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Rakhadoo Issoo Kohari Vs. Narayan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Second Appeal No. 7 of 1957
Judge
Reported inAIR1959MP352
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 2; General Clauses Act, 1897 - Sections 10
AppellantRakhadoo Issoo Kohari
RespondentNarayan and ors.
Appellant AdvocateA.D. Deoras, Adv.
Respondent AdvocateS.B. Sen and ;A.N. Mukerji, Advs.
DispositionAppeal allowed
Cases ReferredPremchand v. Ramdeo
Excerpt:
.....and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - in this view, the appellant must be deemed to have satisfied his part of the decree and was properly placed in possession of the mortgage fields......in court on 15-6-1954. 4. after making the deposit, the appellant made an application to the executing court for possession of the mortgage fields. the respondents filed an objection on the ground that the amount was not deposited on the due date. the executing court overruled the objection and delivered the fields to the appellant. the lower appeal court, however, allowed the objection. 5. the view that the amount could not be deposited under order 21, rule 1, civil procedure code, as the decree was not executable at the instance of the respondents finds support from narayanaswami naidu v. rangaswami naidu air 1926 mad 749, this court, however, holds a different view : see premchand v. ramdeo 1949 nag lj 303 : (air 1949 nag 141). therefore, in the absence of a direction in the.....
Judgment:

G.P. Bhutt, J.

1. This appeal arises out of Miscellaneous Judicial Case No. 72 of 1955 of the Court of Civil Judge, Class II, Balaghat.

2. The appellant had sued the respondents for redemption of a mortgage. A consent decree was ultimately passed in these terms :

(a) That the defendants shall place the plaintiff in possession of the land (Kh. No. 168 area 1.42 and kh. No. 187 area 2.20, Rental Rs 12/12/- in Sir Right situated at M. Tuiyaper P. C. No. 19, Tah, Waraseoni, Dist. Balaghat) on the plaintiff's paying Rs. 1450/- to the defendants on or before 31-5-1.954. The parties will hear their own costs.

(b) If the plaintiff fails to pay Rs. 1450/- on or before 31-5-54 then the plaintiff's suit shall stand dismissed and the plaintiff will pay defendants' costs.'

3. The following facts which form part of the record were not disputed before me:

The Civil Courts were closed on 31-5-1954 on account of summer vacation, and reopened on 14-5-1954. The appellant brought the amount of Rs. 1450/- on 14-6-1954 for depositing it in Court. Thereupon the presiding officer sent a memo to the Nazir to receive the amount. The Nazir, however, directed the appellant to bring the amount on the next day as it was tendered after the Treasury hours. The amount was then deposited in Court on 15-6-1954.

4. After making the deposit, the appellant made an application to the executing Court for possession of the mortgage fields. The respondents filed an objection on the ground that the amount was not deposited on the due date. The executing Court overruled the objection and delivered the fields to the appellant. The lower appeal Court, however, allowed the objection.

5. The view that the amount could not be deposited under Order 21, Rule 1, Civil Procedure Code, as the decree was not executable at the instance of the respondents finds support from Narayanaswami Naidu v. Rangaswami Naidu AIR 1926 Mad 749, This Court, however, holds a different view : see Premchand v. Ramdeo 1949 Nag LJ 303 : (AIR 1949 Nag 141). Therefore, in the absence of a direction in the decree that the money was to be paid to respondents personally, the appellant had the option to deposit it in Court, although he could also have adopted other methods of payment.

6. The amount was actually tendered in Court by the appellant on 14-6-1954 when it reopened after the summer vacation. It was not through his fault that it was not accepted on that date. As he had brought the money within the Court hours, the tender was valid : see Mahbub Ali v Bishen Singh AIR 1944 Lah 470. Under Section 10 of the General Clauses Act (Central), which is applicable to the case, the payment could bemade on 14-6-1954 which was the first working day of the Court after the summer vacation. In this view, the appellant must be deemed to have satisfied his part of the decree and was properly placed in possession of the mortgage fields.

7. The appeal is accordingly allowed, the decree of the lower appeal Court is set aside and that of the executing Court is restored. Costs of both the appeals shall be on the respondents. Hearing fee Rs. 25/-.

8. The amount of Rs. 1450/- in Civil Courtdeposit shall be payable to the respondents.


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