Syed Mutahir Shah Vs Syed Wakeel Badshah

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R. No. 592-P/2019

Syed Mutahir Shah.............................Petitioner Vs Syed Wakeel Badshah.......................Respondents Present: M/S Abid Ayub and Saad –ul-Mabood Khattak, Advocates for the petitioner.

Mr. Attaullah Khan Tangi, Advocate, for the respondent.

Date of hearing: 22.12.2025

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this Revision Petition, petitioner has challenged the order and judgment of the learned Additional District Judge, Tangi, Charsadda dated 25.02.2019, whereby the appeal filed by the respondent/plaintiff was allowed and thereby set aside the order and judgment of the learned Civil Judge-I, Tangi, Charsadda dated 12.04.2018, who vide the same had dismissed the execution petition of the respondent / plaintiff being time barred.

2.Precisely, the facts leading to the filing of this petition are as under:-

(i)That respondent/ plaintiff filed a suit for possession through enforcement of his right of preemption on 09.03.2004 and then as per order of the trial court dated 09.03.2004, the 1/3rd amount of Rs. 3,33,334/- was deposited by him on 08.04.2004, which suit was duly contested by the

petitioner/defendant and ultimately, the same was decreed vide judgment and decree dated 26.06.2009 and the respondent / plaintiff was directed to deposit the remaining 2/3rd purchase amount within thirty

(30)days, which he had also deposited the same on

(ii)On one hand, the respondent / plaintiff deposited the whole purchase amount and on the other he also challenged the aforesaid judgment and decree before the learned appeal court challenging the fixation of market value of the pre-empted property. Simultaneously, the petitioner / defendant also filed his appeal and ultimately, the appeal filed by the respondent/ plaintiff was allowed and thereby reduced the market value of the preempted property from Rs. 10,00,000/- (One million) to Rs. 840,000/- (Eight Lacs and forty thousand) and the respondent/plaintiff was also directed to deposit the

registration fee of Rs. 55103/- vide judgment and decree dated 28.02.2011, however, since the respondent / plaintiff had already deposited Rs.

10,00,000/- (Rupees One million), therefore, he did not deposit extra amount, being already deposited.

(iii)That the petitioner/defendant challenged the aforesaid judgment and decree before this court through C.R No. 894/2011 on 26.05.2011 which remained pending before this Court till 20.03.2015 and it was during pendency of the aforesaid C.R that the respondent/plaintiff also filed an execution petition on 05.07.2014 for the execution of the judgment and decree of the learned trial court dated 26.06.2009 and that of appeal court dated 28.02.2011, and ultimately, the revision filed by the petitioner/defendant was partially allowed vide judgment dated 20.03.2015 to the extent that the market value of the preempted property was again fixed as Rs. 10,00,000/- as was already fixed by the trail court vide its judgment and decree dated

(iv)It is an admitted fact that during the pendency of the aforesaid revision petition No. 894/2011 before this Court, the impugned judgments and

decree of trial court and appeal court were never suspended. The judgment of this court dated 20.03.2015 was also challenged before the Apex Court through an appeal, however, the same has also been dismissed.

(v)It would also be relevant to mention here that though the execution petition was filed on 05.07.2014, however, it was adjourned sine-die due to the pendency of revision petition before this Court, which has later on been decided on 20.03.2015, thereafter, a restoration application was submitted by the respondent/ plaintiff on 28.04.2015. It would also be relevant to mention here that during pendency of the execution petition before adjourned sine die an objection petition qua summary dismissal of the execution petition being time barred was filed by the petitioner/defendant and as such, after restoration of the execution petition, the said application/ objection petition filed by the petitioner / defendant was allowed by the learned Executing Court vide order dated 12.04.2018 and the execution petition was held as time barred from the date of judgment and decree of appeal court dated 28.02.2011. The aforesaid order / judgment was challenged by the

respondent/plaintiff before the learned Addl: District Judge, Tangi, Charsadda, which was allowed and thereby, held the execution petition as well within time from the date of passing of order and judgment by this Court in C.R No. 894/2011 dated 20.05.2015, hence, the instant petition.

