Patna High Court
Ramsarup Prasad vs Shiva Dutta Prasad on 24 August, 1959
Equivalent citations: AIR1960PAT560, AIR 1960 PATNA 560
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. The question involved in this appeal is whether the payment of the third instalment of Rs. 1500 was a valid payment and the execution sale was liable to be set aside. The facts giving rise to this appeal may be shortly stated. The respondent decree-holder applied for execution of the money decree against the appellant judgment-debtor in the Court of the 3rd Subordinate Judge, Patna, The appellant judgment-debtor raised various objections which were all decided against him. He carried an appeal to this Court which was registered as Miscellaneous Appeal No. 341 of 1954. On 9-5-55 this Court disposed of the said appeal by consent of the parties in the following terms :
"1. The judgment-debtor appellant shall pay the entire sum of Rs. 7,000 (the price at which lot No. 1 -- the chouse -- has been sold) in four instalments in the following manner:
The first instalment of Rs. 2000 shall be paid on or before the 31st August, 1955; the second instalment of Rs. 1,500 shall be paid on or before the 30th November, 1955; the third instalment of Rs. 1,500 shall be paid On or before the 28th February, 1956; and the fourth instalment of Rs. 2,000 shall be paid on or before the 31st August, 1956. In case of default in payment of any of the instalments, on or before the dates fixed for each of those instalments, the appeal shall stand dismissed and the sale of lot No. 1 shall be confirmed.
2. Each of these instalments shall be deposited in the Court of the Subordinate Judge, 3rd Court, Patna, which is the executing Court, on or before the dates fixed for each of the instalments.
3. The costs of this appeal will be borne by the parties."
The appellant deposited the first and second instalments on due dates and they were withdrawn by the decree-holder respondent. On the third occasion the appellant, it is alleged, came to Patna on 27-2-56 for the payment of the third instalment His lawyer was not available and, therefore, the necessary chalan for the deposit of this instalment was filed in the Court below on 28-2-56. The chalan was passed by the Accountant on 29-2-56 and it was presented to the Treasury Officer on the same day and was made over by the treasury to the appellant at 3 P.M. on 29-2-56. As it was too late the money could not be deposited in the bank on that date.
It was actually deposited on 1-3-56. The respondent decree-holder made an application for withdrawal of the amount. But the Court found that the deposit was invalid as it was not made on or before the due date and, therefore, refused payment of the money to the decree-holder. On 10-5-56 the judgment-debtor appellant filed an application under Section 47 of the Code of Civil Procedure on the ground that the deposit of the third instalment was a valid deposit and operated as sufficient discharge of this instalment in the eye of law and prayed for acceptance of the same. The learned Subordinate Judge overruled this objection and dismissed the application. Now, the judgment-debtor has preferred this appeal to this Court.
2. The case made out by the appellant is that he was under the impression that the last date for deposit of the third instalment was 29-2-56 and not 28-2-56, that he was ready with the money since 27-2-56, and that even if the due date be taken to be 28-2-56, as mentioned in the order of the High Court, there was no default in payment on his part, since the chalan was presented in time to the Court on 28-2-56, but the deposit could not be made on that date as the chalan was passed not on 28-2-56 but on the next day, 29-2-56. It is alleged that in the circumstances the deposit of the third instalment was in strict compliance with the order of the High Court and should be regarded as a valid discharge of that instalment.
3. It is manifest that the third instalment was to be deposited in the Court of the 3rd Subordinate Judge, Patna, on or before 28-2-56. This was not deposited on the due date. The chalan was no doubt filed on 28-2-56, and it appears that it was passed by the officer on 29-2-56. The grievance of the appellant is that in absence of the chalan he could not make any deposit and that since the chalan was made over to him on 29-2-56 he was not at all responsible for the delay in making the deposit. In my opinion, this contention is wholly beside the point. The facts appearing on the records of this case show that the default arose because of negligence on the part of the judgment-debtor appellant himself. The order-sheet of date 28-2-56 is as follows:
"Judgment-debtor files chalan to deposit 1500/-being the third instalment. Today is the last date for depositing the money. Nazir to receive the money. Put up on 31-8-56 for depositing of Rs. 2000 being the fourth and last instalment."
