LAWS(PAT)-1959-8-16

RAMSARUP PRASAD Vs. SHIVA DUTTA PRASAD

Decided On August 24, 1959
RAMSARUP PRASAD Appellant
V/S
SHIVA DUTTA PRASAD Respondents

JUDGEMENT

(1.) The question involved in this appeal is whether the payment of the third instalment of Rs. 1500 was a valid payment and the execution sale was liable to be set aside. The facts giving rise to this appeal may be shortly stated. The respondent decree-holder applied for execution of the money decree against the appellant judgment-debtor in the Court of the 3rd Subordinate Judge, Patna, The appellant judgment-debtor raised various objections which were all decided against him. He carried an appeal to this Court which was registered as Miscellaneous Appeal No. 341 of 1954. On 9-5-55 this Court disposed of the said appeal by consent of the parties in the following terms :

(2.) The case made out by the appellant is that he was under the impression that the last date for deposit of the third instalment was 29-2-56 and not 28-2-56, that he was ready with the money since 27-2-56, and that even if the due date be taken to be 28-2-56, as mentioned in the order of the High Court, there was no default in payment on his part, since the chalan was presented in time to the Court on 28-2-56, but the deposit could not be made on that date as the chalan was passed not on 28-2-56 but on the next day, 29-2-56. It is alleged that in the circumstances the deposit of the third instalment was in strict compliance with the order of the High Court and should be regarded as a valid discharge of that instalment.

(3.) It is manifest that the third instalment was to be deposited in the Court of the 3rd Subordinate Judge, Patna, on or before 28-2-56. This was not deposited on the due date. The chalan was no doubt filed on 28-2-56, and it appears that it was passed by the officer on 29-2-56. The grievance of the appellant is that in absence of the chalan he could not make any deposit and that since the chalan was made over to him on 29-2-56 he was not at all responsible for the delay in making the deposit. In my opinion, this contention is wholly beside the point. The facts appearing on the records of this case show that the default arose because of negligence on the part of the judgment-debtor appellant himself. The order-sheet of date 28-2-56 is as follows: