Find a Lawyer

Civil Petition No. 1064 of 1984, decided on 4th December, 1984.

(On appeal from the Judgment, dated 16‑9‑1984 of the Lahore High Court, Lahore in R.S.A. No. 859 of 1968).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XXI, r. 19‑‑Execution of decree‑‑Adjustment of costs‑‑Decree for possession subject to payment of specific amount‑‑Amount not deposited in full Adjustment of costs awarded in case towards decretal amount‑‑Leave granted to consider contentions that decree‑holder having himself applied in execution proceedings for recovery of full amount of costs awarded to him and Court having already issued a warrant for attachment in respect of this amount, had consciously not allowed any adjustment, and that compliance of terms of decree was to be made first and then costs could have been obtained.

Muhammad Afzal and others v. Haji Fazal‑ul‑Haq and others PLD 1971 S C 162 ref.

Hassan Ahmad Kanwar, Advocate Supreme Court with Ch. Ghulam Mujtaba, Advocate‑on‑Record (absent) for Petitioner.

Mazharul Haq, Advocate Supreme Court with Tanvir Ahmad, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 4th December, 1984.

‑The relevant facts are that the land measuring 19 Kanals 10 Marlas situate in village Jhang Chak Shumali was sold by Jhan Khan alias Habib Ullah Khan to (Mst.) Sahib Khatoon in 1964 for Rs.12,000 through a registered sale‑deed. A pre‑emption suit was filed by one Karam, the predecessor‑in‑interest of respondent No. 1 as 4 herein, to challenge the sale. The suit was decreed, vide judgment and decree, dated 4‑12‑1967 by the Administrative Civil Judge, Jhang, in the following terms:‑

"A decree for possession through pre‑emption of the suit land is passed in favour of the plaintiff and against the defendant on payment of Rs.12,000. This amount to which 1/5th already deposited in Court shall be credited to be deposited in Court till 15‑1‑1968, otherwise the suit shall stand dismissed with costs. Costs to follow the events."

A sum of Rs.9.500 was deposited towards the decretal amount on 11‑9‑1968. Unfortunately, the amount deposited fell short of the exact decretal amount by Rs.100 inasmuch as the "Zar‑e‑Panjum" already deposited in Court amounted to Rs.2,400 and Rs.9,500 were deposited on 11‑1‑1968, thus the total amount deposited came to Rs.11,900 which was less than the decretal amount by Rs.100. In the meanwhile the costs were assessed at Rs.552.21 and the decree‑holder submitted an application, dated 13‑2‑1968 before the trial Court and an order was passed on this application by the learned executing Court on 13‑2‑1968 to the effect that Rs.552.21 be attached in favour of the decree‑holder.

2. The decree‑holder had also submitted an application for grant of possession of the suit land in execution of the decree. This prayer, however, was opposed by the vendee on the ground that there was no executable decree so far. The learned trial Court accepted this objection and vide his order, dated 25‑6‑1968 dismissed the application for execution of the decree holding that as Rs.100 less than the decretal amount was deposited by the decree‑holder there was no executable decree in the field.

3. Karam deceased preferred an appeal against this order before the learned Additional District Judge, Jhang, which was allowed on 2‑12‑1968 on the principle that the decree‑holder had the right to get his costs adjusted towards the decretal amount.

4. Feeling aggrieved, the petitioner herein filed a second appeal before the High Court and submitted that the learned Additional District Judge had omitted to consider that the total amount deposited by the decree‑holder was Rs.11,900 and not Rs.12,000 which was less than the amount for which the decree was passed. Furthermore, the decree- holder had himself obtained an order of attachment for Rs.552.21 from the amount lying with the trial Court and, thus, the total deficiency was Rs. 652.21 and, consequently, the principle laid down by this Court in Muhammad Afzal and others v. Haji Fazal‑ul‑Haq and others PLD 1971 S C 162, that the costs can be adjusted according to the principle of set‑off was not attracted. However, these submissions were not accepted by a learned Single Judge of the High Court who dismissed the second appeal by his order, dated 21‑2‑1984. Hence this Petition for leave to appeal.

5. Mr. Hassan Ahmad Kanwar, learned counsel for the petitioner contended firstly, that the respondent decree‑holder had himself applied in execution proceedings for the recovery of the full amount of costs of Rs.552.21 awarded to him and the Court had already issued a warrant for attachment in respect of this amount. Thus the respondent herein had consciously not allowed any adjustment for the cost of the suit in the amount which he had to deposit by way of balance of the pre‑emption money. Secondly the compliance of the terms of the decree was to be made in the first instance and it was only then that the costs could have been obtained, i.e. the costs of Rs.552.21 could be obtained only after the entire decretal amount was deposited. The expression that the "costs to follow the event" in the decree implied that the costs would be available on the fulfilment of the terms of the decree. Since the terms on which the decree was granted was not complied with, the respondent decree‑holder was not eligible to get the costs which could have been available for adjustment.

6. These questions require examination leave is accordingly granted.

7. Security in the sum of Rs.2,500.

8. The interim order, dated 7‑11‑1984 to continue meanwhile.

M. I. Leave granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.