Civil Appeal No. 248-P of 2010.doc 
1
SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
 
 
 
 
 
Present 
 
 
 
 
 
 
Mr. Justice Nasir-ul-Mulk 
 
 
 
 
 
 
Mr. Justice Amir Hani Muslim 
 
Civil Appeal No. 248-P of 2010. 
(Against the judgment dated 17.5.2010 
passed by Peshawar High Court in C. R.  
No. 444 of 2010). 
 
 
Muhammad Wahid and another …………………………….Appellants 
 
Versus 
 
 
Nasrullah and another  …………………….………………Respondents 
 
 
For Appellants 
 
: 
 
Mr. Abdul Sattar Khan ASC.  
 
 
For Respondents  
: 
 
Mr. Mian Saadullah Jandal, ASC. 
 
 
Date of hearing  
 
: 
 
06.02.2014 
 
 
 
 
 
 
JUDGMENT 
 
 
 
Amir Hani Muslim, J.-Through the instant Civil Appeal, the 
Appellants have challenged the judgment passed by learned Peshawar High 
Court in C.R.No. 444 of 2010, whereby, the learned High Court while 
accepting the Revision Application, set aside the judgments of the Courts 
below, dismissed the suit and terminated the execution proceedings.  
 
2. 
 
The facts relevant for disposal of the present Appeal are that 
Appellants No.1 and 2 filed a suit for specific performance of an agreement 
Civil Appeal No. 248-P of 2010.doc 
2
to sell dated 2.12.2007 against the Respondents in the Court of Civil Judge, 
Samar Bagh. It was pleaded in the plaint that the suit property was devolved 
upon the Respondents, who agreed to alienate the same, by way of sale in 
their favour for a sum of Rs.14,00,000/- and an agreement to sell dated 
2.12.2007 was executed in presence of the witnesses; whereby the 
Respondents No.1 and 2 agreed to transfer their respective shares in favour 
of the Appellants for a sum of Rs.7,00,000/- each. The Respondent No.2 
received his share of sale consideration whereas a sum of Rs.3,00,000/- was 
paid to the Respondent No.1 as earnest money and the remaining sale 
consideration of Rs.4,00,000/- was agreed to be paid to the Respondent No.1 
upon completion of sale and delivery of possession. It was further pleaded in 
the plaint that the Appellants pursued the Respondent No.1 to receive the 
remaining sale consideration and delivery of possession, who on one pretext 
or the other, avoided to abide by the terms of the agreement. It is pertinent to 
mention here that the suit was not pressed against Respondent No.2 and he 
was only impleaded as performa Respondent.  
 
3. 
 
The trial Court proceeded with the case. The Respondent No.1 
though was personally served did not appear and contested before the Court, 
therefore, on 15.7.2008, the trial Court decided to proceed with the case ex-
parte.  On 23.7.2008, the Respondent No.2 filed his cognovits, admitting the 
averments of the plaint. On 30.7.2008, the trial Court recorded ex-parte 
evidence of the Appellants and fixed the case on 31.7.2008 for 
announcement of order. On 31.7.2008, the trial Court passed ex-parte decree 
Civil Appeal No. 248-P of 2010.doc 
3
against the Respondents, with direction to the Appellants to deposit 
remaining amount of sale consideration of Rs.4,00,000/- within forty days, 
failing which the suit would be deemed to be dismissed.  
 
4. 
 
Admittedly, the Appellants failed to deposit the remaining 
amount of sale consideration with the trial Court within the stipulated time 
and on 14.10.2008, they made an application before the trial Court for 
extension in time to deposit the said amount, inter alia, on the ground that 
they were abroad and hence could not deposit the amount within time. 
Alongwith this Application, an Application for condonation of delay was 
also moved. Notice of these Applications was directed to be issued to the 
Respondents. On 31.10.2008, the trial Court allowed the Applications ex-
parte and extended the time to deposit the said amount for ten months, 
holding that it had ample power under section 148 C.P.C to extend the time 
and that the decree was a preliminary decree.  
 
