AUSAF ALI Vs. PEAREY LAL AND ANOTHER

JUDGEMENT

(1.) This is a special appeal by a judgment debtor against a judgment of a learned Single Judge of this Court dismissing a second appeal. The learned Single Judge in dismissing that appeal upheld the decision of the first appellate court by which that court held that a payment made by the judgment debtor Appellant on the 5th of July 1947 on the reopening of the civil courts did not amount to compliance with the conditions contained in the compromise decree under which that amount had to be paid by the 15th of June 1947. The compromise in question was arrived at between the parties in a suit for ejectment and arrears of rent. It was field in court on the 14th May 1947. The compromise was that the amount claimed as arrears of rent was decreed and if was provided that the amount would be paid by the judgment debtor by the 15th of June 1947. This was followed by the provision that, if the payment was made by the due date, the judgment debtor would continue as tenant and in future would pay rent at Rs. 10 per mensem. Then there was another condition to the effect that, if he failed to pay the amount by the 15th of June 1947, the suit for ejectment would be deemed to have been decreed and he would be liable to ejectment. The civil courts were closed on 15th June 1947 and the judgment debtor Appellant deposited the amount in court on the 5th of July 1947 when the courts reopened. A question arose whether this was sufficient compliance with the conditions of the compromise or whether he had committed a breach of the conditions so that the suit for ejectment also was to be deemed to have been decreed.

(2.) Learned Counsel for the Appellant has drawn our attention to the fact that the question which has arisen in this special appeal has been considered by various courts in a large number of decisions. The most important of these decisions are those given by this Court. The first of the decisions is contained in Debi Din Rai Vs. Mohammad Ali, ILR 3 All. 850 . That was a pre-emption case where it was held that, if pre-emption money was not deposited on the due date because the courts were closed on that date, the subsequent deposit on the reopening day would amount to full compliance with the terms of the decree. The next case is that of Hirde Narain Vs. Alam Singh, ILR 41 All. 47 : 16 ALJ 892 in which it was held that, if a payment was not made on the due date under the terms of the decree, the judgment debtor could not claim that he had complied with the terms of the decree by making the payment on the reopening of the court while it was open to him to have paid the money outside the court. In this case, the earlier decision in Debi Din Rat's case ILR 3 All. 850 was not brought to the notice of the Bench. Subsequently there came the decision in Revti Ram Vs. Sita Ram, 19 ALJR 49 . This case followed the earlier Allahabad view in Debi Din Rai's case ILR 3 All. 850 cited above but on this occasion the decision in Hirde Narain's case ILR 41 All. 47 was not brought to the notice of the Bench. The matter was, therefore referred to a Full Bench in the case of Mohammad Jan Vs. Shiam Lal and Others, ILR 41 All. 328 : 22 ALD 110 (F.B.) and the decision of the Full Bench in that case is reported. The Full Bench took into account the earlier decisions mentioned above and overruled the decision of Division Bench in Hirde Narain's case ILR 41 All. 47. It may be mentioned that the Full Bench was again dealing with a case of pre-emption where the only course open to the judgment debtor was to deposit the pre-emption money in court as the decree directed the deposit in court and was not a case where money could be paid outside the court to the decree-holder. It was held in that case that, if money was deposited on the reopening of the court immediately after the date fixed for payment which happened to be a closed day, that payment would be full compliance with the terms of the decree. These are the cases of this Court on which Learned Counsel for the Appellant has relied. In addition he has drawn our attention to four decisions of the Madras High Court and one each of the Lahore, Bombay and Nagpur High Courts which have all followed the principle laid down by the Full Bench of this Court in the case of Mohd. Jan, ILR 41 All. 328 cited above. In addition he has also drawn our attention to another decision of this Court in Mohammad Hasim Vs. Radha Kishan, AIR 1925 Allahabad 687 in which also the derision of the Full Bench was followed. In some of these cases, the decree was not in a suit for pre-emption and yet it was held that, because of the applicability of R. 1 of Or. XXI, CPC, one mode of payment available was by deposit in court and if the deposit was made on the reopening day of the court it would be a good payment under the decree in view of R. 1 of Or. XXI, CPC.

