RAMBILAS RAI SINGH Vs. RAMJI RAI SINGH

JUDGEMENT

(1.) The civil revision and the Miscellaneous Appeal, relating to the same matter, have been heard together and will be disposed of by one judgment. They have been filed against the order refusing to set aside a sale held in execution case No. 1423/463 of 1955 in the court of the 1st Additional Munsif Arrah, in the following circumstances. Prior to the impugned sale, by consent of the parties, the executing court by its order dated 14-4-1956 allowed eight instalments for payment of the decree, the first instalment falling due on 15-6-1956. The order reads as follows:-

(2.) The sole question in this case is whether the sale was liable to be set aside. It is manifest that the first instalment was not paid on 15-6-1956. The amount was actually deposited on 20-6-1956. There was, therefore, clear default on the part of the judgment debtor which made the entire decree remaining unpaid immediately recoverable. An application for issue of chalan to deposit the money was no doubt made on 15-6-1956. The application, however, was defective and was, therefore, returned. Mere presentation of an application for permission to deposit is not tantamount to actual deposit pursuant to the consent order. The default, therefore, had taken place. Learned counsel on behalf of the judgment debtor raised two contentions, first, that the time was not of the essence of the contract or, more precisely, of the order of the Court, with the result that the deposit, though made on 20-6-1956, was a valid deposit, and the sale held subsequently was a nullity; and second, that in the circumstances of this case, the deposit, though made on 20-6-1956, should be deemed to be a valid deposit, in accordance with the order of the Court. The first argument is not sustainable on the terms of the order of the court. It will appear that in the event of default in payment of any of the instalments the decree holder was entitled to realise the entire amount due at once in the said execution proceeding. The fact that the consequence of the default in payment of the instalments was that the entire decree remaining unpaid became executable at once shows that the time was clearly of the essence of the contract. In face of the order it is idle to contend that the judgment debtor had the option to pay on the due date or on later dates. Learned counsel for the judgment debtor referred to the decision in Mt. Nand Rani v. Durga Dass, AIR 1924 Pat 387, Kandarpa v. Banwari, AIR 1921 Cal 356 (2) and Mangal Singh v. Sundersan Pd., 1960 Pat LR 38. None of these cases has any relevancy in the present case. In the first two cases, there was a forfeiture clause, and it was held therein that the circumstances that a consent decree has been passed on the basis of a compromise does not oust the jurisdiction of the court to grant relief against forfeiture. Indeed, the rule is clear that in every case the court must determine upon the facts of the case whether relief against forfeiture is to be given or not. It was further held in the first case that the time was not of the essence of the contract. In the present case no question of forfeiture is involved and, as held above the time was of the essence of the contract. As laid down by a Bench of this court in Sheo Prasad Lal v. Tapeshwar Mahto, ILR 13 Pat 1 : (AIR 1933 Pat 563), the provision in a compromise decree that in the event of failure to pay the instalments, the whole amount of the original decree would be recoverable was not in the nature of a penalty or forfeiture giving the right to equitable relief. A similar provision occurs in the consent order in question, and therefore, this consent order cannot be regarded as one involving penalty or forfeiture so as to entitle the judgment debtor to equitable relief. These cases were therefore decided on different principles of law which do not arise in the present case. In that case of Mangal Singh, 1960 Pat LR 38, on the date fixed for the sale, the judgment debtor filed a chalan for depositing the money to avoid sale, and the court ordered the cashier of the court to receive the amount "and credit the same if tendered before 3 P.M. that day. The judgment debtor deposited the money before 3 P.M. as ordered by the court. In spite of that order, the sale took place before 11-30 a.m. In these circumstances, the sale was set aside. It is manifest that the sale took place due to mistake on the Part of the officers of the court, and the judgment debtor was not to blame. Therefore, the maxim nunc pro tune applied and the sale was rightly set aside. The position in the instant case was entirely different. The sale was brought about by deliberate default on the part of the judgment debtor to make deposits on due dates. These cases, therefore, are not in point and do not help him at all. I may refer in this connection to a Bench decision of this court in Kisan Gopal v. Madan Lal, AIR 1937 tat 542, which lays down the circumstances in which a court can relieve against forfeiture. I would reproduce below the observations of the court:-

(3.) As regards the second contention, the deposit made on 20-6-1956, be regarded as a valid deposit, because the judgment debtor and not the court was responsible for this delay. The judgment debtor appeared before the court on the last day for the payment of the first instalment i.e. on 15-6-1956. Even then, the chalan that was filed was not properly filled up and was therefore, defective. The chalan was returned to the judgment debtor. Still, He did not care to file a duly filled in chalan then and there. He took five days to file a fresh and corrected chalan and to deposit the money. If for any reason whatsoever, the chalan was defective and returned, the judgment debtor must have known that the money could not be deposited on 15-6-1956 by following the ordinary procedure. The proper course for him to adopt was to approach the court with a prayer for acceptance of the money in cash, which is generally done. The danger of waiting until the very last moment for taking necessary steps has been pointed out by this court repeatedly. Still, the parties persist in their habit of putting things off to the last moment. If they so behave, they have only themselves to blame, if any order adverse to them is passed by the court. Reference may be made in this connection to the observations of this court in Ramsarup Prasad v. Shiva Dutta Prasad, 1959 BLJR 700: (AIR 1960 Pat 560). The fact remains that the judgment debtor defaulted, without valid reason, in making the deposit, and, therefore, the court was right in refusing to extend the time for payment. As was held in the case aforesaid, where a party is entirely responsible for the delay in making the deposit the maxim nunc pro tune has no application. Where the court has fixed, by consent of the parties, specific date for payment of the money and the time is of the essence of the contract and no deposit is made within the time fixed by the contract of the parties, then the court has no jurisdiction to extend the time for payment of the deposit. The second contention is equally without substance.