3.Detail arguments of learned counsels for the parties were heard and record perused with their able assistance.

4.It is an admitted fact on both ends that a pre- emption suit was filed by respondent / plaintiff on 09.03.2004, and as per the order of learned trial court dated 09.03.2004 the 1/3rd amount of Rs. 3,33,334/- was deposited by respondent / plaintiff on 08.04.2004 and then the said suit after a due contest was decreed in favor of respondent/ plaintiff vide judgment and decree dated 26.06.2009. The operative part of the said judgment is reproduced below:

“The upshot of my above issues-wise discussion is that the suit of the plaintiff is here by decreed with no order as to cost. As the issue regarding the market value of the suit property has not been framed by my learned predecessor therefore it is held in the light of available record that the amount entered into the registered deed No. 28 of 11.11.2003 is declared as the market value of the suit property. The plaintiff has deposited 1/3 of the said amount in the court he is directed to deposit the remaining

amount within 30 days otherwise the suit of the plaintiff shall be deemed to have been dismissed.”

In compliance of the aforesaid judgment of the trial court dated 26.06.2009, the respondent / plaintiff deposited the remaining 2/3rd preemption amount of Rs. 6,66,676/- well within 30 days on 24.07.2009.

5.As stated hereinabove that on one hand the respondent / plaintiff deposited the whole purchase amount of preempted property of Rs. 10,00,000/- i.e.

1/3rd amount on 08.04.2004 and 2/3rd amount on 24.07.2009 but on the other he also challenged the said judgment of trial court qua fixation of the market value of the pre-empted property as Rs.

10,00,000/-, whereas the petitioner / defendant challenged the whole judgment and decree of the trial court and ultimately, the appeal of respondent/plaintiff was allowed and the market value of the preempted property was reduced and fixed as Rs. 840,000/-, nevertheless the respondent/ plaintiff was also directed to pay the registration fee of Rs. 55103/-. The operative part of the modified consolidated judgment and decree of the appeal court is reproduced below:

“Resultantly, both the appeals are partially allowed, the judgment and decree of the

learned trial court are modified to the effect that market value of the suit property is fixed Rs 8,40,000/- and the defendant is entitled to receive the registration fee etc. paid for the registration of sale deed No. 28 dated 11.11.2003, while rest of the judgment and decree is maintained. No orders as to cost. Pre-emptor is directed to deposit the remaining sale amount alongwith Rs. 55103/-, the registration fee etc. in trial court with in twenty days of the judgment of this court, otherwise the suit of the plaintiff shall be deemed to have been dismissed.”

6.In compliance of the aforesaid judgment of appeal court, respondent / plaintiff did not deposit the directed registration fee as he had already deposited Rs. 10,00,000/- as per direction of the trial court. The record further shows that the present petitioner then defendant challenged the aforesaid judgment and decree through C.R No. 894/2011 and it is part of the record that during pendency of the said Civil Revision Petition before this Court, no stay was granted to the petitioner/defendant. It is also part of the record that on one hand the said revision petition was pending before this court and on the other, the respondent/defendant filed an execution petition on 05.07.2014 to implement the judgment and decree of the trial court dated 26.06.2009 and of the appeal court dated 28.02.2011. It is also part of the record that when the petitioner/defendant was summoned, he then and

there filed an application for summary rejection of the execution petition being time barred on 19.10.2014, however, the said application was not decided then and there rather due to pendency of the revision petition before this court, the proceeding in the execution petition as well as the decision over the said application for summary dismissal of execution petition was also adjourned sine die.

7.It is part of the record that this court vide order and judgment dated 20.03.2015 modified the judgment and decree of the appeal court to the extent of market value only by fixing the same amount of Rs. 10,00,000/- instead of Rs. 840,000/- as was already fixed by the trial court and was already deposited by the respondent / plaintiff.