5. 
 
On 4.11.2008, the Appellants filed an Application for passing 
the final decree, which was allowed and the trial Court passed final decree on 
20.12.2008 in favour of the Appellants. On 20.4.2009, during the execution 
proceedings, the Respondent No.1 filed an Application before the trial Court 
for setting aside the ex-parte as well as final decree, inter alia, on the ground 
that he was in Kashmir in connection with earning his livelihood and that the 
Appellants had promised to withdraw the suit upon the intervention of the 
elders, therefore, he was unaware of the decree. An Application for 
Civil Appeal No. 248-P of 2010.doc 
4
condonation of delay in filing the Application for setting aside the ex-parte 
decree was also moved. The Appellants resisted the Application. However, 
the trial Court, by order dated 5.12.2009 dismissed the Application for 
setting aside the ex-parte decree dated 31.7.2008 and final decree dated 
20.12.2008.  
 
6. 
 
The Respondent No.1 filed Appeal before the First Appellate 
Court, which was dismissed vide judgment dated 19.2.2010 against which 
the Respondent No.1 filed Civil Revision No.444 of 2010, which was 
allowed, the judgments and decrees of the Courts below were set aside and 
the suit of the Appellants was dismissed. The execution proceedings were 
also directed to be terminated. Hence this direct Appeal by the Appellants.  
 
7. 
 
The learned Counsel for the Appellants has contended that the 
learned High Court has erred in law in allowing the Application of the 
Respondent No.1 for setting aside the ex-parte decree and dismissing the suit 
of the Appellants. He contended that the trial Court has rightly allowed the 
Application of the Appellants for extension in time to deposit the balance 
sale consideration in the Court, as under Section 148 CPC it has the power to 
extend the same. He submits that the impugned judgment of the learned High 
Court is liable to be set aside.  
 
8. 
 
He next contended that the Application of the Application for 
extension in time was within time, as the final decree was passed on 
Civil Appeal No. 248-P of 2010.doc 
5
20.12.2008 where the said Application was made on 14.10.2008 before the 
passage of the final decree.  
 
9. 
 
On the other hand, the learned Counsel for the Respondent No.1 
has contended that once the time fixed by the trial Court for deposit of the 
balance sale consideration was over, it had no jurisdiction to extend the 
same, as after passing the ex-parte decree the Court had no control over the 
lis.  
 
10. 
 
We have heard the learned Counsel for the parties at length and 
have perused the record. It is an admitted fact that the trial Court passed the 
preliminary ex-parte decree on 31.7.2008 with direction to the Appellants to 
deposit the remaining sale consideration within 40 days, but the Appellants 
failed to comply with the direction of deposit of amount within the stipulated 
time. On 14.10.2008, after lapse of 40 days, they made an Application before 
the trial Court for extension in time, which was also proceeded with ex-parte 
and allowed. The trial Court fell in error in allowing the Application of the 
Appellant after the stipulated period of 40 days and that too after the passing 
of the preliminary ex-parte decree. The Application of the Appellants for 
extension in time was not competent, as after the lapse of period of 40 days it 
had no control over the lis and jurisdiction to entertain such Application.  
 
11. 
 
As far as the contention of the learned Counsel for the 
Appellants that the trial Court passed the final decree after allowing the 
Application of the Appellants, suffice it to observe that the basic decree was 
Civil Appeal No. 248-P of 2010.doc 
6
a nullity, therefore, the edifice built no it would fall to ground and no sanctity 
could be attached to it. In our view, the impugned judgment of the learned 
High Court, doing complete justice between the parties, is plainly correct to 
which no exception can be taken.  
 
12. 
 
For the aforesaid reasons, we do not find any merit in this 
Appeal, which is dismissed with no order as to costs.  
 
 
 
JUDGE 
 
 
JUDGE 
 
 
Announced in Open Court on _____________ at Islamabad. 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Not approved for reporting 
Sohail/**