RIKHAB CHAND Vs. SANKAL CHAND

JUDGEMENT

(1.) THIS is a judgment-debtor's appeal and is directed against an order of the Senior Civil Judge, Jalore, dated 20-8-64 in Execution Case No. 43 of 1963.

(2.) THE facts leading to the appeal are briefly these. THE respondents filed a suit for the recovery of an amount of Rs. 13,993/2/- against appellant Rikhab Chand and four others namely, Ghewar Chand, Sonmal, Sardarmal and Sumermal on the basis of a Khata. During the pendency of the suit the parties arrived at a compromise and on the basis thereof the learned Senior Civil Judge, Jalore, passed a decree in favour of the respondents and against the appellant in the following terms: "defendant No. 1 Rikhab Chand shall pay to the plaintiff Rs. 13,501/- in words Rupees thirteen thousand five hundred and one before Falgun Sud 3 of the calendar year. In case of default, defendant Rikhab Chand shall pay the total amount of Rs. 13,993/2/- in words Rupees thirteen thousand nine hundred ninety three and two annas, together with costs of the suit and interest at six percent per annum from the date of the suit namely, 26-7. 60 till payment. THE suit was withdrawn against the defendants other than Rikhab Chand. THE amount, however, was not paid by the appellant to the respondent-decree holders personally, but he appeared in the court of the Senior Civil Judge to deposit the amount and be produced a duly filled in tender form for depositing the stipulated amount of Rs. 13,501 on 25-2-63. THE tender was received by the Munsarim of the Court, but the necessary formalities were not completed on that day and it was eventually returned to the appellant duly signed by the Presiding officer on 28-2-63. We may observe that it was not disputed before us that 26-2-63 was a public holiday on account of Id and 1-3-63 was declared a public holiday on account of the death of Dr. Rajendra Prashad. THE amount came to be deposited in the bank on 2-3-63. THE respondents-decree holders, however, filed an execution petition against the judgment-debtor on 17-5-63 for the execution of the decretal amount of Rs. 13,993/2/ -. A day prior to the filing of the execution petition, the decree-holders applied to the court that the amount of Rs. 13,501/- deposited by the judgment-debtor be paid to their counsel. This amount was actually received by the counsel of the decree-holders on 1-6-63 and the execution thereafter proceeded only in respect of an amount of Rs. 3,700/ -. On 1-7-63. the judgment-debtor Rikhab Chand filed an objection before the Execution court urging therein that the decree had been fully satisfied and the execution petition, therefore, could not proceed. He submitted that before the stipulated time he appeared in Court for depositing the amount and with that purpose he presented the tender on 25-2-63, but the same was not returned to him till 28-2-63, and on that date too, he received it at 12-30, noon, and he could not deposit the amount in the bank as the time for receiving the money at the bank was already over on that day. THE judgment-debtor proceeded to say that as 1 -3 63 had been declared a holiday, he deposited the amount on 2-3-63 at the earliest opportunity. THE judgment-debtor maintained that he was not responsible for the delay,that had occurred in the office of the Court and he should not be made to suffer for no fault of his. In other words, his contention was that the tender on his part being bona fide it was tantamount to full compliance of the decree. This application was opposed by the decree-holder. He submitted that the judgment-debtor had never offered any money to him but, on the contrary, he (decree-holder ) demanded it from him ( judgment-debtor ) on Falgun Vadi 14 in village Gole but the judgment-debtor did not agree to pay the amount to him. He also submitted that there was no, agreement between the parties that the amount shall be paid in the court. Moreover, according to him, the judgment-debtor did not inform him that he was paying the amount in court. THE Decree-holder further took the stand that the orders for depositing the amount had been passed by the court on 25-2-63 when the judgment-debtor had produced the tender and, therefore, the payment of this amount subsequently was attributable to judgment-debtor's own carelessness. It was also averred by him that the judgment-debtor had wrongly stated that the tender was returned to him on 28-2-63 at 12. 30 noon. In short, the stand taken by the decree-holder was that as the judgment-debtor had not complied with the terms of the compromise decree by paying the lesser amount before the expiry of the stipulated period, he was entitled to execute the decree in full. THE parties do not appear to have expressed any desire to lead any evidence and the lower court therefore, heard the arguments and dismissed the petition of the judgment-debtor. THE court held that it was not incumbent on the judgment-debtor to have resorted to the provisions of Order 21 Rule 1 of the Code of Civil Procedure by approaching the Court for the deposit of the decretal amount. That provision is only one of the mode of satisfying the decree and, therefore, when the judgment-debtor chose to deposit the amount in the court he should have deposited it sometime before the amount became due and as that was not done, the decree-holder was entitled to recover the whole amount. THE learned Senior Civil Judge placed reliance on Indal vs. Chaudhary Ramnidh (1) and Roshanlal vs. Ganpatlal (2) in support of his conclusion and he distinguished the cases relied on by the learned counsel for the judgment-debtor.

(3.) NOW let us closely examine the facts of this case. On 25-2-63, the judgment-debtor put in an application before the court alongwith the tender form duly filled in. In the application he stated that in the suit described in the title of the application compromise had been arrived at on 10-1-63 and in full satisfaction of the claim of the plaintiff the defendant was to pay Rs. 13,501/- before Falgun Sud 3rd. Accordingly the defendant was depositing the amount on that day, that is, Falgun Sud 2nd by the tender. He, therefore, requested the court that the amount be got deposited and in full satisfaction of the suit claim a receipt be got executed in his favour from the defendant. On this application there is a note of presentation and an order to make the report on that day. The clerk concerned reported on that day saying that according to Razinama, the defendant was depositing the amount of Rs. 13,501/-"today on 25-2-63". It was further noted that he was doing it through tender. On this report there is an order of the Civil Judge on 25-2-63 that the amount be deposited. The tender was returned to the petitioner on 28-2-63. NOW, according to the General Rules (Civil) 1952, by which the procedure for payment of money in court is governed, the mode of payment of money in court is by means of a tender upon a printed triplicate form. On receipt of the tender there has got to be an office report and then the tender is to be given back to the tenderer. The tenderer then takes the two tender forms to the treasury and the amount is deposited. We may reproduce Rules 255, 256, 257, 258 and 259 in this connection: "rule 255. Payment of money into court shall ordinarily be made by means of a tender upon a printed triplicate form. The applicants shall enter in the court language the particulars required in columns 1 to 4 of the triplicate form of tender (F. 21) The applicant shall then hand the tender to the Munsarim or clerk of the Court. " "rule 256. The Munsarim shall then call upon the official in-charge of the record of the case for an office report as to whether the amount and nature of the payment tendered and the number of the suit, if any, are correct, and whether the payment is due from the person on whose account it is tendered Any necessary corrections shall be made, and the Munsarim shall then sign the tender and enter it in the register of Challans prior to the order for receipt of payment being passed. " "rule 257. The order to receive payment shall be prepared in the office of the court and shall be enfaced upon the duplicate and triplicate forms of the tender, and shall run in the name of the Treasury or Receiving Officer as prescribed in rules 250, 251 and 252. The order shall be signed by the Presiding Judge for all amounts payable under Head of Account (1) (a) and (2) and by the Munsarim for all amounts payable under Head of Account (1) (b ). The original tender shall be retained in safe custody by the Munsarin, the duplicate and triplicate forms being returned to the applicant for presentation and payment of the money to the officer named in the order endorsed thereon. " "rule 258. The Munsarim shall be responsible that no unnecessary delay occurs in obtaining the office report and the order to receive payment and in returning the duplicate and triplicate forms of tender to the applicant. " "rule 259. On presentation of the two tender forms and on payment of the money to the officer named in the court's order to receive payment, the applicant shall receive as an acknowledgment one of the forms of tender duly signed; and the other form shall be retained as a voucher by the Treasury or Receiving Officer and pasted in a filebook. "