KAN SINGH, J. -
(1.) THIS is a judgment-debtor's appeal and is directed against an order of the Senior Civil Judge, Jalore, dated 20-8-64 in Execution Case No. 43 of 1963.
(2.) THE facts leading to the appeal are briefly these. THE respondents filed a suit for the recovery of an amount of Rs. 13,993/2/- against appellant Rikhab Chand and four others namely, Ghewar Chand, Sonmal, Sardarmal and Sumermal on the basis of a Khata. During the pendency of the suit the parties arrived at a compromise and on the basis thereof the learned Senior Civil Judge, Jalore, passed a decree in favour of the respondents and against the appellant in the following terms: "defendant No. 1 Rikhab Chand shall pay to the plaintiff Rs. 13,501/- in words Rupees thirteen thousand five hundred and one before Falgun Sud 3 of the calendar year. In case of default, defendant Rikhab Chand shall pay the total amount of Rs. 13,993/2/- in words Rupees thirteen thousand nine hundred ninety three and two annas, together with costs of the suit and interest at six percent per annum from the date of the suit namely, 26-7. 60 till payment. THE suit was withdrawn against the defendants other than Rikhab Chand. THE amount, however, was not paid by the appellant to the respondent-decree holders personally, but he appeared in the court of the Senior Civil Judge to deposit the amount and be produced a duly filled in tender form for depositing the stipulated amount of Rs. 13,501 on 25-2-63. THE tender was received by the Munsarim of the Court, but the necessary formalities were not completed on that day and it was eventually returned to the appellant duly signed by the Presiding officer on 28-2-63. We may observe that it was not disputed before us that 26-2-63 was a public holiday on account of Id and 1-3-63 was declared a public holiday on account of the death of Dr. Rajendra Prashad. THE amount came to be deposited in the bank on 2-3-63. THE respondents-decree holders, however, filed an execution petition against the judgment-debtor on 17-5-63 for the execution of the decretal amount of Rs. 13,993/2/ -. A day prior to the filing of the execution petition, the decree-holders applied to the court that the amount of Rs. 13,501/- deposited by the judgment-debtor be paid to their counsel. This amount was actually received by the counsel of the decree-holders on 1-6-63 and the execution thereafter proceeded only in respect of an amount of Rs. 3,700/ -. On 1-7-63. the judgment-debtor Rikhab Chand filed an objection before the Execution court urging therein that the decree had been fully satisfied and the execution petition, therefore, could not proceed. He submitted that before the stipulated time he appeared in Court for depositing the amount and with that purpose he presented the tender on 25-2-63, but the same was not returned to him till 28-2-63, and on that date too, he received it at 12-30, noon, and he could not deposit the amount in the bank as the time for receiving the money at the bank was already over on that day. THE judgment-debtor proceeded to say that as 1 -3 63 had been declared a holiday, he deposited the amount on 2-3-63 at the earliest opportunity. THE judgment-debtor maintained that he was not responsible for the delay,that had occurred in the office of the Court and he should not be made to suffer for no fault of his. In other words, his contention was that the tender on his part being bona fide it was tantamount to full compliance of the decree. This application was opposed by the decree-holder. He submitted that the judgment-debtor had never offered any money to him but, on the contrary, he (decree-holder ) demanded it from him ( judgment-debtor ) on Falgun Vadi 14 in village Gole but the judgment-debtor did not agree to pay the amount to him. He also submitted that there was no, agreement between the parties that the amount shall be paid in the court. Moreover, according to him, the judgment-debtor did not inform him that he was paying the amount in court. THE Decree-holder further took the stand that the orders for depositing the amount had been passed by the court on 25-2-63 when the judgment-debtor had produced the tender and, therefore, the payment of this amount subsequently was attributable to judgment-debtor's own carelessness. It was also averred by him that the judgment-debtor had wrongly stated that the tender was returned to him on 28-2-63 at 12. 30 noon. In short, the stand taken by the decree-holder was that as the judgment-debtor had not complied with the terms of the compromise decree by paying the lesser amount before the expiry of the stipulated period, he was entitled to execute the decree in full. THE parties do not appear to have expressed any desire to lead any evidence and the lower court therefore, heard the arguments and dismissed the petition of the judgment-debtor. THE court held that it was not incumbent on the judgment-debtor to have resorted to the provisions of Order 21 Rule 1 of the Code of Civil Procedure by approaching the Court for the deposit of the decretal amount. That provision is only one of the mode of satisfying the decree and, therefore, when the judgment-debtor chose to deposit the amount in the court he should have deposited it sometime before the amount became due and as that was not done, the decree-holder was entitled to recover the whole amount. THE learned Senior Civil Judge placed reliance on Indal vs. Chaudhary Ramnidh (1) and Roshanlal vs. Ganpatlal (2) in support of his conclusion and he distinguished the cases relied on by the learned counsel for the judgment-debtor.
In the course of the arguments it was strongly contended by Shri Hastimal appearing for the respondents that the tender notice was signed by the Presiding Officer on 25-2-63 and not on 28-2-63. As regards the certified copy of the tender produced by the learned counsel for the appellant for our perusal. Shri Hastimal submitted that the date as has been given under the signature of the officer was in a different ink and therefore, it was suspicious. Accordingly we called for the record of the court of the Senior Civil Judge including the original tender. After perusing it in the presence of both the learned counsel we felt satisfied that the tender was signed by the officer on 28-2-63. There is no data before us to determine at what time the tender was actually returned on that day and, therefore, we are not in a position to say whether the amount could have been deposited in the bank on that day. This is however, not the crucial point before us, because the stipulated date for payment was 26-2-63 and that had already passed. The hub of the matter, therefore, is whether the tender made by the judgment debtor in court on 25-2-63 should be taken to be payment of the amount in the court on that day for the purposes of the compromise decree.
Shri Lodha appearing for the appellant argued that Order 21 Rule 1 of the Code of Civil Procedure gives an option to the judgment-debtor either to pay the amount to the decree-holder into the court whose duty it is to execute the decree. The tender of the amount in court, in terms of the decree, should, therefore, be taken to be satisfaction of the decree. He placed reliance on Chatlapalli Suryaprakasa Rao vs. Polisetti Venkataratman (3), M. Suryanarayana Rao vs. B. Chinna Konda (4) Mt. Gomti vs. Lachmandas (5) and Ramswarup vs. Kapurchand (6 ). Shri Lodha tried to distinguish the cases relied on by the learned Senior Civil Judge on the ground that in these cases the amount was tendered in court after the stipulated date, whereas in the present case the amount was tendered in court on 25-2-63, that is, a day before the expiry of the stipulated period. Shri Lodha also submitted that the decree-holder should be taken to have condoned the delay, if any, in depositing the amount when he applied for the payment of money to his counsel and later on withdrew it. Thus receiving of money, according to Shri Lodha would be in pursuance of the compromise decree, as otherwise its attachment would be necessary.
Shri Hastimal, on the other hand, submitted that the judgment-debtor was not acting bona fide when he produced the tender form in the court and thereafter he had not acted with due diligence. According to Shri Hastimal, the judgement-debtor should have seen that the amount was actually paid to the decree-holder before the expiry of the stipulated period. He argued that the period given in the decree could not be extended or altered by the court, as sec. 148 of the Code of Civil Procedure did not apply in such a case. Shri Hastimal maintains, the judgment-debtor should have paid the amount to the decree-holder himself, as it was so expressly provided in the decree. As regards the plea of waiver, Shri Hasti Mal contends, that this plea should not be allowed to be realised in the appeal for the first time, as it was never raised or argued before the first court. As regards the cases cited by Shri Lodha, Shri Hastimal submitted that they were all cases where the money was required to be deposited in court before a certain date, but the present is a case where two alternative modes of payment were available to the judgment-debtor and if, the judgment debtor chose to take the alternative mode of making payment through the court, then it was his duty to see that the amount was paid before the expiry of the stipulated period.
Now the crux of the matter as already observed by me is whether the tender made by the judgment-debtor in court on 25-2-63 amounted to compliance of the decree which we have already set out above.
In Mt. Gomti vs. Lachman Das (5) it was observed by learned Judges in dealing with a case under O. 21 Rule 85 of the Code of Civil Procedure that bona-fide tender amounts to payment unless there was a suggestion from the other side that the application was not in a position to make the payment in time when he filed the tender in court. In that case one-fourth amount had been deposited by the purchaser on 2-11-1982 and the remaining amount was to be deposited within a. period of 15 days. On the 15th day the purchaser filed a tender in court offering to pay the remaining purchase amount. The Presiding Officer signed the tender at 3-00 P. M. and returned it to the applicant. According to the usual procedure the applicant was to deposit the cash in the bank through the local treasury. This was done by the purchaser on 18-11-1932. It was in these circumstances that the learned Judges observed that it was the settled law that a bona fide tender amounts to payment. The learned Judges relied on an earlier Full Bench case of the same court reported as B, an Advocate vs. Judges of the High Court of Allahabad, AIR 1933 Allahabad 241.
