BIBI MOHITUNNISA Vs. MUHAMMAD MOHIUDDIN

JUDGEMENT

(1.) This application is by the judgment-debtor, who applied under Order XXI, Rule 90 of the Code of Civil Procedure, in the execution case, for setting aside the sale of her house. The executing Court refused that application. On appeal that was allowed and the sale was set aside. Against that the decree holder came in appeal to this Court in Miscellaneous Appeal No. 186 of 1966, which was disposed of on the 21st March, 1968, by consent, in the following terms: (i) The sum of rupees 436-75 paise, deposited by the judgment-debtor under six challans, would be withdrawn by the decree holder auction purchaser from the executing Court, where the money was in deposit. (ii) The judgment-debtor shall pay a further sum of Rs. 786/-, in full satisfaction of the claim of the decree holder auction purchaser in four instalments Rs. 150/-bv the 30th April, 1968, Rs. 200/- by the 31st May, 1968, Rs. 200/- by the 29th June, 1968 and Rs. 200/- by the 31st July, 1968. (iii) If the judgment debtor will default in depositing two consecutive instalments or if she fails to deposit the entire amount of Rs. 750/- by the 31st of July. 1968, the sale held in the execution case will stand confirmed and the Miscellaneous Appeal of the decree holder would be allowed with costs throughout. (iv) If, the sum of Rs. 750/- is deposited, as stated above, the sale shall stand set aside and the appellate order (setting aside the sale) will stand confirmed and the Miscellaneous Appeal shall stand dismissed, but, without costs.

(2.) Following the aforesaid order in the Miscellaneous Appeal No. 186 of 1966 the judgment-debtor deposited in the executing Court a sum of Rs. 150/-preceded by two earlier deposits of Rs. 50/-. each on the 22nd March, and 26th April, 1968. There is a question, whether the deposit of Rs. 150/- was by the 30th of April. 1968, as settled by the compromise. That question, however, is immaterial. Even if it was not so, that would not disentitle the judgment debtor, unless the next instalment was defaulted. Learned Counsel on both sides stressed upon the next deposit, to show that either it was in accordance with the terms of the compromise order or otherwise. The fact is, which is not disputed, that a challan for Rs. 200/-, to be deposited, was presented to the executing Court on the 31st of May. 1968, which, however, was passed and delivered back to the judgment debtor on the 1st of June, 1968, which was a Saturday. The next day being a Sunday, the challan had to be revalidated on the 3rd of June, 1968, to enable the deposit to be made in the treasury. After revalidations of the challan and getting it back from the Court, the judgment debtor deposited that amount on the 5th of June, 1968. Learned Counsel for the judgment debtor petitioner urges that the date on which the challan was presented to the Court should be taken as the date of tender of the money in Court, whereas, for the other side, it is pressed that the date of actual deposit in the treasury will be taken into account. In the compromise order in the Miscellaneous Appeal No. 186 of 1966, the judgment-debtor was required to pay the balance of Rs. 750/-by the 31st of July, 1968, in four instalments indicated in that order. It was riot mentioned that she would pay the money to the decree holder. A sum of Rs. 436.75 paise, she had already deposited in the executing Court which the compromise order authorised to be withdrawn by the decree holder. In that context, from the omission of the direction that the judgment debtor would pay to the decree holder hand to hand the balance of the money, it has to be understood that the Court wanted the judgment debtor to pay the money to the executing Court as she had done before. The process through which a payment can be made to a Court is undoubtedly by presenting a challan and getting it passed by the Court and then going to the treasury and depositing the money there on the strength of that challan. Thus, the main and primary act in the process of deposit of money M Court is the presentation of the challan. When and how the challan would be passed by the Court is a matter that entirely rests with the Court and in that respect the depositor has no say. If the challan would have been passed on the same day, as was presented (i.e., on the 31st of May, 1968) and returned to the judgment debtor, she could have forthwith deposited the money in the treasury that day. The delay suffered by the Court in passing and returning the challan cannot be attributed, in any way, to the judgment debtor.

(3.) Learned Counsel for the decree holder opposite party urged however, that the compromise order spoke of payment by certain fixed dates and, therefore, it was incumbent upon the judgment debtor to complete the preliminaries so as to be able to make the actual payment of money to Court by the fixed date. To some extent, he may be right in this contention. But, once the judgment debtor is found to have offered to deposit the money in the shape of presenting the challan to the executing Court itself and the executing Court directing her to deposit it in the treasury instead of accepting the money forthwith then and there, the judgment debtor should be relieved of any coercive consequence due to the actual non-payment of cash money on that date. In that view. I would take that the payment, as ordered in the compromise order in the Miscellaneous Appeal, was offered on the 31st May, 1968, as that money was tendered in the shape of a challan to the executing Court. There was virtual and for all practical purposes substantial compliance with the compromise order in the Miscellaneous Appeal, so far the second instalment was concerned. The penal provision that would have followed in consequence of two consecutive defaults has not been attracted.