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1959 Supreme(Pat) 97
PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Ramsarup Prasad
Versus
Shiva Dutta Prasad
Appeal From Original Order No. 232 of 1956 ;
Decided On : AUGUST 24, 1959
A Court cannot extend the time fixed by consent of the parties for making a deposit if the time is the essence of the contract and the party has made default in making the deposit.
Headnote:
EXECUTION OF DECREE - PAYMENT OF INSTALMENT - VALIDITY - DEFAULT - EXTENSION OF TIME - JURISDICTION OF COURT - CONTRACTUAL TIME LIMIT - ESSENCE OF CONTRACT - DELAY IN DEPOSIT - NEGLIGENCE OF JUDGMENT-DEBTOR - COURT'S ORDER TO NAZIR TO RECEIVE MONEY - FAILURE TO TENDER MONEY - TECHNICALITY - RULE 18, CHAPTER 1, PART X OF THE GENERAL RULES AND CIRCULAR ORDERS (CIVIL), VOLUME 1 - INTERPRETATION - MAXIM NUNC PRO TUNE - INAPPLICABILITY - CONSENT OF PARTIES - JURISDICTION OF COURT TO EXTEND TIME - LACHES ON THE PART OF THE APPLICANT - DELAY ON THE PART OF THE COURT - DISTINCTION.
Fact of the Case:
The appellant, a judgment-debtor, was ordered by the High Court to pay the entire sum of Rs. 7,000 in four instalments, with specific due dates for each instalment. The appellant deposited the first and second instalments on time, but the third instalment was not deposited on or before the due date. The appellant filed an application under Section 47 of the Code of Civil Procedure, claiming that the deposit of the third instalment was valid and operated as a sufficient discharge of the instalment. The application was dismissed by the lower court.
Finding of the Court:
The High Court held that the appellant was responsible for the delay in making the deposit and that the Court had no jurisdiction to extend the time fixed by consent of the parties for making the deposit. The Court found that the appellant had not tendered the money to the Nazir despite the Court's order to receive the money and that the appellant's grievance that the chalan was not passed on time was a technicality.
Issues: 1. Whether the payment of the third instalment was a valid payment and the execution sale was liable to be set aside. 2. Whether the appellant was responsible for the delay in making the deposit. 3. Whether the Court had jurisdiction to extend the time fixed by consent of the parties for making the deposit.
Ratio Decidendi: 1. The Court held that the appellant was responsible for the delay in making the deposit because he did not tender the money to the Nazir despite the Court's order to receive the money. 2. The Court held that the appellant's grievance that the chalan was not passed on time was a technicality and that the appellant should have approached the Court if the Nazir refused to accept the money. 3. The Court held that the Court had no jurisdiction to extend the time fixed by consent of the parties for making the deposit because the time was the essence of the contract and the appellant had made default in making the third deposit.
Final Decision: The appeal was dismissed with costs.
Kanhaiya Singh, J.
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 :
"1. The judgment-debtor appellant shall pay the entire sum of Rs. 7,000 (the price at which lot No. 1 -- the chouse -- has been sold) in four instalments in the following manner: The first instalment of Rs. 2000 shall be paid on or before the 31st August, 1955; the second instalment of Rs. 1,500 shall be paid on or before the 30th November, 1955; the third instalment of Rs. 1,500 shall be paid On or before the 28th February, 1956; and the fourth instalment of Rs. 2,000 shall be paid on or before the 31st August, 1956. In case of default in payment of any of the instalments, on or before the dates fixed for each of those instalments, the appeal shall stand dismissed and the sale of lot No. 1 shall be confirmed.
2. Each of these instalments shall be deposited in the Court of the Subordinate Judge, 3rd Court, Patna, which is the executing Court, on or before the dates fixed for each of the instalments.
3. The costs of this appeal will be borne by the parties."
The appellant deposited the first and second instalments on due dates and they were withdrawn by the decree-holder respondent. On the third occasion the appellant, it is alleged, came to Patna on 27-2-56 for the payment of the third instalment His lawyer was not available and, therefore, the necessary chalan for the deposit of this instalment was filed in the Court below on 28-2-56. The chalan was passed by the Accountant on 29-2-56 and it was presented to the Treasury Officer on the same day and was made over by the treasury to the appellant at 3 P.M. on 29-2-56. As it was too late the money could not be deposited in the bank on that date.
It was actually deposited on 1-3-56. The respondent decree-holder made an application for withdrawal of the amount. But the Court found that the deposit was invalid as it was not made on or before the due date and, therefore, refused payment of the money to the decree-holder. On 10-5-56 the judgment-debtor appellant filed an application under Sec. 47 of the Code of Civil Procedure on the ground that the deposit of the third instalment was a valid deposit and operated as sufficient discharge of this instalment in the eye of law and prayed for acceptance of the same. The learned Subordinate Judge overruled this objection and dismissed the application. Now, the judgment-debtor has preferred this appeal to this Court.
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