It is true sec. 148 of the Code of Civil Procedure does not apply to periods fixed by a decree for extending the time of payment fixed by a decree. But this was not the question in the Allahabad case (5 ). The learned Judges considered whether the tender of an amount which was bona fide be taken to be tantamount to payment on the date fixed. The learned Judges observed that the effect of a tender was in offer to the court for payment if it was prepared to accept the amount therein entered. If for its own convenience the court directs the person offering payment to deposit elsewhere, then the person liable to pay should be deemed to have done his part of undertaking when he offered to pay. The case, therefore, cannot be distinguished on the ground urged by Shri Hastimal.
In M. Suryanarayana Rao vs. B. Chinna Konda (4) the learned Judges were considering whether the application for the challan by a decree-holder pur* chaser for depositing the amount and his being prevented from depositing the amount of the purchase money by the action of the court or the treasury concerned was tantamount to deposit of money. The learned Judges observed as follows: "if the decree-holder purchaser discharged his duty in applying for the challan and if he was prevented from depositing the amount of purchase money and general stamp within the prescribed date, not by his default but by the action of the Court or the treasury concerned, the deposit must be deemed to have been made within the time prescribed. In such circumstances, it is deemed that the mandatory provisions of R. 85 are complied with. It is as if the amount was paid within the time prescribed, when there is nothing on the record from which it can be held that, after the decree-holder applied for the challan in Court, was guilty of any laches. " This again was not a case where there was any question for resorting to provisions of sec. 148 of the Code of Civil Procedure, but the application for the challan was itself taken to be compliance of the provisions of Order 21 Rule 85 so far as the deposit of the amount was concerned.
In Chatlapalli Suryaprakasa Rao vs. Polisetti Venkataratnam (3), which was a case of payment of instalment in terms of a compromise decree a question arose whether there was any default in the payment of the second instalment. In that case a day previous to that on which the second instalment was due, the judgment debtor had obtained a challan. As, on the day the instalment was to be paid was a holiday, he paid the instalment in the bank on the following day. The decree of course, did not provide to whom the money was to be paid. In these circumstances the learned Judges held that the judgment-debtor did not commit default in payment of the second instalment and consequently there was no default of two successive instalments as would entitle the decree-holder to recover the entire amount.
In Ramswarup vs. Kapur Chand (6), which is a Bench decision of this Court, the question that fell for consideration was whether the security amount in connection with an election petition under the Rajasthan Town Municipalities Election Rules had been deposited within time. The learned Judges observed that though the mere filing of an application for depositing the amount was not sufficient if the petitioner had no money with him for deposit ing it in court on that day, yet when the tender form was produced in court and the tender was returned after proper orders on the next day, the applicant could not have deposited the amount before the tender form was received by him; Therefore, he could not be said to be negligent or at fault. In these circumstances the learned Judges held that the deposit made by the applicant on the next day shall be deemed to have been made on the day the tender form was produced in court. The reasoning of the learned Judges shows that what was of the essence was the making of a valid tender in time and when it is not suggested that the applicant had no money or that the tender was not bona fide, the amount shall be deemed to have been paid in court on the day the tender itself was made. In other words, by legal fiction a valid tender which is bona fide will be as good as the making of payment itself. It is true, in this case also the amount was required to be paid under the law before the Election Tribunal, but the learned Judges had not decided the matter on the ground of the applicability of sec. 148 of the Code of Civil Procedure but had come to the conclusion that the tender itself was as good as payment. Thus the essence of the matter was whether a particular tender made should or should not be taken to be as good as payment made within time. This will depend upon the facts and circumstances of each case. If the tender, is according to law and is, therefore, a valid one and is also bona fide and there is no suggestion that the tenderer had no ready money with him, then the tender should be taken to be as good as making the payment.
In Indal vs. Chaudhary Ramnidh (1) and Roshanlal vs. Ganpatlal (2) the tender was made after the expiry of the stipulated period and, therefore, these cases, in our view, are clearly distinguishable.
Shri Hastimal also placed reliance on Kunj Behari Singh vs. Bindeshri Prasad (7 ). In that case according to a compromise decree the decretal amount was to be paid in instalments on certain fixed dates and it was stipulated that in default to pay one instalment the whole amount was to fall due. On the date of the payment of the first instalment the court was closed and the tender was filed when the court re-opened. It was in these circumstances that the learned Judges held that there was a default in the payment of the first instalment. Therefore, whatever we have said about the aforementioned two cases cited by Shri Hastimal apply to this case as well.
(3.) NOW let us closely examine the facts of this case. On 25-2-63, the judgment-debtor put in an application before the court alongwith the tender form duly filled in. In the application he stated that in the suit described in the title of the application compromise had been arrived at on 10-1-63 and in full satisfaction of the claim of the plaintiff the defendant was to pay Rs. 13,501/- before Falgun Sud 3rd. Accordingly the defendant was depositing the amount on that day, that is, Falgun Sud 2nd by the tender. He, therefore, requested the court that the amount be got deposited and in full satisfaction of the suit claim a receipt be got executed in his favour from the defendant. On this application there is a note of presentation and an order to make the report on that day. The clerk concerned reported on that day saying that according to Razinama, the defendant was depositing the amount of Rs. 13,501/-"today on 25-2-63". It was further noted that he was doing it through tender. On this report there is an order of the Civil Judge on 25-2-63 that the amount be deposited. The tender was returned to the petitioner on 28-2-63. NOW, according to the General Rules (Civil) 1952, by which the procedure for payment of money in court is governed, the mode of payment of money in court is by means of a tender upon a printed triplicate form. On receipt of the tender there has got to be an office report and then the tender is to be given back to the tenderer. The tenderer then takes the two tender forms to the treasury and the amount is deposited. We may reproduce Rules 255, 256, 257, 258 and 259 in this connection: "rule 255. Payment of money into court shall ordinarily be made by means of a tender upon a printed triplicate form. The applicants shall enter in the court language the particulars required in columns 1 to 4 of the triplicate form of tender (F. 21) The applicant shall then hand the tender to the Munsarim or clerk of the Court. " "rule 256. The Munsarim shall then call upon the official in-charge of the record of the case for an office report as to whether the amount and nature of the payment tendered and the number of the suit, if any, are correct, and whether the payment is due from the person on whose account it is tendered Any necessary corrections shall be made, and the Munsarim shall then sign the tender and enter it in the register of Challans prior to the order for receipt of payment being passed. " "rule 257. The order to receive payment shall be prepared in the office of the court and shall be enfaced upon the duplicate and triplicate forms of the tender, and shall run in the name of the Treasury or Receiving Officer as prescribed in rules 250, 251 and 252. The order shall be signed by the Presiding Judge for all amounts payable under Head of Account (1) (a) and (2) and by the Munsarim for all amounts payable under Head of Account (1) (b ). The original tender shall be retained in safe custody by the Munsarin, the duplicate and triplicate forms being returned to the applicant for presentation and payment of the money to the officer named in the order endorsed thereon. " "rule 258. The Munsarim shall be responsible that no unnecessary delay occurs in obtaining the office report and the order to receive payment and in returning the duplicate and triplicate forms of tender to the applicant. " "rule 259. On presentation of the two tender forms and on payment of the money to the officer named in the court's order to receive payment, the applicant shall receive as an acknowledgment one of the forms of tender duly signed; and the other form shall be retained as a voucher by the Treasury or Receiving Officer and pasted in a filebook. "
A perusal of Rule 258 shows that it is the Munsarim who is responsible for seeing that no unnecessary delay occurs in obtaining the office repot and the order to receive payment and in returning the duplicate and triplicate forms of the tender to the applicant. Therefore, we are unable to hold that the judgment-debtor was in any way responsible for the delay in the return of the tender form.
Now there can be no gainsaying the fact that though the decree was a compromise decree all the same the money was still payable under a decree and, therefore, the judgment-debtor could resort to the mode of paying money under the decree in accordance with Order 21 Rule 1 of the Code of Civil Procedure. The terms of the decree, in our opinion, did not debar the judgment-debtor from paying the money in court. We do not find any substance in Shri Hastimal's contention that there was any special direction in the decree for paying the amount only to the decree-holder out of court. The decree is in usual form ordaining the defendant to pay the amount decreed to the plaintiff. We are unable to construe it as a special direction for paying the amount only to the decree-holder out of court and not otherwise. Since the judgment-debtor had the right to pay the amount in court and he made a valid tender of the decretal amount as per the application accompanying the tender form, we have no reason to think that this was not a valid and a bona fide tender. It has not been suggested that the judgment-debtor had no ready cash in hand on that day. Coupled with this, the court had passed the order that the amount be deposited and the subsequent delay in return of the tender form is not attributable to the judgment-debtor. In these circumstances the tender made, by the judgment debtor was tantamount to payment made in court specially when that tender was followed by actual payment in the treasury on 2-3-63.
In view of our conclusion on the first point, we are not called upon to enter into the discussion of the second point raised by Shri Lodha about there being waiver on the part of the decree-holder or Shri Hastimal's objection to the entertaining of this plea for the first time in appeal.
In view of what we have discussed above, we hold that the learned Senior Civil Judge was in error in holding that the judgment-debtor had contravened the terms of the compromise decree and that the decree has not been satisfied in terms.
In the result, we hereby accept this appeal, set aside the order of the learned Senior Civil Judge, Jalore, dated 20 8-64 and hereby dismiss the execution petition filed by the respondent decree-holder. In the circumstances of the case we leave the parties to bear their own costs. .