MUHAMMAD FAZAL ZULLAH, J.-This Execution Second Appeal has been referred to a larger Bench to resolve the conflict of authority on the question as to whether in pre-emption cases payment of purchase money out of Court can be considered as in compliance of the provisions contained in Order XX, rule 14, C. P. C. In Painda Khan v. Tiwana and another (PLD 1962 Lah. 92) it was held that such payment offends against provisions of the rule, while in Noor Ahmad and another v.
Muhammad Ramzan and another (PLD 1973 B J 42) although it was observed that such payment could not be in strict compliance of the terms of the decree; if the same has been certified by the Court, it would be sufficient compliance; because to hold otherwise would amount to giving too much importance to a mere technicality. Both these cases were decided in Single Bench.
2. It is necessary to state briefly the facts and circumstances giving rise to the controversy in the present case. Ghulam Mohy-ud-Din appellant and Muhammad Bakhsh respondent, two rival pre- emptors, instituted separate pre-emption suits, which after consolidation were decreed on 21-11- 1968, as a result of compromise. It was ordered that Muhammad Bakhsh was to deposit the balance purchase money upto 21-12-1968, failing which his suit would be deemed to have been dismissed. Alternative decree was passed in favour of Ghulam Mohy-ud-Din, directing him to deposit the amount thereafter upto 21-1-1969, failing which his suit would also be deemed to have been dismissed. Ghulam Mohy-ud-Din made a formal application on a printed form on 17-1-1969 informing the Court that the first pre-emptor (Muhammad Bakhsh) did not make the deposit and thereafter he having made the requisite deposit, the warrant for possession be issued in his favour.
Some Court official made a note on 18-1-1969 that there was no entry in the record with regard to the deposit of purchase money from 21-11-1968 to 21-12-1968. On this the Court passed an order on the same day directing issuance of warrant for 15-3-1969. On the said date the Presiding Officer was on leave. Case was adjourned to 10-5-1969. There is an order/note in the order sheet of 9-5- 1969 to the effect that the first decree-holder has paid the amount in Court, therefore, the execution could not proceed. However, on the adjourned date, i.e., 10-5-1969 notice was ordered to be issued to Muhammad Bakhsh. Both the pre-emptors then seriously contested each others position whereupon two issues were framed
(i) whether the first decree-holder had deposited the amount; and
(ii) whether the decree in favour of the first pre-emptor could not be executed; evidence was recorded.
Muhammad Bakhsh in his statement produced receipt Exh. P. I showing that Ghulam Haider vendee had received the amount. And Ghulam Haider vendee in a similar statement admitted the receipt of the amount through receipt Exh. P.
1. The learned Executing Court relying on the receipt Exh. P. 1 and also the fact that Ghulam Haider vendee had admitted the receipt of the amount on 30-11-1968, held on 7-3-1970 that the amount had been paid before the due date, therefore the decree in favour of Muhammad Bakhsh, as against that of Ghulam Mohy-ud-Din was executable. It may .Be mentioned here that at this stage the material in favour of Muhammad Bakhsh consisted of the receipt Exh. P. 1, showing payment out of Court to the vendee and an application purported to have been filed on 30-11-1968 before the trial Court seeking attestation of the receipt. On this application there 'is an order purported to have been made by the Judge (on the same day after recording the admission of Ghulam Haider vendee) to the effect that the payment was certified and that a note be made in the relevant register. On appeal the case was remanded with a direction to record evidence on the question of payment. During the remand proceedings Ghulam Mohy-ud-Din took a strong position and led evidence to show that the money was not paid by Muhammad Bakhsh, as asserted by him, prior to the due date and further-that attempts were being made by Muhammad Bakhsh and Ghulam Haider to collect stamps etc. On 20/21-1969, i.e., a month after the due date. Muhammad Bakhsh relied on the earlier statements and the receipt Exh.
P.
