed. The suit is admitted. I have no objection if the suit is decreed. Further added that a sum of Rs, 40,000/-is lying with the plaintiffs for the deposit of the mortgage money, which is the charge on the suit land, which will be got redeemed by the plaintiffs. There is another charge on the suit land a sum of Rs, 12,000/- of the Agricultural Development Bank of Pakistan, which the plaintiffs can also deduct from the balance consideration amount."
4. After recording statement of the appellant/defendant, statement of Bashir Ahmad, plaintiff and his counsel was recorded which is reproduced for ready reference:-- "It is stated that the defendant is duty bound to get the property redeemed and alienate the disputed property free from all encumbrance vice agreement dated 20.12.1988. The defendant 'refused to execute the sale-deed, therefore, as per agreement the entire expenses of registration should be born by the defendant. However, the plaintiffs are prepared to fulfil all the terms and conditions of the agreement and get the sale deed registered."
5. On the next date of hearing trial Court after hearing the parties, decreed the suit of the respondents vide its judgment and decree dated 5.1.1993, on the basis of compromise between the parties and directed the respondents to deposit remaining consideration out of Rs, 8,38,500/- besides' which, the plaintiff was held to be entitled to deduct Rs, 40,000/- + Rs, 12,000/- which were out standing against the appellant and one Ali Muhammad of the Agricultural Development Bank of Pakistan.
6. The respondents/plaintiffs/decree-holders were not satisfied with the decision of the trial Court dated 5.1.1993, consequently they filed an appeal before this Court (RFA No, 12/2003) which was admitted to regular hearing on 25.1.1993 and operation of the impugned decree was suspended till the 'next date of hearing. Sale-deed first appeal, matter regarding confirmation of stay (C.M. No, 3- C/1996) was again fixed before an Honourable Division Bench confirmed the status quo order with record to possession, subject to deposit of an amount of Rs, 5,38,500/- with the trial Court on or before 31.1.1997. This order is reported to have been complied with by the respondents. At once stage, FRA No, 12/1993 was dismissed for non-prosecution on 31.12.2001 but was restored on 2.7.2002.
The appellant challenged the restoration order of appeal before the Hon'ble Supreme Court of Pakistan but remained unsuccessful. It so happened that pecuniary jurisdiction of District Court was increased, consequent to which RFA No, 12/1993 was sent to the learned District Judge, Sheikhupura, for its decision in accordance with law vide order dated 17.10.2002.
7. In post remand proceedings, the appellate Court accepted appeal of the respondents and decree already passed in the terms of agreement of sell, was varied, allowing the respondents to deposit another amount of Rs, 40,000/- towards the sale consideration, already deposited by them.
8. The appellant had not filed any appeal against the original judgment and decree of the trial Court, aggrieved of the permission to deposit another amount of Rs, 40,000/- to the respondents has filed this second appeal, seeking dismissal of respondent's suit for non-compliance of terms and conditions of the decree dated 5.1.1993, of the trial Court.
9. Learned counsel for the appellant submits that decree dated 5.1.1993 directs the respondents/plaintiffs to deposit the decretal amount till 4.2.1993 and they did not comply that decree and on the strength that decree, their suit stood dismissed because that decree contained a direction that in case, the respondents failed to deposit this amount till 4.2.1993, their suit will, automatically, stand dismissed. He further submits that time fixed by a decree, which was not complied with, suit of the respondents' stood dismissed and there was no lis pending in which the appellate Court could grant the respondents more time for deposit. Learned counsel for the appellant heavily relied upon the case of Shah Wali vs. Ghulam Din alias Gaman and another (PLD 1966 Supreme Court 983) to contend that after passing of the decree, Court becomes functus officio and no extension could be granted to the respondents. Conversely, the learned counsel for the respondents urged that they have not been granted any extension and as a matter of fact, the appellate Court finding that the amount deposited by them was short, further deposit has been ordered which could be done by the appellate Court while exercising its powers in appeal against the final decree of the trial Court. He also contends that decree passed by the trial Court on 5.1.1993 was suspended by a Hon'ble Division Bench of this Court vide orders dated 25.1.1993 passed in FRA No, 12/1993 and subsequently status quo order in their favour was confirmed subject to deposit of Rs, 5,38,500/--till 31.1.1997. According to him, this order has been complied with and on receipt of appeal by the Additional District Judge, it was competent to further adjustment of sale price and no illegality has been committed by the appellate Court for interference in second appeal.
10. I have heard the learned counsel for the parties and have examined the record, appended herewith. No question of extension of period for deposit of decretal amount is involved sale-deed case, as the trial Court was neither moved sale-deed behalf nor any order was passed by it. Order directing the respondents to deposit another amount of Rs, 40,000/- towards the sale price is an appellate order which could have been passed by it, as the appeal was directed against the decree dated 5.1.1993. It is a settled proposition of law that the appellate Court while hearing appeal against the decree of the trial Court, exercises the same jurisdiction which vested in the trial Court and lis becomes open, without any restriction placed by the decree, appealed against. Even the judgment relied by the appellant is Shah Wali's case supra' delivered by the Hon'ble Supreme Court of Pakistan in a per-emption matter, holds that appellate Court is competent to grant further time to deposit, as determined by it. According to calculations by appellate Court which has not been disputed before me, another of Rs, 40,000/- was payable by the respondents/plaintiffs, which has been allowed to be deposited. There is no infirmity, legal or otherwise in the decision of the First Appellate Court, who has exercised its jurisdiction within the framework of his authority provided by law. No other law point is involved sale-deed appeal, hence, it has no merit in it and is accordingly, dismissed with no order as to costs.