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Radha Kishan Vs. Munna Lal and Parbhu Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All591
AppellantRadha Kishan
RespondentMunna Lal and Parbhu Dayal
Excerpt:
civil procedure code (1908), order xxi, rule 89 - execution of decree--application to set aside the sale within limitation--money tendered but not received through treasury officer's action. - - we are not satisfied that the treasury officer could not have arranged for the safe custody of the money until it could be counted in the presence of the judgement-debtor, and we think that it, is probable that he would have made some such arrangement if he had not been under the impression that the judgement-debtor was entitled to three days from the date of the tender within which to pay the money into the treasury......by a judgement-debtor against an order of the subordinate judge of muttra, refusing to set aside a sale held in execution of a decree. the sale took place on the 7th of august, 1914. as september 6th was a sunday, the judgement-debtor was entitled to make an application under order xxi, rule 89, and pay the, sum specified in that rule on september 7th. the evidence shows that the judgement-debtor was not able to raise the money required for the purpose until about 2 o'clock on the afternoon of september 7th. according to the evidence, on september 7th he made an application to the court with a tender in the prescribed form no. 4(sic) filled in, and obtained thereon an order of the court that the money should be deposited in the treasury. he took the money to the treasury shortly before 3.....
Judgment:

Chamier and Piggott, JJ.

1. This is an appeal by a judgement-debtor against an order of the Subordinate Judge of Muttra, refusing to set aside a sale held in execution of a decree. The sale took place on the 7th of August, 1914. As September 6th was a Sunday, the judgement-debtor was entitled to make an application under Order XXI, Rule 89, and pay the, sum specified in that rule on September 7th. The evidence shows that the judgement-debtor was not able to raise the money required for the purpose until about 2 o'clock on the afternoon of September 7th. According to the evidence, on September 7th he made an application to the court with a tender in the prescribed form No. 4(sic) filled in, and obtained thereon an order of the court that the money should be deposited in the Treasury. He took the money to the treasury shortly before 3 p.m., the hour at which the Treasury is closed so far as the public are concerned. The Treasury Officer looked at his watch and said that it was too late to count the money (Rs. 12,735-9-0) on that date, and he observed that the money could be paid at any time within three days of the tender. He was probably referring to words on the duplicate tender 'receive and credit the above sum if tendered to you within three days.' But these word cannot be used for the purpose of extending the period of limitation allowed by law. They are intended to facilitate the checking of the accounts kept by the court. The judgement-debtor says that he accepted the statement of the Treasury-Officer as correct, and as the Treasury Officer declined to take the money, he took it away and paid it into the Treasury on the following day. The Subordinate Judge has held that it is not proved that the money was tendered before 3 p.m. on September 7th, and has accordingly declined to set aside the sale. The evidence that the money was tendered to the Treasury Officer before 3 p.m. is, however, uncontradicted and should, we think, be accepted. The question, however, is whether under the circumstances, the payment required by Order XXI, Rule 89, of the Code of Civil Procedure should be taken to have been made within the time allowed by law. The earned Counsel for the judgement-debtor relies upon the decision of the Calcutta High Court in Mahomed Akbar Zaman Khan v. Sukhdeo Pande (1911) 13 C.L.J. 467, in which it was held, in accordance with the principle actus curiae neminem gravabit, that the payment must be taken to have been made in time where the judgement-debtor had applied to the court under Rule 89, Order XXI, on the 30th day from the sale, and was ready to deposit the required sum in court, and the challan to the treasury had been duly filled up and placed in the hands of the proper officer, but the signature of the presiding officer of the court could not be procured on that day as he had left the court. The result was that the challan was signed on the following day and' on the authority of it the money was received the Treasury Officer. The Calcutta High Court held that the application of the judgement-debtor to have the sale set aside should under the circumstances have been allowed. The present case is not on all fours with the Calcutta case. In the latter it was quite clear that the court by its own action had prevented the judgement-debator from paying the money into court within time. In the present case the question is what the Treasury Officer ought to have done when the money was tendered to him shortly before 3 p.m. on September 7th? We are not satisfied that the Treasury Officer could not have arranged for the safe custody of the money until it could be counted in the presence of the judgement-debtor, and we think that it, is probable that he would have made some such arrangement if he had not been under the impression that the judgement-debtor was entitled to three days from the date of the tender within which to pay the money into the treasury. Under the circumstances we think that it should fee held that the judgement-debtor in this case did all that it was possible for him to do to pay the money into the treasury on September 7th, i.e., within time, and that he was prevented from paying the money by the action of the Treasury Officer, who for this purpose must be regarded as an officer of the court. We, therefore, allow this appeal, set aside the order of the Sub ordinate Judge, and direct the application be disposed of according to law. We make no order as to the costs of this appeal.


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