1. The learned Court also examined the Nazar who deposed that an entry at Serial No. I11 in the relevant register noting aforesaid payment, was in his hand. Crossexamination on this witness was directed with an object to show that the attestation on receipt Exh. P. 1, purported to have been made by predecessor Civil Judge, was in fact not made in the presence of the witness. As a result of this second round of litigation on ~ the question of payment another learned Judge, without going into the controversy as to whether in fact the payment was made to the vendee Ghulam Haider by Muhammad Bakhsh, assuming the same to have been made but out of Court, relying on the ruling in the case of Painda Khan, held on 28-6-1971, that the said payment being against the provisions of Order XX, rule 14, C. P. C. Could not be recognized. Accordingly Ghulam Moby-ud-Din, regarding whose payment there was no dispute, was held entitled to get his decree executed. This time the matter was taken in appeal by Muhammad Bakhsh and the case was again remanded.
The learned lower Appellate Court felt that the `material on the record does not lead to a decisive conclusion' on question of fact and that a `further probe was necessary'. It was observed in the remand order that "the receipt Exh. P. I simply bears attestation by the Presiding Officer without telling that the payment had been made in the Court in his presence. It should not, therefore, be given undue importance. Of course if it is corroborated by the entry in the register of suits, the situation might improve in favour of the appellant. If it is thought worthwhile to examine the then Presiding Officer, who resorted to this unusual procedure and became almost a witness by having attested a private document, the appellant may be allowed an opportunity". Earlier same criticism was made with regard to the entries in the register and the Kafiat by the Ahlmad.
3. In the present, third round in the execution, yet another learned Civil Judge without paying much attention to the directions in the remand order with regard to the further probe into the factual aspects of the case held that payment out of Court, as alleged in this case, was lawful because it was so held in the case of Noor Ahmed. It appears that before the decision in this third round on 27-11-1973, the aforesaid Single Bench ruling having already been published in the P. L. D. The learned Judge considered it enough to cite and quote from the said ruling and decide the controversy accordingly.
4. Ghulam Mohy-ud-Din again filed the first appeal which was dismissed after making reference to the attested receipt Exh. P. 1 and the separate order dated 30-11-1968 containing the attestation; but the lower appellate Court's judgment is essentially based on the ruling in the case of Noor Ahmed. The further reliance by the learned Additional District Judge on the provisions of Order XXI, rule 2, C. P. C. Is, as would be presently shown, obviously misplaced.
5. In this second appeal both the learned counsel except for the last alternative plea from the respondent's side relating to the so-called "act of Court" regarding the "attestation of payment made out of Court", argued on the various aspects of the case only in so far as the legal controversy is concerned.
6. Rule 14 of Order XX, reads as follows :-..
"14. Decree in pre-emption suit.-(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchases money has not been paid into Court, the decree shall-
(a) Specify a day on or before which the purchase-money shall be so paid ; and
(b) 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) ate not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,
(a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (I) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and
(b) if and in so far as the claims decreed are different in decree, that the claim of the inferior pre- emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions."
7. Both the learned counsel referred to the provisions contained in rules 1 and 2 of Order XXI, in one context or the other. The same also needs to be reproduced.
"I. Modes of paying money under decree.-(I) All money payable under a decree shall be paid as follows, namely :
(a) into the Court whose duty it is to execute the decree ; or
(b) Out of Court to the decree-holder (through a bank or by postal money order or evidence by writing signed by the decree-holder or his authorized agent) ; or
(c) Otherwise as the Court which made the decree directs.
(2) Where any payment is made under clause (a) of sub-rule (I), notice of such payment shall be given to the decree-holder.
2. Payment out of Court to decree-holder.-(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) (Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree)."
For comparison sake it is necessary to notice some other similar provisions of the Code which relate to deposit in and/or payment out of Court.
8. Rules 2, 3 and 4 of Order XVI provide for the expenses of witnesses to be paid into Court or tender of the expenses to the witnesses and provide for the procedure where insufficient sum had been paid in. Rule 2 provides that, a party applying for summons shall pay into Court such sum of money as' appears to the Court to be sufficient to defray the expenses. Rule 3 is an extension of rule 2 in that the sum "so paid into Court" shall be tendered to the person summoned at the time of serving the summons. Sub.Rule (1) of rule 4 empowers the Court to direct such further sum to be paid to the person summoned where it appears that the sum earlier paid into Court is not sufficient to cover the expenses. , Sub-rule (2) of rule 4 empowers the Court to direct front time to time further payment into Court of such sum as is sufficient to defray the expenses in-case it becomes necessary to detain a witness for more than one day. And "in default of such deposit being made", the Court can order the sum to be levied by attachment and sale of immovable property of the party concerned or to discharge the witness without requiring him to give evidence.
