2021 M L D 2123
[Balochistan]
Before Muhammad Ejaz Swati, J
MUHAMMAD SADDIQ and another ---Petitioners
Versus
GHULAM SARWAR and 3 others ---Respondents
Civil Revision No.226 of 2020, decided on 30th December, 2020.
(a) Specific Relief Act (I of 1877)---
----S.35(c) ---Rescission of agreement ---Suit for specific performance--- Execution petition---
Decree holder was directed to make payment of balance consideration amount ---
Petitioner/judgment debtor contended that respondent/decree holder had failed to make
payment of balance consideration amount within two months of passing of judgment/decree and agreement ceased to exist ---Validity ---If condition of the depositing amount mentioned
in the decree was not fulfilled, then the said agreement would cease to exist or rescind,
however, certain exceptions were there including the circumstances beyond the control of the decree holder or due to stay of proceeding by some court ---Petitioner/judgment debtor filed
objection and lingered on the matter from one pretext to a nother ---Respondent/decree holder
on various dates produced cheque for making payment of sale consideration which either could not be paid due to absence of the petitioner or he was reluctant to receive the same ---
Execution application was also consigned t o record due to stay order ---Executing Court was
required to direct the decree holder to deposit the sale consideration amount in the CCD account of the Court, but had not ordered---Decree holder could not be prejudiced due to the act of Court ---Decree hol der was directed by High Court to deposit balance consideration
amount within 15 days ---Revision petition was disposed of accordingly.
(b) Limitation Act (IX of 1908)---
----Ss.4 & 5 ---Specific performance---Execution petition for deposit of amount ---Twent y-
seven (27) days' delay in registration--- Closure of Courts ---Summer vacation ---
Respondent/decree holder filed execution application on 5th June, but at that time the business of the Court was closed due to summer vacation, therefore, said petition was registered on 8th July--- Courts remained closed during summer vacation for one month and
District Court mainly conducted criminal cases and stay matters in civil cases ---Section 4 of
the Limitation Act, 1908 was attracted ---Application could not be termed be yond the period
of limitation.
Muhammad Farooq for Petitioners.
Muhammad Riaz Ahmed for Respondent No.1.
Mir Ahmed Ali Baloch, Additional Advocate General for Official Respondent.
Date of hearing: 21st December, 2020.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The respondent No.1(plaintiff) filed a suit for
specific performance of an agreement dated 19th March, 2009 against the petitioners
(defendants), which was decreed by this Court in Civil Revision Petition No.456- A of 2020
vide judgment/decree dated 11th April, 2014 (the impugned judgment / decree). The relevant is reproduced as under: -
"It is declared that the petitioner has succeeded in proving the oral sale transaction subject to consideration of Rs.32,29,500/ out of which he has succeeded in proving the payment of only Rs.20,000/ -. It is further added that the respondent No.1 is bound
to perform his part of obligation by transferring the land in question on the name of petitioner along with its possession, subject to receiving the remaining amount of Rs.32,09,500/ - (Rupees thirty two lac and nine thousand and five hundred only). It is
further declared that after payment of full sale consideration, the subsequent mutation entry No.646 dated 3rd April 2009 on the basis of gift mutated by the respondent No
1 in favour of the respondent No.2 be re -called. Since the matter is pending from
2009 as such sufficient time has already been lapsed therefore, the petitioner is provided two months' time for the performance of his part of obligation, failing which the agreement stand cancelled
It is ordered that petition is allowed, the judgment and decree dated 22nd June 2010, passed by the Majlis -e-Shoora Lasbella at Hub, is set aside whereas the judgment and
decree passed by the Qazi Lasbella at Uthal, is modified with the above terms."
2. The respondent No.1 (decree holder) filed execution application on 5th June, 2014 for
deposit of the balance consideration i.e . Rs.32,09,500/ - before the Court of Qazi Lasbella, at
Hub (the executing Court) in the Court and for realization of the decree. It is necessary to mention here that execution application was filed during summer vacation, therefore, after summer vacation n otice issued to the petitioner/judgment debtor on 8th July, 2014. The order
sheet of the executing Court reveals that on the request of petitioners opportunity afforded to him for filing the objection and objection was filed on 5th November, 2014. On 16th March,
2015 executing Court directed to handover the balance consideration amount to the judgment debtor on 28th April 2015, but on the said date the presiding officer was on leave and matter was adjourned for 4th May, 2015. On 4th May, 2015 and 6th May 2015 the decree holder produced cheque of balance consideration, but due to absence of the judgment debtor the said cheque was returned to the decree holder and matter was adjourned for 7th May, 2015. On 7th May, 2015, the judgment debtor produced order date d 28th April, 2015 passed by the
Hon'ble Supreme Court of Pakistan, whereby operation of the impugned judgment/decree was suspended, therefore, the executing Court consigned the execution application to record and thereafter the Hon'ble Supreme Court of Pa kistan was pleased to pass order dated 14th
November, 2019 the relevant is reproduced herein below.
"We are of the opinion that it would be a futile exercise to examine merit of the
impugned judgment as in case the amount has not been deposited within the specified
time, the decree for specific performance would become non -executable. Let the
executing Court determine whether the balance sale consideration was offered/deposited within the period of two months or not. If the Court comes to the conclusion that the amount was not deposited, there would hardly be any need for the appellant to challenge the order in appeal. However, in case the executing Court holds that the compliance was made and the respondent had complied with the obligation in terms of the order dated 11.4.2014 then the appellant would be at liberty to get this
appeal resurrected by moving an application in this behalf."
3. The executing Court again commenced execution proceeding and issued notice to the
judgment debtor on 4th February, 2020 and on 10th February, 2020, the son of the judgment
debtor received copy for filing of objection. On 15th February, 2020 again objection filed and case was fixed for arguments and the executing Court heard the argument of both the counsel for the parties on 20th July, 2020 and vide impugned order dated 28th July, 2020
passed by the executing Court, whereby decree holder was directed to make payment of balance consideration amount on 10th August, 2020.
The above impugned order was assailed in appeal by the petitioner before the learned
Majlis -e-Shoora, Lasbella at Hub (the appellate Court) and proceeding before the executing
Court was stayed. The decree holder produced balance consideration amount before the Court, which was returned to him due to stay orde r passed by the appellate Court. The
appellate Court vide impugned order dated 25th August, 2020 dismissed the appeal filed by
the petitioners. The petitioners filed the instant Civil Revision Petition before this Court on 7th September, 2020 and this Cour t vide order dated 8th September, 2020 suspended the
impugned orders.
4. Learned counsel for the petitioners contended that the decree holder was under legal
obligation to make payment of balance consideration amount within two months of passing of the judgment/decree by this Court, but he was failed to do so and the agreement has ceased to exist; that first execution application was filed/registered on 8th July, 2014 with lapse of 27 days of the target date i.e 10th June, 2014 and executing Court had no jurisdiction to extend the time for deposit of the balance consideration amount. The both Courts below failed to consider the judgment/decree passed by this Court in its true perspective, therefore, same are liable to be set -aside and execution application be dismissed. He placed reliance on
case reported in 2017 SCMR 2022, 2020 SCMR 171.
5. Learned counsel for the respondent No.1 conversely contended that decree holder
within the stipulated period of 2 months approached the executing Court for deposit of balance consideration amount, which had repeatedly declined by the petitioners and in this
respect order sheet of the executing Court reflected bona fide intention of the decree holder; that execution application was filed within time, but it was registered a fter summer vacation,
therefore, period under the Limitation Act is to be excluded; that the petitioner from the inception was reluctant to receive the amount in question and his conduct is quite obvious
from the proceedings.
6. Having heard the learned co unsel for the parties and perused the record. Once a
decree in a suit for specific performance of an immovable property has been made and time
has been prescribed to make the deposit of certain balance consideration in the Court and in case of failure the agreement/contract would be rescinded. This means that decree is final and conclusive for all intent and purpose and the Court has finally disposed of the matter and if the condition of the deposit of the amount mentioned in the decree is not fulfilled, then the said agreement ceased to exist or rescind within the view of Section 35(c) of the Specific Relief Act. However, there are certain exceptions which includes the circumstances beyond the control of the decree holder to comply the decree out of the Court or due to stay of the proceeding by the Court of Law.
7. In the instant case the judgment/decree was passed by this Court on 11th April, 2014
and two months' time was provided for deposit of balance consideration amount till 10th June, 2014. The respondent/decree holder filed execution application on 5th June, 2014 for deposit of the amount before the executing Court and at that time the business of the Court was closed due to summer vacation, therefore, said execution application was registered on 8th J uly, 2014 after 27 days' delay.
