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Civil Petition No. 270 of 1983, heard on 5th May, 1985.

(Against judgment and order, dated 4‑3‑1985 of the Lahore High Court, Lahore, in Civil Revision No. 347 of 1982).

‑‑‑Art.185(3)‑‑Civil Procedure Code (V of 1908), 5.115 & O.XXI r.54‑ Executive of decree‑Pre‑emption suit‑ ‑Vendee/petitioners objecting to execution of decree on ground that since an additional sum i.e. costs of stamp papers, which was also to be paid by decree‑holder, was not paid by him, his suit stood dismissed‑‑Objection rejected by High Court‑‑Case of petitioner was not that decree as finally drawn up, whose execution was sought, was in terms not satisfied but he contended that certain findings recorded in judgment should have been incorporated in decree and even though not so incorporated they should be deemed to be incorporated and penal effect attached to non‑compliance with them‑‑Entitlement of petitioner to reimbursement of expenditure remaining in‑tact but dismissal of suit was attached only to deposit or failure to deposit pre‑emption money and costs of three Courts‑‑Held, Order being a penal one, same had to be construed strictly and decree -holder having deposited pre‑emption money and costs in entirety, petitioner could not insist on dismissal of suit for amount not so specified, included and linked.

Q.M. Salim, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners.

Rana Muhammad Sarwar, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondents.

Date of hearing: 5th May, 1985.

‑The petitioner, a vendee‑defendant in a suit for pre‑emption objecting to the execution of the decree, seeks leave to appeal against the judgment of the Lahore High Court, dated 4‑3‑1985 whereby a revision petition filed by the decree‑holder was allowed and the rejection of the objection of the petitioner to the execution of the decree was maintained.

In the pre‑emption suit filed by the respondent decree‑holder, the following judgment was given by the Lahore High Court in a civil revision filed by the petitioner:‑‑

"I modify the judgments and decrees of the Courts below and direct that if the respondent deposits Rs.53,000 in Court on or before 15th March, 1981, together with the costs decreed against him the petitioners shall deliver possession of the land in dispute to him but that if the said amount together with the costs is not so deposited the suit shall stand dismissed with costs.

Since the respondent purposely stated a much lower price than has been found to have been actually paid by the petitioners for the land in dispute and thus forced the petitioners to approach the High Court as well as the Additional District Judge to seek relief, he shall pay the costs of the petitioners throughout."

A decree was in terms prepared requiring the petitioner to deposit ' Rs.53,000 as price of the land as finally determined and Rs.4,563 as the costs of the three Courts making a total of Rs.57,563. He did deposit the amount in time and sought execution of the decree by delivery of possession of the property. The objection taken by the petitioner to the execution of the decree was that ‑the suit stood dismissed as an additional sum of Rs.2,385 was also to be paid by the decree‑holder which had not been paid in terms of the order.

The executing Court rejected this objection holding as follow:‑‑

"I have gone through the order of honourable Lahore High Court, Lahore, and the decree‑sheets of the learned Senior Civil Judge, Mianwali, and the learned Additional District Judge, Mianwali, but I do not find that Rs.2,385 were also to be deposited by the respondent in the Court. Cost. of the suit amounting to Rs.2,277.50 as already been deposited by the respondent, according to the orders of the Courts. This application has no merits and is dismissed, with no orders as to costs."

The appellate Court took a contrary view and considered that the deposit made by the petitioner did not include the amount of Rs.2,385 which he was required to pay on the basis of finding ‑on issue No. 6 and held the suit as dismissed on that account.

A revision petition was filed by the pre‑emptor decree‑holder and the same learned Judge who had earlier passed the order which was the subject‑matter of interpretation examined the question raised before him. The petitioner's objection was rejected by him holding as follows:

‑‑

"The High Court had made its own estimate of the amount which the petitioner was required to pay for acquiring the land in dispute. In this context it did not at all refer to the expenses allegedly incurred by the respondents in obtaining the registered sale‑deed. Quite clearly the costs referred to in paragraph 7 of the judgment are costs of litigation and not costs of obtaining a registered sale‑deed. The controversy which the respondents have raised perhaps might not have arisen if paragraph 7 had succeeded paragraph 8 are not vice versa but this unhappy arrangement is entirely insufficient to support the contention of the respondents that costs mentioned in paragraph 7 are different from those referred to in paragraph 8."

The learned counsel for the petitioner contended that as, the finding on issue No. 6 entitling him to the reimbursement of the costs of stamp paper had remained intact failure to deposit that amount should entail dismissal of the suit.

It is not the case of the petitioner that the decree as finally 'drawn up whose execution was sought was in terms not satisfied. What is contended is that certain findings recorded in the judgment should have been incorporated in the decree and even though not so incorporated they should be deemed to be incorporated and the penal effects attached to non‑compliance with them. The findings of the High Court may keep intact the entitlement of the petitioner to the reimbursement of that part of expenditure nevertheless the consequence of dismissal of suit was attached only to the deposit or failure to deposit the pre‑emption money and the costs of the three Courts. It being the penal order had to be construed strictly and the decree‑holder having deposited the pre‑emption money and the costs entirety, the petitioner cannot insist on dismissal for amount not so specified, included and linked.

We find no merit in the petition and leave to appeal is accordingly refused.

M.Y.H. Leave refused.

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