9. Some provisions of Order XXI with regard to payment of money have already been noted: There are many more which deal with similar questions. Rule 33 of Order XXI essentially deals with execution of decree against a husband for restitution of conjugal rights, but in sub-rule (2) thereof it is provided that where the Court has made an order for the execution of a decree for restitution of conjugal rights under this rule, it may direct that in the event of the decree not being obeyed within such period as may be fixed in that behalf, "the judgment-debtor shall make to the decree- holder such periodical payments" as may be just and if it thinks fit require that the judgment debtor shall to its satisfaction "secure to the decree holder" such periodical payments. Sub-rule (4) of rule 33 further provides that the money ordered to be paid under that rule would be recoverable "as though it were payable under a decree for the payment of money".
10. Rule 38 of Order XXI provides what a warrant of arrest qua execution of money decree should contain-every warrant for arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay together with the interest thereon and the cost, if any, to which he is liable "be sooner paid". In that connection rule 39 makes provision for subsistence allowance. Under sub-rule
(1) thereof, no judgment-debtor can be arrested unless and until the decree-holder ".`pay into Court" such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor. Sub- rules (3) and (4) make further provision with regard to the monthly allowance fix.-d by the Court and direct that the same shall be "supplied by the party on whose application the judgment- debtor has been arrested"-"in advance before the first day of each month". The first payment shall be made "to the proper officer of the Court" for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison and the subsequent payment, if any, shall be made "to the officer incharge of the civil prison".
11. Rule 55 of Order XXI deals with removal of attachment after satisfaction of decree and provides that where the amount decreed and costs etc. "are paid into Court", or satisfaction of the decree is otherwise made through the Court or certified to the Court, or the decree is set aside, or reversed, the - attachment shall be deemed to be withdrawn. And according to rule 56, if the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that the same or a part thereof sufficient to satisfy. The decree "be paid over to the party" entitled under the decree to .Receive the same. Rule 64 empowers the Court to order property attached to be sold and proceeds to be paid "to person entitled" under the decree to receive the same.
12. In case of a sale by public auction of immovable property, Order XXI, rule 77 provides that the "price of each lot" shall be paid at the time of sale as soon as after the officer or the other person holding the sale directs and in default of payment the property shall forthwith be resold. The officer or other person holding the sale shall on the "payment of the purchase money" give a receipt for the same. Similarly under rule 84, on every sale of immovable property the person declared to be the purchaser is required to "pay immediately after such declaration a deposit of twenty-five per cent on the amount of his purchase money to the officer or other person conducting the sale and in default of such deposit, the property shall forthwith be re-sold". And rule 85 is extension of rule
84. It provides that the full amount of purchase money "shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property". This is of course subject to the advantage of set-off under rule 72. Rule 89 confers right on a person owning the property or holding an interest therein by virtue of title acquired before sale of immovable property in execution of a decree to apply for setting aside the sale "on his deposit" in Court for payment to the purchaser a sum equal to five per cent. Of the purchase money and for payment to the decree- holder the amount specified in the proclamation of sale. It is important to note. That under rule 92, if the aforementioned deposit is made within thirty days from the date of the sale, the Court is required to make an order setting aside the sale. And under rule 93 where a sale of immovable property is set aside under rule 92, the purchaser "shall be entitled to an order for repayment of his purchase money" against any person to whom it has been paid.
13. Order XXIV in particular deals with "PAYMENT INTO COURT". Rule 1 thereof permits the defendant in a suit for recovery of debt or damages to deposit "in Court such sum of. Money as he considers a satisfaction in full of the claim". Under rule 2 notice of such deposit shall be given to the plaintiff and the amount so deposited unless the Court otherwise directs, shall be paid "to the plaintiff" on his application. Rule 3 bars payment of interest to the plaintiff on any sum "deposited by the defendant from the date of the receipt of the notice under rule 2. Rule 4 provides for the payment of costs of .The suit by, the plaintiff under certain conditions on his acceptance of tile amount deposited by the defendant.
14. Under Order XXVI, rule 15 -a Court is empowered to order a party seeking the issuance of commission to pay into Court such sum as it thinks reasonable for the expenses of the commission.
15. It is provider; in Order XXXIV, rule 2 that if the plaintiff succeeds in a suit for foreclosure, the Court shall pass a preliminary. Decree directing that if the defendant pays into Court the amount due and other amounts including cost;, charges, interest etc., the plaintiff shall deliver all documents in his possession or power relating of mortgaged property. It is also provided that if payments are not made on or before the date so fixed, within the stipulated period, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all rights to redeem the property. The Court has further been empowered that on good cause shown and upon, terms to be fixed by the Court from time to time the period for payment of the amount can be extended. And under rule 3 Order XXXIV, it is provided that if the defendant makes payment into Court of all amounts due from him, the Court shall pass final decree ordering the plaintiff to deliver up the documents referred to in the preliminary decree. Some consequential orders can also be passed. And sub-rule (4) of rule 3 empowers the Court that when payment in accordance with sub-rule (t) has not been made the Court shall on application made by the plaintiff to this behalf pass a final decree. Under rule 4, in a suit for sale, if the plaintiff succeeds the Court is empowered -to pass similar orders as are permissible under rule 2 of Order XXXIV. It is specifically provided therein that the proceeds of the sale after deduction of the expenses of the sale "be paid into Court" and applied to payment of what has been found or declared under or by the preliminary decree as due to the plaintiff. In the sine manner sub-rule (3) of rule 4 provides that in a suit for foreclosure in the case; of an anomalous mortgage, if the plaintiff succeeds the Court may, at the instance of any party to the suit, or any other person interested in the mortgage-security or the right of redemption pass a like decree in such terms as it thinks fit "including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale".
16. Provisions of rule 5 of Order XXXIV are of. Great significance in the context of the present discussion, because, it contains a considerable number of the words and expressions , relating to payments. It deals with final decree in a suit, for sale and provides that where on or before the date fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) thereof "the defendant makes payment into Court" of all amounts due from him, the Court shall, on his application, pass a final decree and if such decree has been passed, an order directing the plaintiff to deliver the documents referred to in the preliminary decree. And in sub-rule (2) it is provided that "where the mortgaged property or part thereof has been sold in--pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule unless the defendant, in addition to the amount mentioned in sub-rule (1) deposits in Court for payment to the purchaser, a sum equal to five per cent. Of the amount of purchase money, paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into Court by him together with a sum equal to five per cent thereof."
Sub-rule (3) of rule S is not of less importance. It contains the penalty clause and provides that where payment in accordance with sub-rule (1) has not been made, the Court shall on application made by the plaintiff in this behalf, pass a final decree.
17. In inter pleader suit Order XXXV, rule 2 provides that "where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it, before he can be entitled to any order in the suit".
18. Under Order XXXIX which deals with temporary injunctions and interlocutory orders, in rule 9 thereof provision has been made for putting a party in immediate possession of land in those cases where land paying revenue to Government or a tenure liable to sale, is the subject matter of a sale. It provides that if the party in possession of such land or tenure neglects to pay the Government revenue or rent due to the proprietor of tenure and consequently the land or tenure is ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale be put in immediate possession of the land or tenure and the Court can in its decree award against the defaulter the amount so paid.
19. Under Order XXXIX, rule 10, if , the subject-matter of a suit is money or some other thing capable of delivery and any party to the suit admits that he holds such money or other thing a9 trustee for another party, or that it belongs or is due to the other party, the Court may order the same "to be deposited in Court" or "be delivered to such last named party".
20. Under. Order XLV, which deals with appeals to the Supreme Court, security, and certificate, the deposits are required to be made on grant of a certificate to. File an. Appeal. Rule 7 thereof provides that on the grant of a certificate the applicant shall within specified time furnish security and "deposit the amount required to defray the expenses of translating, transcribing . . . . . "
Additional security and deposits can be demanded under rule 10.
21. In the Punjab Pre-emption Act, 1913 section 22 thereof provides that in every suit for pre-emption the Court shall at, or, at any time before, the settlement of issues. Require the plaintiff to deposit in Court such sum as does not in the opinion of the Court exceed one-fifth of the probable value of the land or the property or require the plaintiff .To give security to the satisfaction of -the Court for the payment. Section 22 also provides that if the plaintiff fails to make the. Deposit or furnish the security mentioned above his plaint shall be rejected and if any such sum so deposited is withdrawn by the plaintiff even then the suit shall be dismissed.
22. Before discussing the implications of various words, expressions and phrases used in the Code of . Civil Procedure in connection with payment and deposit of sums, it is essential to state the history of the provisions relating to payment of sums. Under orders and decrees of the Court including those relating to pre-emption, as traced by Mr. Allah Wasaya. Punjab Laws Act IV of 1872 in its section 18 provided. That the decree shall specify a day on or before which purchase money shall be paid. And if the purchase money is not paid before the sunset on that date, the decree shall become void and the plaintiff shall lose his right of pre-emption over the property to which it relates. Punjab Laws (Amendment) Act VII of 1878 substituted the existing provisions in this behalf - and enacted as 16-A that when any suit is instituted under section 16 the Court may do its own discretion require the plaintiff to pay into Court the price or market value of the property . . . . . And if such requisition is not complied with in such time as the Court directs, it may reject the plaint.
Section 17 provided that if the Court finds for the plaintiff the decree shall specify a day not being a holiday on or before which purchase money . . . ., . Shall be paid. In section 18 it was provided .That if such purchase money or amount is not paid into Court before it rises on that day the decree shall become void and the plaintiff shall,- so far only as relates to such sale . . . . . Lose his right of pre- emption over the property to which the decree relates.
23. These provisions were repealed by section 2 of the Punjab Preemption Act of 1905 which itself was replaced by Act I of 1913.
24. The relevant law as contained in the Code of Civil Procedure has also undergone some changes. In section 214 - of Act, XIV of 1882 it wasprovided that when the suit is to enforce a right of pre-emption in respect of a particular sale of property, and the Court finds for the plaintiff, if the amount of purchase money has not been paid into Court the decree shall specify a day on or before which it shall be so paid and shall declare that on payment of such purchase money, together with the costs, if any, decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not paid, the suit shall stand dismissed with costs.
25. Section 257 provided that all moneys payable under a decree shall be paid (a) into the Court whose duty it is to execute the decree, or (b) out of the Court to the decree-holder, or (e) otherwise as the Court which made the decree directs. Section 258 laid down certain conditions for payment out of the Court. It provided that if any money payable under a decree is paid out of the Court or the decree is otherwise adjusted in whole or in part, to the satisfaction of the decree-holder, or if any payment is made in pursuance of an agreement of the nature mentioned in section 257-A, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree. The judgment-debtor also may inform the Court of such .Payment or adjustment and apply to the Court to issue a notice to the decree holder to show cause on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after due service of such -notice, the decree holder fails to appear on the day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. Unless such a payment or adjustment has been certified as aforesaid, it shall not - be recognised as a payment or adjustment of the decree by any Court executing the decree.
26. These last mentioned provisions, it needs to be noted, are almost similar to the provisions contained in Order XXI, rules 1 and 2 of the present C. P. C. Which is contained in Act V of 1908.
27. The two rulings from our own jurisdiction cited in the opening part of this judgment would require separate treatment. Before doing so, it would be of advantage to notice some post- independence Indian cases and some other rulings. In Surajmal v. Bheroolal and others (AIR 1958 RN. 311.) a learned Single Bench found that although the payment of the pre-emption money out of Court was made before the due date, but the receipt thereof was produced beyond time.
Reference was made to Slier Shah and others v. Slier Jang (21 P R 1889), Sukhpal Singh v. Abdul Rahman and others (AIR 1921 All. 159) and Abdul Fateh v. Faneh Ali and others (AIR 1916 Lah. 249).
In para. 9 of the judgment _ it was observed that the Court should not adopt a legalistic view in a case of this kind and see whether the decree has been substantially complied with i.e, in its spirit, if -not . In its literal wording. With regard to the deposit in Court, however, it was observed that it would be indeed desirable to make the deposit in Court. Nonetheless the deposit out of Court was, on account of the above reasoning considered due compliance with the provisions of Order XX, rule 14 as also Order XXI, rule 2 of the C. P. C.
