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Mt. Gomti Vs. Lachman Das Champa Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All817
AppellantMt. Gomti
RespondentLachman Das Champa Ram and anr.
Excerpt:
- .....rulings of this court and other high courts in which the same view has been taken. we may refer only to the latest case on the point. b, an advocate v. judges of the high court of allahabad : air1933all241 , in which it was held that a valid tender amounts to payment. in this view the learned subordinate judge had no jurisdiction to set aside the sale, payment of the entire purchase money having been made within the time allowed by law. in any case he acted illegally or at least with material irregularity in the exercise of his jurisdiction. accordingly we allow this application for revision, set aside the order of the learned subordinate judge dated 22nd december 1932, setting aside the auction sale, and direct him to proceed according to law,
Judgment:

Niamatullah, J.

1. This is an application under Section 115, Civil P.C., for revision of an order passed by the learned Subordinate Judge of Farrukhabad setting aside an auction sale at which the applicant had been declared the purchaser. The sale took place on. 2nd November 1932. The applicant deposited one-fourth of the purchase money on that date. The remaining three-fourths of the purchase money should have been paid on the fifteenth day before the Court closed. On 17th November 1932, which was the fifteenth day, the applicant filed a tender in the Court concerned offering to pay the remaining purchase money. The presiding officer signed the tender at 3 p.m. and returned it to the applicant. In accordance with the usual procedure the applicant was to deposit the actual cash in the Imperial Bank through the local treasury. This could not be done on that day but was done on 18th November 1932. The lower Court set aside the sale on the ground that the three-fourths of the purchase money was not actually deposited till after the expiry of fifteen days from the date of sale.

2. It is contended in revision that tender amounts to payment and that the applicant should be deemed to have paid the three-fourths of the purchase money on 17th November 1932. We are of opinion that this contention is sound. It is settled law that a bona fide tender amounts to payment. There is no suggestion that the applicant was not in a position to make the payment at the time when he filed the tender in Court. Order 21, Rule 85, Civil P.C., requires an auction purchaser to pay three-fourths of the purchase money 'into Court before the Court closes on the fifteenth day from the sale of the property.' According to the rule of practice which has been made with due regard to the administrative convenience of the Court cash is not received by the Court but is to be deposited in the treasury. Tender is merely an offer to the Court of payment if it is prepared to accept the amount therein entered. If for its own convenience the Court directs the person offering payment to deposit it elsewhere, the person liable to pay should be deemed to have done his part of the undertaking when he offered to pay. The applicant should be deemed to have offered to pay three-fourths of the purchase money on 17th November 1932. The actual deposit in cash was made next day because the practice above referred to required him to deposit it in the Imperial Bank through the treasury. In these circumstances we are of opinion that the applicant should be deemed to have fulfilled all the requirements of Order 21, Rule 85, Civil P.C. There are numerous rulings of this Court and other High Courts in which the same view has been taken. We may refer only to the latest case on the point. B, an Advocate v. Judges of the High Court of Allahabad : AIR1933All241 , in which it was held that a valid tender amounts to payment. In this view the learned Subordinate Judge had no jurisdiction to set aside the sale, payment of the entire purchase money having been made within the time allowed by law. In any case he acted illegally or at least with material irregularity in the exercise of his jurisdiction. Accordingly we allow this application for revision, set aside the order of the learned Subordinate Judge dated 22nd December 1932, setting aside the auction sale, and direct him to proceed according to law,


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