Bhairo Kumar Prasad Jain v. Jagat Dipendra Prasad — 1965 DIGILAW 79 (PAT)

Judgment Misra, J. 1. This is an appeal by the judgment-debtor against the decision of the learned single Judge allowing the appeal of the decree-holder respondent in Miscellaneous Appeal No. 216 of 1961. The respondent held a money decree against the appellant for a sum of Rs. 14,000 and odd including costs passed on the 23rd of September, 1955. Execution Case No. 11 of 1955 was started at the Instance of the decree-holder on the 10th of December, 1966. The decree-holder included in the sale proclamation two properties under lot Nos. 1 and 2 which gave rise to a miscellaneous case for valuation of the two lots under Sec.18 of the Bihar Money Lenders Act. The executing court assessed the valuation of lot No. 1 at Rs. 38,400 and of lot No. 2 at Rs. 13,660. The appeal of the judgment-debtor against the valuation was dismissed by this court on the 9th of September, 1959. The decree-holder took out sale proclamation in respect of lot No. 1 as the value of that property would cover the entire amount of the decretal dues. 2. On the 18th of August, 1960, the judgment-debtor paid a sum of Rs. 1,000 to the decree-holder by virtue of an order dated the 18th June, 1960 when his application for fixing payment by instalments was still pending. It appears that there was some kind of amicable arrangement between the parties which was recorded in an order dated 21-2-1961, the relevant portion of which may be quoted here: "Heard lawyers for the parties. It was agreed with the consent of the parties and their lawyers that if the judgment-debtor pays Rs. 3,300 to the decree-holder or deposits the said amount in court to the credit of the decree-holder by 15th May, 1961, then lot No. 2 would be put to sale for realising the balance amount of the decretal dues in the first instance. In case of default of payment such portion of lot No. 1 which would satisfy the decree would be put to sale." 3. On the 15th of May, 1961, which was the last date fixed under the terms of the above consent order for depositing the sum of Rs. 3,300 the judgment-debtor filed a petition in court stating that he was able to arrange only for a sum of Rs. 500 and the decree-holder might be directed to accept that amount and. On the 15th of May, 1961, which was the last date fixed under the terms of the above consent order for depositing the sum of Rs. 3,300 the judgment-debtor filed a petition in court stating that he was able to arrange only for a sum of Rs. 500 and the decree-holder might be directed to accept that amount and. The balance of Rs. 2,800 would be payable to him within two weeks from that date. The decree-holder was reluctant to approve of this arrangement. Accordingly, shortly after the first petition on the 15th of May, 1961, another petition was filed on behalf of the judgment-debtor appellant that he was able to arrange for the entire amount of Rs. 3,300 which he was prepared to deposit and prayed for issue of chalan. When a copy of this petition was served on the lawyer for the decree-holder, he made an endorsement on the back of the original petition saying that if the judgment-debtor was able to get together the entire amount, he was prepared to receive it and the prayer for issue of chalan was a mere pretence. The judgment-debtor, however, did not pay the amount hand to hand to the respondent or his lawyer, but he thought it proper to have the chalan for depositing the amount in court. 4. On this, the order passed by the court was as follows: "Heard lawyers. Nazir to accept the amount. Issue chalan as prayed for." Later on, another order was recorded by the court which runs thus: "Chalan not received by the accounts office on the ground of late. Send it again tomorrow in the first hour. ". The decree-holder made an application on the 16th May, 1961 for putting to sale the advertised property and the judgment-debtor filed a rejoinder to the application of the decree-holder. On the 17th May, 1961, the judgment-debtor filed a copy of the chalan showing deposit of Rs. 3,300 by chalan No. 178 dated 16-5-1961. The court ordered it to be kept on the record. 5. On the 17th May, 1961, the judgment-debtor filed a copy of the chalan showing deposit of Rs. 3,300 by chalan No. 178 dated 16-5-1961. The court ordered it to be kept on the record. 5. Accordingly the court had to take a decision on the respective claims of the parties, the appellants contention being that the tender of the chalan by him on the 15th of May, 1961 to the accounts office was sufficient compliance with the terms of the consent order passed on the 21st February, 1961, and that the decree-holder was accordingly bound to proceed against lot No. 2 in the first instance and only if the amount realised would not be sufficient to satisfy the decretal dues, the decree-holder might proceed against lot No. 1. On the other hand the stand of the decree-holder was that mere tender of the chalan was not sufficient and the amount of Rs. 3,300 which was required to be deposited by the 15th May, 1961, not having been deposited in compliance with the order dated 21-2-1961, the decree-holder was at liberty to proceed against lot No. 1 in the first instance as he intended to do prior to the passing of the aforesaid consent order. 