28. In the judgment in Bholu Ram arid others v.- Kanhya and others (AIR 1963 Pb. 133), a learned Single Bench mainly relied on the Rajasthan case, although the other three cases are also mentioned therein. The reasoning in 1916 Lah. 249 was not followed. Because, it was not approved in the Rajasthan case. In this case an attempt was made to deposit the pre-emption money in Court, but without any success on account of the act of Court. Reference was made to the provisions contained in Order XXI, rule 2 and the repeal of sub-rule (3) of rule 1 of Order XXI in the Punjab by section 36 of Punjab Relief of Indebtedness Act 1934. Thuspayment out of Court was considered a good defence notwithstanding theprovisions contained in Order XX, rule 14. It appears that in this case also the rule of substantial compliance was followed.
29. Sukhpal Singh v. Abdul Rahman and others has been followed in some latter cases. It was held therein that payment need not be made into Court. The reasoning which' prevailed was that : Order XXI, rule 1 permits it ; the decree in that case did not direct a "deposit in Court" ; and, in any cast payment out of Court satisfied "the spirit and the letter of the decree".
30. In Sher Shah and others v. Sher Jang, the question of payment was considered under Punjab Laws Act, 1872 (as amended). The case was between vendee and the plaintiff pre-emptor and not between -two rival pre-emptors. Thus in the context of the present Code of Civil Procedure the provisions contained in Order XXI, rules I and 2 would be more relevant rather than Order XX, rule 14, in the peculiar circumstances of the case. The reasoning in this case was criticised in 1916 Lab. 249.
However, the conclusion was followed with a clarification and rider.
31: There are some other cases which deal with the interpretation of Order XXI, rules I 'and 2 qua the category of decrees to which these provisions would be applicable. In Shad! And others v. Ram Ditta (AIR 1936 Lah. 842) it was held that Order XX, rules I and 2 would not necessarily be applicable to money decrees alone ; while in Narayanswami Naidu and others v. Rangaswarni Naidu and others (AIR 1926 Mad 749) it was held that Order XXI, rule 2 covers a decree under which any money is payable and not to all kinds of decrees.
32. Although, as noted in some of . The rulings including one of this Court, .It has been held that Order XXI, rule 2 is not confined to only money-decrees and might in proper cases apply to other decrees, yet it cannot be said that the rule by its own foice would apply to the decree in preemption cases. One important consideration to be kept in mind is that in the same Code; in addition to the general provisions contained in rules 1 and 2 of Order ,XXI there are special provisions with regard to the payment of purchase money in pre-emption decrees contained in Order XX, rule.
14. Under an accepted rule of interpretation the special provision would, to the extent of inconsistency exclude the general provisions. This is not the only consideration, if the history of the relevant provision in the pre-emption law and Code of Civil 'Procedure is kept in view, it becomes absolutely clear that the Legislature from the very beginning laid emphasis on separate treatment of the subject of mode. Of payment of the pre-emptionmoney by the pre-emptor to the vendee as distinguished from the payment of money by a judgment-debtor to the decree-holder.
While in connection with pre-emption, barring a very short period in the last century when no independent provision/mode .Existed in this behalf, in the later. Statutes, it has always been laid down that the purchase money shall be paid into Court while other sums under the money and other decrees could be paid out of Court under certain conditions.
33. Apart from the above two weighty reasons there is yet another reason for non-application of Order XXI. Rule 2 to the payment of purchase money under a decree in a suit for pre-emption.