(3.) The subsequent decisions of this Court, however, differ. The first of these that may be mentioned is the decision in Kunj Bihari Vs. Bindeshvari Prasad, ILR 51 All. 527 : 1929 ALJ 286 . In this case the Full Bench decision in Mohammad Jan's ILR 41 All. 328 case cited above was distiuguished. It may be noted that one of the judges constituting the Full Bench which decided Mohammad Jan's case ILR 41 Alld. 328 was Sulaiman, J. and he was also a member of the Bench which decided the case of Kunj Bihari, ILR 51 All. 527 The Bench in this later case held that the decision in Mohammad Jan's case ILR 41 All. 328 applied to only those cases where the only course open to the judgment debtor to make payment was by deposit in court and that the reason for that decision was that the judgment debtor was protected by the principle that no person should suffer for the actions of the court or should be compelled to do what is impossible for him to do. In the case of Kunj Bihari, ILR 51 Alld. 527 , the decision in Mohammad Jan's case ILR 41 Alld. 328 was distinguished and the view expressed was that, even if Or. XXI, R. 1, CPC. applied a payment by deposit on reopening of the courts could not be deemed to be a good payment, because it was open to the judgment debtor to make direct payment to the decree holder on the date fixed by the decree even though the courts were closed, he had a course open by which he could comply with the strict terms of the decree and it was case where is was not impossible for him to comply with those terms This decision was later followed by another Division Bench of this Court in Roshan Lal Vs. Ganpat Lal, 1938 AWR (HC) 93 : 1938 ALJ 121 and was further followed by a Division Bench of the erstwhile Chief Court of Oudh in Indal Vs. Chaudhary Ram Nath, 1946 AWR (C.C.) 84 : A.I.R. 1946 Oudh 156 . In both these cases notice was taken of the particular circumstances that there had been compromise decrees and the rights of the parties were to be determined not merely by the terms of the decrees but also by the circumstance that there had been agreements between the parties which lad become parts of the decrees and which could be enforced as agreements. It was held in both these cases that, since the judgment debtors had agreed to make payments by a certain date and a course was open to them of complying with the conditions agreed upon by making direct payment to the decree-holders, the judgment debtors were not entitled to say that they could at their option choose the other course open to them under Or. XXI, R. 1, Code of Civil Procedure of making payments in Court and for that purpose wait till the courts reopened. I was held that, the judgment debtors having obtained concession on agreeing to make payment by the fixed date, they had to comply with that condition in order to get that benefit, as long as it was possible for them to do so by making direct payments to the decree holders. The case before us is exactly similar. In this case also. there was an agreement between the parties under which the Appellant agreed to make payment by the 15th June 1947. It is significant that this agreement was arrived at on the 14th of May 1947 when the Appellant must have been fully aware that the date of payment agreed upon was going to fall during the Civil Courts' vacation. This necessarily implies that the agreement was entered into by the Appellant knowing that, in order to comply with the term agreed upon, he would have to make the payment direct to the decree holder. Having entered into such an agreement, in our opinion, the Appellant cannot now be allowed to fall back upon the provisions of Or. XXI, R. 1, Code of Civil Procedure and claim that he would adopt the method of payment permitted by that provision of law which was impossible for him to adopt for the purpose of satisfying the condition agreed upon and could for that reason disregard that condition. We may mention that this view taken in the subsequent decisions of this Court has also been taken by the Patna High Court in two cases-a Division Bench case Adya Singh Vs. Nasib Singh, AIR 1920 Patna 122 and a Full Bench case in Bhagwat Narain Singh Vs. Sriniwas, AIR 1937 Patna 113 . In the circumstances the Appellant is not entitled to any relief in this appeal and the decision given by the learned Single Judge is correct.