6. The learned Subordinate Judge on a consideration of the arguments advanced on behalf of the parties came to the conclusion that the tender of the chalan by the judgment-debtor on the 15-5-1961, which was not accepted by the accounts office and for which reason the amount to he deposited was not actually deposited and which, however, was deposited the next day that is on the 16-5-1961, should be held to be sufficient compliance with the consent order and as such the decree-holder was bound to proceed in accordance with the consent order of the 21st of February, 1961. Being aggrieved by the decision of the learned Subordinate Judge, the decree-holder came up in appeal to this Court which was allowed by the learned single Judge Hence this appeal by the judgment-debtor. 7. Learned counsel for the appellant has urged that in the circumstances discussed above the learned single Judge should have held that the deposit of the sum of Rs. 3,300 on the 16th May, 1961, was a valid compliance; and the learned single Judge was in error in coming to a different conclusion on the point. 7. Learned counsel for the appellant has urged that in the circumstances discussed above the learned single Judge should have held that the deposit of the sum of Rs. 3,300 on the 16th May, 1961, was a valid compliance; and the learned single Judge was in error in coming to a different conclusion on the point. He has referred, in the first instance, to a Full Bench decision of this Court in the case of Bhagwat Narain Singh V/s. Srinivas, AIR 1937 Pat 113 (FB). That was a case, however, where the judgment-debtors property was sold in execution of a decree but before the confirmation of the sale, the judgment-debtor paid a certain amount to the decree-holder and agreed to pay the remaining amount on a subsequent date and in default the sale would stand confirmed. The judgment-debtor defaulted in paying the amount in pursuance of the agreement between the parties and accordingly the executing court passed an order confirming the sale. In that case the consequence of default and carrying out the terms of the agreement was not the point for consideration by the executing court, but the scope of Order 21, Rule 85, Code of Civil Procedure; and the decision of the Full Bench of this court was that even if the order confirming the sale was not appealable, that could be interfered with in revision. It was no doubt held further that time was the essence of the contract, which is not the point for consideration before us in this appeal. Here, the parties are at issue not as to whether and in what circumstances the term as to the payment of certain amount by one party to the other is to operate as an essential condition and when it is to be otherwise and is thus condonable, but whether the tender of the sum of Rs. 3,300 by the appellant to the court of the Subordinate Judge in so far as he filed the chalan for depositing the amount which was not accepted by the accounts clerk and consequently the amount was actually deposited on the following day, would operate as a valid compliance with the terms of the agreement between the parties. In that view of the matter, the Full Bench decision has no bearing on this question. 8. Mr. In that view of the matter, the Full Bench decision has no bearing on this question. 8. Mr. Kaushal Kishore Sinha has also relied upon a decision in the case of Ram Kinkar Singh V/s. Kamal Basini Devi, AIR 1938 Pat 451. That, too, was a decision, where the question for consideration in general term was whether, in view of the agreement between the parties incorporating the compromise decree, time was the essence of the contract or not: and consequently whether as soon as the due date of tender passed, the right of the decree-holder to execute the decree as a whole accrued to him. That decision also, therefore, is not of much assistance to the point in controversy in the present case, Mr. Sinha has drawn our attention, in the next place, to a single Judge decision of this court in the case of Bijoy Singh V/s. Raja Kirtya Nand Singh, AIR 1932 Pat 342. That is a case analogous to the facts in the present case. In that case also, the petitioner purchased certain property at a court sale and duly deposited the earnest money and in terms of Order 21, Rule 86, Civil Procedure Code, the balance had to be paid into court on the fifteenth day. At 10.30 on the fifteenth day he came with the balance of the purchase-money, which he tendered with the chalans to the chief ministerial officer of the court. The chalans were made over to Judge-incharge for signature. He did not get them back, however, on that day; and, accordingly, the money could not be paid into the treasury. The chalans were not returned until the next