8. In the province of Balochistan some districts including district Lasbella subordinate
civil as well as district Court remain closed for civil business during summer vacation for one month in the month of June and the Dist rict Court mainly conduct criminal case and stay
matter in civil cases, therefore, instant matter fall under Section 4 of the Limitation Act, 1908, which reads as under:
"Where Court is closed when period expires.---Where the period of limitation prescrib ed for any suit, appeal or application expires on a day when the Court is
closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re -opens."
In case titled Muhammad Ramzan v. Ahmad Bux and another (1991 SCMR 716), the
Hon'ble Supreme Court of Pakistan, observed as under: -
"We see no warrant for this view on the plain language of section 4. Section 12 of the Limitation Act, 1908 is an exclusionary provision whereby certain time in certain situations and circumstances is excluded from the computation of the period of limitati on prescribed by law. Subsection (2) of said section provides for exclusion of
time requisite for obtaining a copy of the judgment on which the decree under appeal is founded. Thus, section 12 is a provision relating to the computation of period of limitat ion for suits, appeals and applications and in the prescribed circumstances,
certain periods of time are excluded in computing such period. On the other hand section 4 of the Limitation Act has nothing to do with computing the prescribed period. (See Maqbu l Ahmad and others v. Onkar Pratap Narain Singh and others AIR
1935 PC 85). It, therefore, appears reasonable to hold that if a party does not claim exclusion of any period of time under section 12(2) of the Limitation Act. It would be against the law to d eprive him of the benefit of section 4 in case the ordinary period
of limitation expires on a holiday, to prefer the appeal on the reopening of the Court."
In case titled Rasul Baksh v. Ghulam Qadir and another (PLD 1960 (W.P) 741), the
Hon'ble Supreme Co urt of Pakistan observed as under: -
"It is clear from these rules that according to the instructions applicable to the Civil
Courts in the former Province of Sindh, no civil judicial work, except of an urgent nature, is to be conducted during annual vacat ion. That being so, section 4 of the
Limitation Act would apply, with the result that when in any appeal or suit the period of limitation expires during the vacation, the matter would be within time instituted on the first day of reopening of the Civil Courts after such vacation. This is exactly what has happened in the present case, whichever date is adopted as the starting point, the period of limitation expired during vacation, and the appeal was filed on 1- 9-
1958, which was the first day of the re -openi ng of the Court. The appeal was
therefore within time, and could not have been dismissed as barred by limitation."
In view of the above, the execution application filed by the respondent/decree holder
cannot be termed beyond the period of limitation.
9. The contention of the learned counsel for the petitioners that the judgment/decree was
passed by this Court and the executing Court was not competent to allow deposit of sale
consideration of the amount other than the period mentioned in the judgment/decree is also
not tenable. The decree of the Court of first instance merges into appellate decree including
decree passed in civil revision. By virtue of Section 37 Civil Procedure Code (C.P.C.), the appellate decree is ordinarily executed by the Court of first instance.
In the instant case the executing Court (Court of first instance) in view of the Order
XXI, Rule 10, C.P.C. proceeded the matter as the judgment debtor opted to file objection and he lingered on the matter from one pretext to another, however, executing Court directed the respondents to deposit sale consideration amount. The respondents on various dates produced cheque for making payment of sale consideration which either could not be paid due to absence of the petitioner or he was reluctant to receive the same. The execution application was also consigned to record due to stay order dated 28th April 2015 passed by the Hon'ble Supreme Court and therefore, when the Hon'ble Supreme Court passed order dated 14th November, 2019 and respondent filed s econd execution application for deposit the balance
sale consideration amount, the petitioner contested the same by way of filing objection, appeal and instant petition.
The order sheet of the executing Court reveals that decree holder produced cheque
before the executing Court, but judgment debtor declined to receive the same. It was required
by the executing Court to direct the decree holder to deposit the sale consideration amount in the CCD account of the Court, but has not been ordered, therefore, due to the act of the Court
decree holder cannot be prejudiced, in the circumstances of the case the impugned order warrant no interference. The decree holder is directed to deposit the balance consideration amount of Rs.32,09,500/ - with the Additional Regist rar (finance) of this Court within period
of 15 days after passing of this order, failing which the agreement stand rescinded. The decree holder may apply the executing Court for realization of the decree including
possession and mutation of the property, subject to deposit of the balance consideration
amount within time. The instant Civil Revision Petition is disposed of accordingly.
ZH/60/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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