' Briefly stated the facts of the case are that the petitioners filed a suit for pre-emption against the respondent, which inter alia, involved the Issue No,5 i,e, "Whether Rs,1,00,000, the sale price of the suit-land, was actually paid or fixed in good faith". According to the judgment and decree of the trial Court, the findings on this issue, as well as other material issues were recorded in favour of the petitioners, resultantly, the - suit was decreed on 8-10-1980 as follows:-- "For the reasons recorded in the above issues, I decree the suit in favour of the plaintiffs and against the defendant on payment of Rs,40,000 including 1/5 the pre-emption money if already deposited. The plaintiffs are directed to deposit this amount in the Court within fifteen days from today otherwise the suit will be deemed as dismissed. The parties are, however, left to bear their own costs."
' In pursuance of the aforesaid decree, the petitioners/plaintiffs, deposited the amount of Rs,40,000 within the time provided.
2. Against the above, the respondent preferred an appeal, and the learned Appellate Court, vide judgment and decree, dated 21-3-1982 reversed the finding of the trial Court on Issue No,5 and held as under:--- ' I am, therefore, of the view that the appellant has successfully proved that the sale price of the suit-land was Rs,1,00,000 which he actually paid to the vendor. The findings of the lower Court on Issues Nos.5 and 6 is therefore, set aside...."
' However, the appeal was accepted and the suit of the plaintiffs/petitioners was dismissed on account of the deficiency in the payment of the court-fee on the plaint; this judgment and decree was challenged by the petitioners through Civil Revision No,1460-D of 1982, on the question of the price, this Court concluded as follows:-- "2. Learned counsel for the petitioners does not dispute the finding of the learned trial Court regarding the pre-emption money...."
' This revision was, however, allowed on 8-11-1992, for non-suiting the plaintiffs, on account of the deficiency in the payment of court-fee, the case was remanded to the Court of appeal with the direction that it shall allow reasonable opportunity to the petitioners to make up the deficiency in court-fee for the suit. It was specifically directed in the remand order, that "the learned Appellate Court shall decide the appeal afresh without reopening the issues which have already decided by the said learned Court". The respondent filed a Review Petition No,37-C of 1992 before this Court, which was dismissed on 11-10-1993; his leave to appeal (C.P.S.L.A. No,1299/L of 1993), was also dismissed by the Honourable Supreme Court.
3. In the post remand proceedings, the Court of appeal vide order dated 16-12-1992, directed both the parties to provide the deficiency of the court-fee on the plaint as also the memo. Of appeal.
The plaintiffs complied with the order, but the respondent vendee failed. However, during the course of final hearing of the appeal petitioners attempted to argue the determination of the price, but the learned Appellate Court repelled their plea on the ground that such issue cannot be reopened. Anyhow, as the petitioners, had provided the court-fee on the plaint, but the respondent failed to do so on his memo. Of appeal, the appeal of the respondent was dismissed vide judgment and decree dated 14-9-1995. Civil Revision No,2025 of 1995, filed by the respondent, was also dismissed by this Court on 20-1-1997.
4. Therefore, the petitioners filed an execution application on 17-10-1997, in the execution proceedings, the respondent filed objections categorically stating, that the issue of the sale price of Rs,1,00,000 has been finally settled, as mentioned above, the petitioners, were bound to deposit the balance sale price of Rs,60,000, but till date no deposit has been made, resultantly, the decree cannot be executed. Instead of making the deposit even at this stage, the petitioners opted to resist the A application by taking up the plea, that because the judgment and decree of the learned Additional District Judge, dated 21-3-1982, which determined the issue of price, was set aside by this Court, vide judgment and decree dated 8-11-1992 in Civil Revision No,1460-D of 1982, therefore, the preemption amount remains Rs,40,000, which the petitioners, had already deposited in terms of the decree of the trial Court.
5. Through the impugned order, dated 13-3-1998, the learned Executing Court, has dismissed the execution application holding that the question of the price has been finally settled by the decree of the learner Appellate Court, dated 21-3-1982, which finding was affirmed by this Court in Civil Revision No,1460-D of 1982, this issue was further attempted to be agitated by the petitioners at the appellate stage in post remand proceedings, his plea was repelled by the Additional District Judge, vide judgment and decree, dated 14-9-1995. As after the final termination of the lis between the parties, vide judgment and decree, dated 20-1-1997, passed by this Court in Civil Revision No,2025 of 1995, the petitioners, have not deposited the balance amount of Rs,60,000, therefore, the decree is inexecutable. Aggrieved by the aforesaid order, the petitioners preferred an appeal, but without any success.
6. Learned counsel for the petitioners, has argued that the decree of the learned Additional District Judge, dated 21-3-1982, determining the price at Rs,1,00,000 was set aside by this Court, in Civil Revision No,1460-D of .1982, and resultantly, the original decree of the trial Court, stood restored, and the petitioners have already deposited Rs,40,000 in terms of the said decree within a period of 15 days, as directed, it is also argued, that the First Appellate Court, or even this Court in the first round of litigation, never specified the time in which the remaining amount of Rs,60,000 was to be deposited and the consequence to follow in failure, thereof, there was no clear order in this behalf, which the petitioners, have failed to comply; thus, their decree cannot be held in executable.