open day when the balance of the purchase-money was duly deposited in the treasury. The Munsiff, however, set aside the sale under Order 21, Rule 86, Civil Procedure Code, on the ground that the whole of the purchase money had not been deposited in time. This court, in revision, filed against the order of the learned Munsif, held that the act of the auction purchaser in coming to the court at the opening hour of the fifteenth day with the money prepared to make the deposit and diligently taking the steps required by the Departmental Rules must be treated as having complied with the requirements of Order 21, Rule 5, Civil Procedure Code. Reference was made by the learned Judge to a decision of the Calcutta High Court in the case of Gujadhur Pau-ree V/s. Naik Pauree, (1882) ILR 8 Cal 528, wherein also the principle was laid down that where a judgment-debtor came to court within time with money and diligently took the necessary steps required by the Rules for its actual payment into the treasury, even if the payment was not made within the time allowed, the payment on the next date is to be treated as sufficient compliance This case was followed by the Madras High Court in the case of Srinivasa Bhatta V/s. Malayacha Mannadi (1884) ILR 7 Mad 211. James J, referred to the principle laid down in this decision and allowed the application setting aside the order of the learned Munsif. In my opinion, this decision is quite in point, in as much as it turns upon the question of the failure of the auction purchaser to deposit the amount of the balance of the purchase money under Order 21, Rule 85, Civil Procedure Code, on account of the chalan not being passed although he tendered the amount into court within the time allowed under the Rules. This principle has been considered in greater fullness in another decision of this Court in the case of Firm Kedarnath Radheshyam V/s. Hanuman Das Kejriwal, 1954 BLJR 511. Imam, C. J. and Narayan, J. in that case have ruled that where a purchaser filed a petition on the last date for acceptance of the balance of the purchase money, but the petition was not even accompanied with a chalan, it was open to the auction purchaser to pray to the court to accept the money even though he had not filed a chalan. It was ruled that the Presiding Officer could either direct deposit by chalan or he could direct the Nazir to receive the money in cash. In the present case, the learned Subordinate Judge could have adopted the same course if the appellant filed a petition for permission to deposit the money only sometime after half past ten in the morning, when he had only Rs. 500 with him and prayed that the amount might be accepted. In the present case, the learned Subordinate Judge could have adopted the same course if the appellant filed a petition for permission to deposit the money only sometime after half past ten in the morning, when he had only Rs. 500 with him and prayed that the amount might be accepted. The prayer was refused, but soon after the judgment-debtor stated to the court that he was able to get the entire amount and the Presiding Officer passed the following order: "Subsequently judgment-debtor tenders chalan and files a petition praying to issue chalan to deposit Rs. 3,300 Heard lawyer. Nazir to accept the amount. Issue chalan as prayed for." Later on, on the same date at 11-10 A.M. the following order as already stated was recorded in the ordersheet: "Chalan not received by the accounts office on the ground of late (?). Send it again tomorrow in the first hour." On the 16th May, 1961, the judgment-debtor filed a petition by way of rejoinder to the decree-holders petition for advertising the property to sale, which was taken up for consideration on the following day. The order runs thus: "Judgment-debtor files copy of chalan showing deposit of Rs. 3,300, vide chalan No, 178 dated 16-5-1961. Let it be kept on the record and put up on the date fixed." In these circumstances, the learned subordinate Judge, after hearing the parties, held that the deposit of the money was a valid compliance with the terms of the agreement. In my opinion, there can be no doubt that the learned Subordinate Judge was satisfied that the judgment-debtor failed to deposit the amount on the 15th May, 1961, because the chalan was not received by the accounts office. If there had been anything wrong or mala fide on the part of the judgment debtor, the court would not have passed the "order "Send it again tomorrow in the first hour." It was open to the learned Subordinate Judge not to pass this order but to direct that even if the chalan was not passed, the amount might be handed over to the Nazir to keep it for the night in the accounts office and it might be sent to the treasury the next day. The argument of learned counsel for the respondent, therefore, that the appellant did not have adequate funds with him on the 15th May, 1961, and the tender of the chalan was just a make believe, cannot be accepted. Even if it be staled that the point was not raised before the learned Subordinate Judge, it was his duty to tender the chalan to the accounts office; and he was to be blamed for not tendering it in time. In my opinion, in view of the distinct order recorded by the learned Subordinate Judge, no argument is available to learned counsel for the respondent to the effect that the appellant should have actually handed over the money to the Nazir. The decision of the Division Bench refer red to above supports the contention urged on behalf of the appellant, as Narayan, J. observed that it was open to the Presiding Officer either to direct deposit by chalan or he could direct the Nazir to receive the money in cash. In the present case, it was not only a question of absence of an order by the Presiding Officer, but there is a positive order by the Presiding Officer that the chalan should be presented the next morning and it should be accepted. It is not necessary to refer to the provisions of Order 21, Rule 85, Civil Procedure Code, and the relevant rules in the High Court General Rules and Circular Orders, which have been gone into in detail in the above judgment. It is sufficient to say that even if it was not a case covered entirely by Order 21, Rule 86, Civil Procedure Code, it would completely cover the point in issue. As it is, however, learned counsel for the respondent has contended that some distinction should be made between a contractual liability based on an agreement filed in court by the parties and a deposit made under Order 21, Rule, 86, Civil Procedure Code. In my opinion, however, so far as the ratio of the aforesaid decision is concerned, it is difficult to accept his contention, because the language of Order 21, Rule 85, is also, more or less, to the same effect as the language of an agreement in question. In my opinion, however, so far as the ratio of the aforesaid decision is concerned, it is difficult to accept his contention, because the language of Order 21, Rule 85, is also, more or less, to the same effect as the language of an agreement in question. It stands thus: "The full amount of purchase-money payable shall be paid by the purchaser into court before the court closes on the fifteenth day from the sale of the property." When, therefore, in an agreement filed in court it is stated that the amount of a particular instalment, as in this case, would be payable on or before a certain date, it is indistinguishable from the wording of Rule 85 of Order 21, Civil Procedure Code, which lays down that the balance of the purchase-money is to be paid before the court closes on the fifteenth day from the sale of the property. 9. Learned counsel for the respondent has also referred to another decision of this Court in the case of Ram Sarup Prasad V/s. Shiva Dutta Prasad, 1959 B L.J.R. 700: ( AIR 1960 Pat 560 ). It is no doubt true that it was laid down therein that where the court has fixed by consent of the parties a date for the payment of the money and time is the essence of the contract and no deposit is made within the time fixed by the contract of the parties, then the court has no jurisdiction to extend the time for payment of the deposit. But, while discussing the ratio of the case, it was observed thus: "Strictly speaking, this was not at all necessary, in view of the positive direction of the court to the Nazir to receive the money. But, while discussing the ratio of the case, it was observed thus: "Strictly speaking, this was not at all necessary, in view of the positive direction of the court to the Nazir to receive the money. After this order of the Subordinate Judge all that the appellant had to do was to present before the Nazir both the chalan and the money It was a peremptory order to meet an extra-ordinary situation to accommodate the appellant himself and having failed to avail himself of the concession accorded to him by the court, he cannot rest his case on mere technicality that there was delay in passing the chalan" Reference was made in that case to Rule 18, Chapter I, Part X of the General Rules and Circular Order (Civil), Volume I, which lays down as follows: "When under Clauses (a) and (b) of Rule 7 above, a tender is made of money which must, by law be received, the payment shall be made direct into court in cash, but, only under the express order of the Presiding Officer to be recorded on the top of the original chalan " In view, therefore, of this rule, the payment to the Nazir could only have been made under the express order of the Presiding Officer. In any other case, the payment had to be made by chalan. That decision rested mainly upon the positive order passed by the court to the Nazir to receive the amount in cash. 10. Learned counsel for the respondent has further urged that, in any case, two alternative courses were open to the appellant in terms of the agreement itself. One was to pay the money hand to hand to the decree-holder. The other was to deposit the amount in court. The appellant did not take advantage of the first alternative and, as