1. This is an appeal against an order passed in execution proceedings. The respondents had obtained a decree for the pre-emption of certain property and made an application for execution of the decree, that is, they asked to be put into possession. The appellants raised an objection that the decree could not be enforced because the amount which the respondents had been ordered to pay in order to obtain the decree for preemption had not been paid within the specified period. That period was on 20th October 1934. One of the respondents Ablak Singh made a tender to the Court or that date in which he asked for permission to pay in the money which was a sum of about Rs. 4,000. It has been proved by the evidence of Sardar Singh and other witnesses that the tender was returned by the Court after 1 p.m. The 20th October, was a Saturday and the treasury would have been closed at the time when the tender was returned. It was necessary for Ablak Singh to get the signature of the treasury officer before he could actually deposit the money in the Imperial Bank. He could not get the signature on 20th October. The 21st October was a Sunday. He went to the treasury on 22nd October but the tender with the signature of the treasury officer upon it was not returned to him till after 2 p.m. He then went to the Imperial Bank where he arrived shortly after 3 p.m. He was then informed that the bank had closed their business for the day and were not prepared; to accept the deposit. The money was paid in on 23rd October. The whole question is whether it should be deemed that the money was paid in on the date when the tender was made to the Court or upon the date when the actual deposit was made in the Imperial Bank.
2. There is the authority of two cases of this Court, namely, Bahadur Lal v. Judges of High Court, Allahabad : AIR1933All241 and the case in Gomti v. Lachman Das Champa Ram A.I.R. 1943 All. 817 which are authorities for the proposition that a. tender, if it is a valid tender, shall be evidence that the money has been deposited. The validity of the tender will depend upon the fact whether it is a real tender in the sense that the applicants are able and willing to pay in the money at the time when the tender is made. If the tender is fictitious in the sense that there is either no intention on the part of the applicants or no possibility on their part to pay the money then the tender will not be valid and will not amount to a deposit of the sum which has to be paid. We accept these rulings and are prepared to follow them. In this case the tender was made certainly within time. There is nothing to show that it was a fictitious tender in the sense that the applicants would have been unable to pay the money if the tender had been returned to them in sufficient time to enable them to do so. There is the evidence of two witnesses, Sardar Singh and Jangi Singh. Sardar Singh has deposed that he went with Ablak Singh to the Court on 20th October, that he had at that time a deposit of about Rs. 4,000 in the Imperial Bank and that he would have advanced a part of the amount due from Ablak Singh. The other witness Jangi Singh has deposed that he went to the Court with Ablak Singh and that he had in his possession a sum of Rs. 1,000 which he would have deposited on behalf of Ablak Singh. There is no reason for disbelieving this evidence. Sardar Singh did not, in fact, withdraw a part of his deposit from the Imperial Bank till 23rd October, but he had no reason to do so as Ablak Singh had not received the tender which would have enabled him to pay the money on an earlier date. There is no reason for thinking that Sardar Singh would not have withdrawn a part of his deposit on 20th October if it had been necessary for him to do so. In the same way there is no reason for holding that Jangi Singh would not have advanced Rs. 1,000 on 20th October. We are satisfied that a valid tender was made on 20th October and that this constituted payment of the amount due from the respondents within the time allowed by the pre-emption decree. This is also the finding of the learned Judge of the lower appellate Court. We dismiss the appeal with costs.