Indal v. Chaudhary Ram Nidh — 1946 DIGILAW 15 (ALL)

JUDGMENT Madeley and Kaul, JJ. - This appeal against the decision of a single Judge of this Court u/s 12(2) of the Oudh Courts Act arises on the following facts: The Respondent, Chowdhury Ram Nidb, held a money decree against the present Appellant Indal. A house was attached and sold in execution of this decree. Objections were preferred by the judgment-debtors which were dismissed. He went in appeal and while the matter was pending in the appellate Court a compromise was arrived at between the parties on the following terms: Paragraph 1. That the Appellant shall pay a sum of Rs. 375 to Ram Nidh decree-holder Respondent within two months of the date of the compromise, and execution of decree shall thereupon be consigned to records and the property shall be released. Paragraph 2. That if within the period of two months aforesaid Indal did not pay the sum of Rs. 375 the appeal shall stand dismissed with costs and the sale of the property will be confirmed. 2. The period of two months expired on the 27th of January, 1941. No money was paid by Indal till that date. The 27th of January was a gazetted holiday. On the next day, that is the 28th of January, 1941, a tender voucher for deposit of the money payable to the decree-holder under the compromise decree was presented to Court and the money was actually deposited on the 29th of January, 1941. It was contended on behalf of Indal that this was sufficient compliance with the decree. On the other hand, the decree-Holder urged that time was of the essence of the contract, on the basis of which the compromise decree was passed, and inasmuch as the money was not deposited within the two months provided for by the decree, the appeal must be deemed to have stood dismissed with costs. The Court executing the decree and the appellate Court both repelled Indal's contention. He thereupon filed an appeal to this Court which was heard but our learned brother Misra J. who has upheld the decisions of the Court below. He, however, granted the Appellant permission to appeal u/s 12(2) of the Oudh Courts Act. 3. The Court executing the decree and the appellate Court both repelled Indal's contention. He thereupon filed an appeal to this Court which was heard but our learned brother Misra J. who has upheld the decisions of the Court below. He, however, granted the Appellant permission to appeal u/s 12(2) of the Oudh Courts Act. 3. The question of law which arises for consideration is whether, in the circumstances of this case, the deposit of the money payable by Indal to Chowdhury Ram Nidh on the 29th January, 1041, was sufficient compliance with the decree, or if his failure to make the payment within two months of the date of the decree resulted in the automatic dismissal of his appeal. 4. It was frankly conceded by Mr. R.K. Bose, Learned Counsel for the Appellant, that neither Section 4 of the Limitation Act nor Section 10 of the General Clauses Act could apply to the case before us. He relied, however, on two legal maxims: (1) Lex non cogitiad impossibila; and (2) Actus curiae neminem gravabit and a number of reported cases of different High Courts in support of his appeal. His contention was that under Order 21, Rule 1 of the CPC his client had the option to pay the decretal amount either in Court or direct to the decree-holder. That the 27th of January, 1941, being a holiday, in view of the maxims to which reference has just been made, his option to deposit the money in Court, if he chose to do so, could not be taken away; and as he deposited the money at the earliest opportunity on reopening of the Court, he must be held to have complied with the decree. He referred among others to the following cases in support of his contention. Chinna Nadar Vs. A.B.V. Arumugham Chetti, AIR 1927 Mad 1196 , S.T.P. Kasi Chetti alias Thenappa Chetti and Others Vs. Nagappa Chetti lately a minor since declared a major and guardian discharged, AIR 1939 Mad 814 ; Surendra Narayan Mustafi v. Souravini Dasi (1883) 10 Cal W.N. 535; Wana Mard Ravji v. Natu Walad Murha (1911) 35 Bom. 35; AIR 1935 369 (Lahore) ; Dhanu Singh v. Kesheoprasad AIR 1923 Nag 246; and Muhammad Jan Vs. Shiam Lal and Others, AIR 1924 All 218 5. 35; AIR 1935 369 (Lahore) ; Dhanu Singh v. Kesheoprasad AIR 1923 Nag 246; and Muhammad Jan Vs. Shiam Lal and Others, AIR 1924 All 218 5. Reliance in the judgment of the learned single Judge has been placed in support of the view taken upon. Adya Singh v. Nasib Singh AIR 1920 Pat 122; Roshan Lal Vs. Ganpat Lal and Rai Saheb Bhagwat Narain Singh v. Srinivas (1937) 16 Pat 202. 6. It was frankly conceded by Mr. Bose that these cases support the view taken by Misra J. and are definitely against him. He attempted to persuade us, however, to upset the decision of the learned single Judge as there was according to him a preponderance of authority in favour of the other view. Before considering the decided cases, we should like to examine the argument of Mr. Bose on merits. His contention, as already stated above, was that one of the options which the law gave him, viz., to deposit the money in Court if he so chose, could not be taken away in view of the maxims, to which reference has been made. General legal mixims, though they have their own use and are of considerable importance in the administration of justice, cannot supersede statutory provisions. What is the law to be administered by the Courts in Oudh is laid down in Section 3 of the Oudh Laws Act, XVIII of 1876 : 3. General legal mixims, though they have their own use and are of considerable importance in the administration of justice, cannot supersede statutory provisions. What is the law to be administered by the Courts in Oudh is laid down in Section 3 of the Oudh Laws Act, XVIII of 1876 : 3. The law to be administered by the Courts of Oudh shall be as for lows: (a) the laws for the time being in force regulating the assessment and collection of land revenue: (b) in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be (1) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority: (2) the Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment altered or abolished, or has been modified by any such custom as is above referred to ; (c) the rules contained in this Act ; (i) the rules published in the local official Gazette as provided by Section 40, or made under any other Act for the time being in force in Oudh: (e) the Regulations and Acts specified in the second schedule hereto annexed, subject to the provisions of Section 4, and to the modification mentioned in the third column of the same schedule: (f) subject to the modifications hereinafter mentioned, all enactments for the time being in force and expressly, or by necessary implication, applying to British India or Oudh, or some part of Oudh: (g) in cases not provided for by the former part of this section, or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience. 