8.In the given facts and circumstances, now the only question before this court is that as to whether the execution petition filed by the respondent / plaintiff on 05.07.2014 for the execution of a decree of the learned trial court dated 26.06.2009 and that of the appeal court dated 28.02.2011 is within time or not?

9.Since, the aforesaid question is to be answered in context to the effect that it is a pre-emption

decree, which is always passed conditionally, as was in the present case as well that it was vide judgment and decree of the learned trial court dated 26.06.2009, when the respondent/plaintiff was directed to deposit the remaining 2/3rd amount within 30 days and it has also been directed that in case of his failure, the suit shall be dismissed and in compliance of the aforesaid judgment and decree, the respondent / plaintiff has deposited the remaining 2/3rd amount of Rs. 6,66,676/- on 24.07.2009. Similarly, while modifying the market value by the Appeal Court vide judgment and decree dated 28.02.2011, it was directed that the respondent/plaintiff shall deposit the remaining sale amount along with Rs. 55103/- within 20 days or in case of his failure, the suit would have to be deemed as dismissed. It is part of the record that the respondent/plaintiff while complying the judgment and decree of trial court dated 26.06.2009 had deposited the said amount on 24.07.2009 and as such, after performance of his part of obligation, the respondent/ preemptor has become an absolute owner of the preempted property and as such, from the said day, the petitioner/defendant was required

to have handed over the possession of the decreed property to the respondent / plaintiff and simultaneously the revenue authorities were also bound to enter the decree in the revenue record and as such in this regard any refusal of the judgment debtor or for that matter of the revenue authorities was the starting point for commencement of the limitation period for the purpose of the execution petition. In order to further clarify the aforesaid position, it would be relevant to mention here that in a case where a preemption suit is decreed then a decree is to be drawn in line with the mandate of Order-XX, Rule 14 CPC. The same being relevant is reproduced below:

14-(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-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) are 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 decree that the claim of each pre-emptor complying with the provisions of sub-rule (1) 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 degree, 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.

The aforesaid provision would manifestly show that when a preemption suit is decreed in respect of a particular sale of property and when the preemptor has not paid the purchased money then in the decree sheet a date is to be specified for the payment of the said purchased amount. Similarly, it has also to direct that on payment of the purchased money in the court along with the cost, if any, on or before the date referred in the decree, the defendant shall deliver the possession of the property to the plaintiff, whose title thereafter, shall be deemed to have accrued from the date of such payment and as such, if the purchased money is not paid within the specified period, then the suit shall be dismissed with cost.

10.In view of the above mandate of law, if applied to the case of the petitioner, then in

compliance of decree of the learned trial court dated 26.06.2009, whereby respondent / plaintiff was directed to pay the 2/3rd remaining amount within 30 days, he has deposited the said amount of Rs.

6,66,676/- on 24.07.2009 and as such it was on the said date (24.07.2009) when the respondent / plaintiff became absolute owner of the decreed property and from that day petitioner / defendant was bound to have delivered possession of the decreed property to the respondent / plaintiff.

Similarly, from the said date (24.07.2009), the revenue authorities were statutorily bound to incorporate the decree in the revenue record (nevertheless in this case the decree has been incorporated in the revenue record vide mutation No. 7659 attested on 03.12.2014, however, by then the limitation period for execution of decree has already expired) and as such the said date i.e.

24.07.2009 would be the starting point for the purpose of limitation of the execution of the pre- emption decree and as such, the respondent/ plaintiff was required to have filed the execution petition within three years i.e. from 24.07.2009 up-to 24.07.2012, however, as stated herein above that he

has filed the execution petition on 25.07.2014, therefore, on the aforesaid legal premises, the same is time barred by two years and thus the learned trial court has rightly held the instant execution petition as time barred, whereas the appeal court has wrongly and illegally held the same as within time.

An identical controversy came before the apex court in a case1, wherein the Hon’ble Supreme Court has held that in a case where the pre-emption suit is allowed, the decree must be drawn in accordance with the procedure provided by Order XX, Rule 14 of the C.P.C. It has further been held in the ibid judgment that the provision of Order XX, Rule 14 of the C.P.C. are mandatory in nature. The decree for pre-emption is a conditional decree, wherein, the plaintiff/decree holder has to fulfill two conditions;

he has to deposit in Court (i) the purchase-money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court. This provision of the C.P.C.

contains a penal consequence of dismissal of the suit, in case the plaintiff/decree holder fails to make payment of the purchase-money in Court on or “Muhammad Asif Chatta Vs. Addl: District Judge, Gujranwala” reported as 2022 SCMR 958.

before the date fixed in the decree. Once, the plaintiff/decree holder performs his part of obligation as per the directions contained in the decree, then he automatically becomes owner of the property, as such, he becomes entitled for possession. At the same time, the concerned revenue authorities are bound to implement the decree for the purpose of record of right, without an order from an Executing Court. However, in case the authorities concerned fail to do the needful, then the decree holder can file an application for execution of the decree. In such circumstances, the time for the purpose of limitation would be reckoned from the date of default in performance of obligation by the authorities. It is further held in the ibid judgment that besides, a pre-emption decree imposes reciprocal obligation on both the sides. Thus, after performance of part of obligation by the decree- holder, it is then the responsibility of the defendant/judgment debtor to deliver possession of the property to the decree holder. In case of failure to deliver possession of the property, a pre-emption decree can be executed through an application,

which shall be made within the period prescribed by Article 181 of The Limitation Act.

11.Even otherwise, the respondent / plaintiff has filed the instant execution petition for execution of the decree of the trial court dated 26.6.2009. The said execution petition being relevant is reproduced below:-

The contents of the aforesaid execution petition and specifically column No. 3 & 4 would show that after passing of the judgment and decree of the appeal court dated 28.2.2011, the respondent/plaintiff had sought the execution of the judgment and decree of the trial court dated 26.6.2009, and since the said execution petition has been filed on 5.7.2014, which is time barred by 128 days from judgment and decree of Appeal Court dated 28.02.2011 as under Article 181 of The Limitation Act, the respondent/plaintiff was required to have filed the same within three years i.e. upto

12.Another aspect of this case is that though the respondent / plaintiff was not satisfied from the judgment and decree of the trial court dated 26.06.2009 to the extent of fixation of the market value, therefore, he filed an independent appeal to the appeal court, which was also allowed in his favour to the extent of reducing the market value from Rs. 10,00,000/- to Rs. 8,40,000/- vide judgment and decree dated 28.2.2011, which judgment and decree of the appeal court though was challenged by the petitioner/defendant before this Court through

CR No. 894-P/2011, however, the respondent / plaintiff was satisfied from the judgment and decree of the appeal court and as such he has not challenged the same before this court and for him, the judgment and decree of appeal court has attained finality.

During the course of arguments, learned counsel representing the respondent / plaintiff was of the view that since this court vide order and judgment dated 20.05.2015 passed in CR No. 894-P/2011 has fixed the market value as Rs. 10,00,000/- and has also directed to pay the registration fee of Rs.

55,103/-, therefore, from the date of judgment of this Court the instant execution petition was within time, however, admittedly when respondent / plaintiff has not filed any second execution petition for the execution of the order and judgment of this Court dated 20.05.2015 passed in CR No. 894-P/2015 till date (year of 2025), then his aforesaid submission is not legally correct as when his instant execution petition is time barred from the date of judgment and decree of the trial court and appeal court and when he has not filed any second execution petition, though he could have validly filed the same under the law for the execution of order and judgment of this

Court dated 20.05.2015, then such submission of the learned counsel for the respondent / plaintiff to count the period of limitation from the order and judgment of this Court is totally misconceived and misplaced.

13.In view of the above discussion and exposition of law on the subject, this revision petition is allowed and consequently the impugned order and judgment of the appeal court dated 25.02.2019 is set aside, whereas the order and judgment of the executing court dated 12.04.2018 is restored and maintained and as result thereof the execution petition filed by the respondent / plaintiff is dismissed being time barred.

Announced 22.12.2025 Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah