CHANDULAL CO Vs. NIHALCHAND PANNAJ

JUDGEMENT

(1.) THIS is judgment - debtors' appeal against the dismissal of their chamber summons for setting aside the attachment levied under warrant of attachment dated 14-1-1970. The relevant facts are as follows :-

(2.) ON the summons for judgment taken out by the plaintiff, a decree on admission for Rs. 4,529. 74 and interest and costs was made against the judgment - debtors. The decree was made payable by monthly instalments of Rupees 200/- with a direction that the first of such instalments be paid on September 23, 1968 and the subsequent instalments on or before the 23rd of each succeeding month. The decree provided that in default of payment of any two instalments the whole of the decretal balance then due should become payable and accordingly the plaintiff should be at liberty to apply for recovery of the outstanding balance by execution of the decree.

(3.) ADMITTEDLY, the debtors made first default in payment of Rs. 200/- payable on September 23, 1969. The Second default was alleged to have taken place in respect of instalment of Rs. 200/- payable on December 23, 1969. The City Civil Court which had passed the decree was closed for Christmas holidays between December 23, 1969 and January 4, 1970, and the defendants made deposit of Rs. 200/- in Court on January 5, 1970. The plaintiff's case was that by non-payment of Rs. 200/- on December 23, 1969 and January 4, 1970, and the defendants made deposit of Rs. 200/- in Court on January 5, 1970. The plaintiff's case was that by non-payment of Rs. 200/- on December, 23, 1969. The plaintiff accordingly, after instituting an application for execution, got issued the warrant of attachment dated January 14, 1970. Attachment was levied by service of the warrant on January 19, 1970. The defendants thereupon took out the above chamber summons for raising of the attachment. The contention of the defendants in the trial Court was that under Order 21, Rule 1 of the Code of Civil Procedure, all moneys payable under a decree could be at the option of the debtor paid in three different manners as mentioned in sub-rule (1) of Order 21. The money could be paid into Court whose duty it is to execute the decree or by payment to the decree - holder out of Court or otherwise in the manner as the Court which made the decree directs. The submission on behalf of the debtors was that all the previous instalments were paid by depositing the money into Court. Rs. 200/- which was payable on December 23 was at the option of the debtors payable into the City Civil Court. That Court was enjoying December holidays on December 23. The payment made on the reopening day on January 5 was valid payment for satisfaction of the instalment that was payable on December 23. This was so because of the scheme of Order 21, Rule 1. This submission was in consonance with the findings made by the High Court at Nagpur in the case of Premchand Bhikabhai v. Ramdeo Sukdeo, AIR 1949 Nag 141, and the decision of the Madhya Pradesh High Court in the case of Rakhadoo v. Narayan, AIR 1959 Madh Pra 352.