It will be observed that the learned Subordinate Judge was conscious of the fact that 28-2-56 was the last date for depositing the money and, therefore, he gave a direction to the Nazir to receive the money. In spite of this direction the judgment-debtor appellant did not tender the money to the Nazir. His business did not end with the filing of the chalan in the Court below. He should have also offered the money to the Nazir for acceptance. There is no evidence that this money was offered to the Nazir or that the Nazir refused to accept the money. In view of the positive order of the Court below the Nazir could have hardly refused to accept the money.
Any way, fie fact remains that the money was not tendered to the Nazir. The grievance of the appellant is that the chalan was not made over to him then and there. He knew that according to the agreement the money had to be deposited on that very day. If that were so and if there was no acceptance of the money by the Nazir as directed by the Court, the proper course for him to follow was to approach the Court then and there and see that the money was accepted in due time. This he apparently did not do. The contention is raised on the technical ground that the chalan was not passed on that day. Tritely 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 extraordinary 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 this connection to Rule 18, Chapter 1, Part X of the General Rules and Circular Orders (Civil), Volume 1, This Rule 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."
There is no dispute that Rule 7 referred to in Rule 18 applies to the present case. Now, Rule 18 quoted above is against the appellant. The Rule requires that the payment shall be made direct into Court in cash under the express order of the presiding Officer. It was urged that the order of the presiding Officer was not recorded on the top of the original chalan. This is no doubt true, but in view of the order of the Court dated 28-2-56 recorded in the order-sheet of the case it was not at all necessary to repeat it on the original chalan.
The object of recording the order of the Court on the chalan is that the chalan would provide an authority for the ministerial officers to accept money. The order of the Court as recorded in the order-sheet empowered the Nazir to receive the money and had the same effect as an order recorded on the top of the original chalan. Learned counsel referred to the decisions in Koilpillai Samban v. Sappanimuthu Samban, AIR 1923 Mad 354 (2), Gopala Krishna Pillai v. Kunjithapatham Pillai, AIR 1924 Mad 324, Mt. Gomti v. Lachman Das. AIR 1934 All 817 and Bijoy Singh v. Raja Kirtyanand Singh, AIR 1932 Pat 342. None of these cases has application to the facts of the present case.
In all those cases there was no laches on the part of the applicants. The delay was actually on the part of the Court. The present case is distinguishable. Having regard to the circumstances of the case, more particularly the order of the learned Subordinate Judge dated 28-2-56, the appellant was entirely responsible for the delay in making the deposit and, therefore, the maxim nunc pro tune has no application. Here, the Court had fixed by consent of the parties specific date for payment of the money, and the time was, therefore, the essence of the contract and as no deposit was made within the time fixed by the contract of the parties, the Court had no jurisdiction to extend the time for payment of the deposit. I may refer in this connection to the Bench decision of this Court in Seth Jaher Mal v. G.M. Pritchard, 4 Pat LJ 381 : (AIR 1919 Pat 503), where Dawson-Miller, C. J., made the following observations :
"There is one other matter I should like to draw attention to. It is a matter which is continually being brought to the notice of the Courts in this country, and that is this. It almost invariably happens that one party or the other intending to appeal or to take some other step in the course of an action for which a time limit is prescribed by the rules waits until the very last moment before taking that step. Sufficient time in all these cases is granted to the parties for doing whatever may be necessary for furthering their suit, and if they choose to put off until the very last minute either the filing of the appeal or the taking of any other steps which are necessary part of the prosecution of their case they run a very great risk, and it does not seem to me that it is sufficient for a party to come to Court and say that if everything had gone absolutely smoothly and if no unexpected accident had happened, he would have been in time in taking the steps required for his appeal. One is not entitled to put things off to the last moment, and hope that nothing will occur which will prevent them from being in time.
There is always the chapter of accidents to be considered, and it seems to me that one ought to consider that some accident or other may happen which will delay them in carrying out that part of their duties for which the Court prescribes a tune limit and if they choose to rely upon everything going absolutely smoothly and wait till the very last moment I think they have only themselves to blame if they should find that something has happened which was unexpected but which ought to be reckoned with, and are not entitled in such circumstances to the indulgence of the Court."
4. It follows that the appellant had made default in making the third deposit, and the Court is incompetent to extend the time fixed by consent of the parties for making the deposit. The decision of the Court below was, therefore, right.
5. The appeal is accordingly dismissed with costs.
V. Ramaswami, C.J.
6. I agree.