7. Before proceeding further we shall pause to consider what is the proper construction to be put upon the compromise decree. Paragraph 2 of this decree says in express words that if within the period of two months aforesaid Indal did not pay the sum of Rs. 7. Before proceeding further we shall pause to consider what is the proper construction to be put upon the compromise decree. Paragraph 2 of this decree says in express words that if within the period of two months aforesaid Indal did not pay the sum of Rs. 375 the appeal shall stand dismissed with costs, and the sale of the property will be confirmed. It is clear, therefore, that time was of the essence of the agreement which was arrived at between the parties and formed the basis of the compromise decree. This implies that we must read into this decree a condition that any payment made after the expiry of two months would not avail the judgment-debtor. Viewed in this light Order 21, Rule 1 of the Code of Civil Procedure, to which reference was made by Mr. Bose, cannot help his client. Even under this rule if the decree directs that an act shall be done within a period specified and not afterwards it must be done within that period, and failure to do the act within the specified time must entail the necessary consequence. The legal maxims on which Mr. Bose relied have no application. It is well to bear in mind the limits of the general principles embodied in those legal maxims. 8. As observed by Sir Walter in "The Generous" 2 Dods 321 at 24; The law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling them to impossibilities: and the administration of law must adopt that general exception in the consideration of all particular cases. In the performance of that duty it has three points to which its attention must be directed; in the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect; for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling is of that nature. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity, and which on fair trial he found insurmountable. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity, and which on fair trial he found insurmountable. I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion, and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony; for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation. 9. These observations of Sir, W. Scott are cited by Broom in his work on Legal Maxims to illustrate the limits of the maxim "Lex non cogit ad impossibilla." 10. In the present case Iudal knew definitely that he must pay the decretal amount within two months of the date of the decree. He also knew before that date that the 27th of January was a gazetted holiday. 11. It was open to him either to pay the money direct to the decree-holder within the time allowed, or to deposit it in Court. He cannot, if he failed to do so, rely on the maxim "lex non cogit ad impossibilla and obtained an extension of the period definitely fixed by the decree for making the payment nor can, under the circumstances the maxim. "Actus curiae neminem gravabit" help him. 12. We have cited above Section 3 of the Oudh Laws Act. Under Clause (g) of that section the present case must be determined according to justice, equity and good conscience. Can it be said fairly that it will be in consonance with justice, equity and good conscience to allow Indal, who had failed to deposit the decretal amount within the time allowed by the compromise' decree, to deposit it on the reopening of the Court because the last day of the period of two months was a gazetted holiday? We must answer this question in the negative. If the parties agreed to do a certain thing within a certain time, and the period fixed is of the essence of the contract, neither of them should be permitted to resile from it. We must answer this question in the negative. If the parties agreed to do a certain thing within a certain time, and the period fixed is of the essence of the contract, neither of them should be permitted to resile from it. To relax the principle in favour of either party to the detriment of the other will be, in our view, not in consonance with, but against, justice, equity and good consceince. As pointed out by Ganga. Nath J. in Roshan Lal Vs. Ganpat Lal if two alternatives are allowed to a person, he cannot choose one of them and" act in such a manner as to prejudice the rights of the other party. Thus it will be seen that on general principles the argument advanced by Mr. Bose would not bear examination. 13. It is true that there are some cases of different High Courts which support his contention, but there is ample authoirty in the decisions of the Patna and the Allahabad High Courts, in support of the view taken by the learned single Judge of this Court, see Adya Singh v. Nasib Singh AIR 1920 Patna 122; Roshan Lal Vs. Ganpat Lal and Rai Saheb Bhagwat Narain Singh v. Srinivas (1937) 16 Pat 202 and as the view of Misra J. is well founded in principle, and accords with justice, equity and good conscience, we see no good ground to differ from him. 14. The result, therefore, is that the appeal is dismissed with costs.