Heading of rule is "Payment out of Court to decree-holder". In. Case of pre-emptor decrees the sum is not paid to a decree-holder, on the other hand, in the peculiar context the decrees holder pays the amount to the judgment-debtor in order to achieve complete success. This is not all. The rule itself provides that when the decree is so adjusted in whole or in part so as to satisfy "the decree bolder", only then the decree-holder "shall certify such adjustment or for that matter payment to the Court". Obviously the certification by a pre-emptor decree holder himself is not covered by this rule. In sub-rule (2) of rule 2 although it is provided that a judgment debtor can also inform the Court with regard to the payment of adjustment out of Court, but the context is such that a vendee judgment-debtor in a pre-emption suit would not be covered by the phrase "judgment-debtor". It would not at all be necessary or in the interest of the judgment-debtor in a pre-emption suit to seek such a certification. On the other hand it for the pre-emptor decree-holder, after payment, that he would. Seek further action thereon. This is not all, when clause (b) of sub-rule (1) oil rule 1 is read together with rule 2 of Order XXI which is an extension of the said clause, the above reasoning would be further strengthened. Under the said clause the money under a decree can be paid out of Court to the decree-holder through a Bank or by a postal order or on evidence by writing signed by the decree-holder or his agent. The payment to the) decree-holder under rule 2 serves almost the same purpose. It would be seen that the law in this behalf contained in the said clause of rule 1 and rule 2 depends upon a vital precondition that the payment out of Court is to the decree-holder and not to the judgment-debtor. In the pre-emption decree it is the reverse. The pre-emption amount is payable by the decree holder to the judgment-debtor. In the light of the foregoing discussion while it is not necessary in this case to. Dissent from the view taken in Shadi and others to the extent that Order XXI, rule 2 might well apply t~ some decrees other than money decrees, but as held above, it shall not apply] to the payment of purchase money under the decrees in pre- emption suits.
34. A necessary corollary would follow from the afore-reached conclusion. Almost all the rulings noticed in this judgment which condone the payment out of Court of pre-emption money, derive the strength and reasoning in this behalf, at least indirectly, from the provisions of Order XXI, rule 2.
If this basis (as held above, is removed, and) would have been kept out of consideration, the - results might have been different. It is, therefore, legitimate to hold further with respect, that an important' reason for accepting payment out of Court of pre-emption money, which prevailed with the Courts, was not available and it would not be safe, again] with respect, to follow those rulings.
35: There is a more vital aspect of the matter. It has often been[ commented that too much adherence to technicalities might hinder, instead of advancing, justice. As a general proposition this is correct but it depends upon the nature and the wording of the relevant provisions of law as also the underlying legislative intent, in order to discover whether ; so-called technical provision needs to be followed strictly and departure therefrom would not only render the act as unlawful but also unjust. Rule 14 of Order XX, which provides that purchase money would be paid into Court is in a mandatory form. Not only this but it further provides that the decree itself shall direct the payment into Court of the pre-emption money. And this is what is not only normally expected of the Court but is also normally observed by it. The pre-emption decrees do, as a matter of form also, specify that the purchase money is to be paid into Court by a certain specified date. If it would not have been a mandatory provision the matter would have been left by the Legislature at that. In clause (b) of sub-rule (1) of rule 14, positive and negative penalties are provided if and when t he direction for payment into Court is not complied with. They are--
(i) the defendant shall not be obliged to deliver the possession of the property to the plaintiff- decree-holder unless "such payment" (into Court) is made ;
(ii) the title of the decree-holder to the property shall not be deemed to have accrued till the date of such payment ; and .
(iii) the negative penalty is to the extent that if the purchase money is not "so paid" (in the mandatory form, i.e., in Court) the "suit shall be dismissed with costs."
Under sub-rule (2) of rule 14, similar results would follow if in case of more than one pre-emptors, one pre-emptor fails to make the payment into Court, his suit would be dismissed and the other pre-emptor would then come in the field to fulfill the condition of payment and achieve full success, and so, on. Therefore, when .The provision is mandatory of the afore discussed type, the plaintiff cannot afford and also cannot be permitted to take shelter on the general principle that technicalities should not be. Permitted to hinder justice.
