BHOLU RAM Vs. KANHYA S/O MARE

JUDGEMENT

(1.) FACTS giving rise to this execution second appeal may briefly be stated as follows: two rival pre-emptors Kanhaya and Lehri filed two separate suits in respect of a sale in, favour of Bhelu Ram and others, hereinafter referred to as the vendees. On the 11th of February, 1960, the two suits, which had been previously consolidated, were decided and the Court granted a decree declaring Kanhaya as the superior pre-emptor and directed him to deposit a sum of Rs. 20,090. 00 (Rs. 20,000. 00 being the sale price and rs. 90. 00 the cost of registration) into Court by the 11th of March, 1960. In default of this payment by Kanhaya, his suit was to be deemed to have been dismissed and the other pre-emptor Lehri was given further time to deposit the money. It was further declared that out of the amount directed to be deposited by the pre-emptors, the vendees, defendants 1 to 3, were to receive Rs. 16,590. 00 while the balance of the amount of Rs. 3,500. 00 was to be paid to the mortgagees, defendants 4 to 7, out of which Rs. 2,500. 00 were to be paid to Siri Ram, defendant 4. The remaining mortgagees, defendants 5 to 7, were to receive Rs. 1,000. 00. Well in advance of the last date fixed by the decree, Kanhays, the superior pre-emptor, deposited into Court a sum of Rs. 20,000. 00. On the 11th of March, 1960, however, he realised (as stated by Kanhaya) on seeing the copy of the decree-sheet obtained that day that in fact the amount to be deposited was Rs. 20,090. 00. Unfortunately for him, on that day the Presiding Officer was not there. The previous Presiding Officer having been transferred, his successor had not taken charge. Thereafter immediately he contacted Siri Ram, defendant 4, to whom a sum of Rs. 2,500. 00 was to be paid towards the mortgage money as directed by the decree, and paid him Rs. 90. 00 in cash and obtained a receipt from him, which is on record and is Exhibit 'x'. This receipt acknowledged the payment of Rs. 90. 00 and it further stated that only the balance of Rs. 2,410. 00 out of the total amount of Rs. 2,500. 00 was payable to him. Kanhaya also wrote out an application Exhibit D. H. 1 in which, after stating the misunderstanding under which he deposited the amount of Rs. 20,000. 00 in the first instance, he went on to say that he had paid Rs. 90. 00 to Siri Ram to whom Rs. 2,500. 00 was due and that he was filing the receipt with the application; and further that he was offering Rs. 90. 00 in cash for being deposited or being kept in the custody of the Court. On the back of this application, the following is the report of the Reader :

(2.) THE learned trial Court came to the conclusion that the payment of Rs. 90. 00 was made to the mortgagee and Kanhaya came to the Court with the offer of Rs. 90/to be deposited and that there was thus substantial compliance with the decree. These findings were upheld by the lower appellate Court. These findings of fact have to be accepted and are not open to challenge in second appeal.

(3.) THE main point urged on behalf of the learned counsel for the appellants Bholu ram etc. , vendees, was that even if the allegations of Kanhaya are accepted as correct, this did not amount to compliance with the decree which had directed the payment into Court on or before the 11th March, 1960. His main reliance was on the wording of Rule 14, Order XX, Code of Civil Procedure hereinafter referred to as the Code. Sub-rule (1) of this rule runs thus: