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Petitioner: GHULAM MOHYUDDIN VS Respondent: MUHAMMAD BAKHSH AND ANOTHER
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Muhammad Ilyas Title: GHULAM MOHYUDDIN vs MUHAMMAD BAKHSH AND ANOTHER Case No.: Second Appeal No. 359 of 1974 Date of Judgment:1979-02-12 Reported As: PLD 1979 Lahore 766 Result: Appeal allowed
JUDGMENT
JUDGMENT 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
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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
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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,
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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
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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
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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
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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…
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