such, it should be held that his failure to comply strictly with the terms of the agreement and to deposit the amount on the 15th May, 1961, entailed the liability of losing the advantage he was entitled to in terms of the agreement dated the 21st February, 1961. In my opinion, this approach to the matter would be hardly correct. In my opinion, this approach to the matter would be hardly correct. It is true no doubt that when a party waits till the last date and fails to deposit the amount in time, it may be difficult for him to get the advantage of an extension in his favour of the date except possibly under very extra-ordinary circumstances. That, however, is not the question in this appeal. The answer to the question urged on behalf of the respondent is to be found in a decision of the Allahabad High Court in Baijnath Balmakund V/s. Chedi Lal AIR 1935 All 748 in which an argument was advanced but was repelled by the learned Judge in the following words: "It is next contended that the judgment-debtors could have made the payment to the decree-holder out of the court and that they merely filed a tender in court on the last day, the actual payment having been made the next day, i.e., one day after the day fixed for the payment. It has been held in a number of cases that tender amounts to payment if money is deposited within the usual time. It is not suggested that the judgment-debtors had no ready money on 22nd December 1980, and the filing of tender was merely a pretence of payment. It was open to the judgment-debtors to make payment through court. Indeed we think this was a more prudent course. They were justified in paying through court and the only manner in which they could have done that was by filing a tender in court and depositing the money in the treasury. We hold, in these circumstances, that the tender made on 22nd December, 1930, amounts to payment on that date." A large number of other decisions have been cited at the Bar from various High Courts; but it appears to me unnecessary to refer to them because some of these cases relate to a situation, wherein under the terms of an agreement the party concerned was bound to deposit the amount on or before a certain date, which happened to be a holiday. It is true no doubt that the decisions of the High Courts of Madras. Bombay and Calcutta have proceeded on the view that when the last day for payment falls on a holiday, payment made on the day next following is sufficient compliance. It is true no doubt that the decisions of the High Courts of Madras. Bombay and Calcutta have proceeded on the view that when the last day for payment falls on a holiday, payment made on the day next following is sufficient compliance. The decision of this Court, however, is slightly different, as it will be found in the case of Adya Singh V/s. Nasib Singh, AIR 1920 Pat 122 as also the case of AIR 1938 Pat 451. All these, however, are cases of the last day for payment falling on a holiday. In my opinion, the classes of cases where two different lines of reasoning have been adopted by the learned Judge, one class holding that the last day falling on a holiday in the matter of a compromise decree must be deemed to be extended to the next working day and the other class holding that the fulfilment of the terms of the agreement must be made on or before the last day and if the last day happens to be a holiday, the party concerned cannot take advantage of the next working day of the court where two courses are open to the party obliged to make the payment, are not relevant for the decision of the point in issue in the present case; and hence it is unnecessary to refer in detail to cases along that line, apart from the fact that they have been referred to in Ram Kinkar Singhs case, AIR 1938 Pat 451 (supra). For the purpose of this appeal, it is sufficient to say that the tender by chalan on the 15th May, 1961, by the judgment-debtor in court must be held to be sufficient compliance with the terms of the agreement; and the learned Subordinate Judge was right in his conclusion that it was a valid compliance; and, as such, the decree-holder was not entitled to take advantage of the default clause in the agreement between the parties; and, therefore, he was bound to put to sale lot No. 2, in the first instance, and that only in the event of the decretal amount not being satisfied by the sale of lot No. 2, he would be entitled to proceed against lot No. 1 as well. 11. 11. In the circumstances, therefore, it must be held that the order passed by the learned Subordinate Judge is correct and the judgment of the learned single Judge holding to the contrary cannot be upheld. The appeal is allowed with costs. The judgment and decree of the learned single Judge are set aside. The respondent-decree-holder shall now proceed to execute the decree in the manner set out in the agreement between the parties mentioned in the order of the court dated the 21st February, 1961. Hearing fee is assessed at Rs. 250. S.N.P.Singh, J. 12 I agree.