36. In addition to the above way of interpretation it is necessary, as is the rule in Pakistan (distinguished from some other countries) to consider and adopt, if possible, pragmatics rule of interpretation. This question directly arises out of another reasoning/rule adopted in some of the cited rulings, namely, the rule of `substantial compliance'. It- is with respect pointed out that when the provision is mandatory and its contravention is followed by positive penal consequences, the application of rule of -substantial compliance would meet serious difficulties. The provision in its mandatory form, it is clear, was enacted to avoid serious complications which might arise on account of payment out of Court as also to prevent collusion between one pre-emptor and the vendee to the disadvantage of the other pre-emptor in cases of rival preemptors. The facts and circumstances of this present case noted in the opening paragraphs of this judgment provide a classic example of the complications which the law as contained in rule 14, by specific words and phrases used therein and-also under the intent underlying the same, intended to avoid. Other examples were cited and discussed during . The arguments which would multiply the cases in which non-compliance with the law regarding payment into Court id pre-emption cases would lead to irremediable mischief. The intendmant cannot be achieved if strict adherence to the rules is not enforced. The rule of substantial compliance would not in this context apply so as to condone obvious non-compliance with the law.
37. It would be of advantage at this stage to repeat reference to section 22 of the Punjab Pre- emption Act which provides for deposit in Court of 1/5th of the probable value of the property (commonly known as Zar-e-Panjam). If the foregoing strict interpretation of rule 14 is not adopted, there would be no justification to insist on strict compliance of similar provision contained in section 22 of the Punjab Pre-emption Act It would not be possible in this context to deny that in case of departure serious consequences would follow. It is on account of the importance o the rule of deposit into Court (and not payment out of Court to the vendee that non-compliance with section 22 is followed by severe penalty for the plaintiff, namely, the rejection of his plaint. It would not be possible t apply one rule of interpretation (that of substantial compliance) to Order XX rule 14, C. P. C. And another rule (of strict compliance) to section 22 of the Pre-emption Act.
38. Rule 14 of Order XX is not the only provision in the Code of Civil Procedure which lays down the mode of payment of money in connection with Court proceedings/cases. As enumerated and analysed in another part of this judgment there are innumerable other provisions which deal with payments. They can be divided into about half a dozen categories. They are : payment into Court ; payment directly to a party ; payment into Court and that also "to a proper officer"; payment into Court for further payment to a certain party ; payment into Court or in alternative out of Court or otherwise even without payment, satisfaction of a party and consequential certification thereof ; and payment simpliciter without any specification whatsoever. This classification would show that the framers of the relevant rules were conscious of various special situations which were to be met by specific statutory directions. In some situations as is the case under Order XX, rule 14, more serious mischief including collusion and fraud was intended to be avoided by not leaving any option to the party or discretion to the Court qua mode of payment. It is in that significant context that the Code provided penalties in number of situations when a certain rule is not complied with in so far as the particular mode of payment is concerned. It is not necessary to repeat the provisions. The earlier parts of this judgment contain sufficient analysis in that behalf.
39. There was some discussion at the bar on the question of payment/ deposit Into Court and payment/deposit in Court. It would not be out of place to observe that in some provisions the words "payment" and "deposit" have been used with same meanings. For example, words "payment' and "deposit" have been used in the same context in Order XXXIV, rule 5 and while the heading of Order XXIV contains the words "Payment into Court", its rub 1 contains the word "deposit".
Similarly while the heading contains the phrase "into Court", in rule 1 the relevant phrase used is "in Court". Although it might be possible in a given case to convass that the payment to Court for direct payment there and then to the vendee might be considered as the proper payment Into Court and to the vendee, it is not necessary in this case to enter into that controversy.. It does not directly arise herein. But in so far as the other question which squarely arises in this cease, whether payment out of Court in any form can be considered as lawful compliance with rule 14 of Order XX, has, in the light of the foregoing discussion to be answered in the negative. Thus while we are in respectful agreement with the reasoning and conclusion in the case of Painda Khan, with respect, we are unable to agree with the reasoning and conclusion in the case of Noor Ahmed, and while we are in respectful agreement with the reasoning in the case of Abut Fatteh we are unable to approve the course adopted therein.
40. Consequently, with profoundest respect it has to be held that the law laid down in the case of Noor Ahmed is not correct, with the result that this appeal is allowed. The impugned judgments and decrees are set aside. It is held that the alleged payment out of Court by Muhammad Bux respondent, notwithstanding the so-called certification, was not in accordance with law and is of no avail to him. On the other hand, the payment into Court by the appellant isin accord with the law and the decree. Accordingly he is entitled to get the same executed. The warrant of possession shall be issued in his favour.