7. On the contrary, learned counsel for the respondent, has drawn my attention to the objections filed by the respondent, in which it is clearly mentioned, that the petitioners, have failed to deposit the amount of Rs,60,000. In reply the petitioners never endeavored to make the payment, rather resisted the application, questioning the determination of the sale price, thus, it is submitted that as the petitioners were never ready and willing to obey the decree of the Court of appeal dated 21- 3-1982, which was affirmed in Civil Revision No,1460-D of 1982, resultantly, their decree was rendered inexecutable.
8. I have heard the learned counsel for the parties. As regards the question about the determination of the sale price is concerned, the price was finally settled by the First Appellate Court', which issue was conceded by the petitioners before this Court in Civil Revision No,1660-D of 1982; while remanding the case, this Court had specifically observed that only the question of deficiency in the payment of court-fee, shall be decided by the Court of appeal, and no other issue shall be reopened, yet the petitioners agitated the issue of price in response to the objection of the respondent, which had already been conclusively decided. The petitioners, filed the execution application on 17-10-1997 i,e, almost after nine months of the final termination of the list between the parties in Civil Revision No,2025 of 1995, but without making the deposit of the balance amount of Rs,60,000; when the oLjcction was raised by the respondent, about the non-deposit, instead of seeking permission of the Court to do the needful rather he questioned the conclusive determination on Issue No,5. As is clear from the order, dated 13-3-1998, the petitioners were not even inclined to deposit the amount during the pendency of the execution proceedings. It may be pertinent to mention here, that in the memo. Of appeal against the order of the Executing Court dated 13-3-1993, the petitioners, have not set out a ground that they are prepared to deposit the balance consideration, rather they again questioned the determination of the sale price. In these circumstances, when the petitioners, were not prepared to pay the balance of the pre-emption price, how could a decree be executed in their favour.
8. The contention of the learned counsel for the petitioners, that as no time was specified in any decree directing them to deposit the said amount, and therefore, they were prevented to make the deposit, can be repelled on the following grounds:-- ' Firstly, this plea of the petitioners, is inconsistent and destructive of their stand in reply to the objection of the respondent and their conduct before the two forums below; 'Secondly, after the termination of the lis on account of the judgment of this Court dated 20-1-1997 in Civil Revision No,2025 of 1995, the decree of the trial Court except the determination of the sale price stood revived; under this decree when the time of payment was not modified by the higher forums remained fifteen days, therefore, the petitioners, were obliged to make the payment in terms of first decree i,e, fifteen days. This also was the 'reasonable time' in which the deposit should have been made in view of the law laid down in Muhammad Shamoon v. Mohabat Khan PLD 1984 SC (AJ&K) 94, the relevant paras. Of the judgment read as follows:--- "11. In cases where the appellant obtains a stay or.Der from the Appellate Court stopping the operation of the order under appeal during the pendency of the appeal, the stay order suspends the operation of the order of the original Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of the performance expires during , the. Suspended period (as is before us) the party, that had to perform the act on that date, cannot be visited with a penalty for not having performed it during the time when its operation was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree with all its contents and provisions, the time for the performance of the act which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order: nevertheless we think that it would be but fair that the original time allowed to a party by the trial Judge should start running afresh from the date his appeal stands dismissed putting an end to the stay order.
12. In the instant case, the decree against the respondent was passed by the sub-Judge on 31st of December, 1973, subject to the deposit of Rs,8,000 as purchase price on or before 31st of January, 1974. Obviously, 30 days were allowed to him for making the deposit of the decretal amount.
Therefore, after dismissal of the appeal on 3rd of May, 1977, on the principle of 'reasonable time' the utmost concession that can be allowed to the appellant who had failed to make the deposit within the time specified in the decree granted to him by the trial Court and the Appellate Court had also granted him no fresh time, the time for depositing the decretal amount would be considered as the same as was fixed by the trial Court but it would be reckoned from the date the appeal stands dismissed. This, to us, would be fair and also reasonable time for a party."
' Thirdly, the petitioners at no stage applied to any forum, including the Executing Court to permit them for the deposit of the balance pre-emption amount, on the contrary, they raised frivolous plea, against the conclusively determined issue, which as per their own admission before this Court as highlighted in the decision in Civil Revision No,1460-D of 1982 was finally settled; and ' Lastly, the decree in favour of the petitioners, was conditional and they, as elaborately mentioned earlier, were never ready and willing to perform their part of the obligation under the decree. The offer made before this Court for the deposit, is of no value, because the decree already stands annulled, frustrated and nugatory, such decree cannot be revived on account of a vested right having been created in favour of the respondent due to the lapse of time and the conduct of the petitioners.
10. In the light of above, I do not find any error either legal or factual in the orders impugned before this Court, calling for interference in the revisional jurisdiction. This revision, thus, has no merits and is hereby dismissed.