1.There is no dispute about the facts in this Execution Second Appeal. Messrs. Punjab and Pepsu Financiers Private Limited, respondent, brought a suit for the recovery of Rs. 7,000 against Harbhagwan, appellant. On 27th of June, 1966, a compromise decree was passed for Rs. 6,000 in favour of the respondent. It was provided therein that if the appellant-judgment-debtor paid Rs. 5,000 to the respondent-decree-holder by instalments, as mentioned in the said decree, the whole decree would stand satisfied. The first instalment of Rs. 1,000 had to be paid on 6th of July, 1966, and the remaining amount of Rupees 4,000 had to be paid by monthly instalments of Rs. 100 each. The instalments were payable on the 10th day of every month. After the payment of the first instalment of Rs. 1000, the second instalment of Rs. 100 was to be paid on 10th of August, 1966. The subsequent instalments of Rs. 100 each were then to be paid on the 10th of every successive month. It was also agreed that in case the first instalment of Rs. 1000 or any three successive instalments of Rs. 100 each were not paid in time, the decree-holder would be entitled to recover the entire unpaid decretal amount at once. The first instalment of Rs. 1,000 was paid by the judgment-debtor on 6th of July, 1966. He, however, did not pay the instalments of Rs. 100 which were due on 10th August, 1966 and 10th of September, 1966. On 8th of October, 1966, he, however, sent Rs. 100 by money order which reached the decree-holder on 12th of October, 1966. The decree-holder refused to take that money order, because it was not received within time. The respondent then treating that as a default sought to execute the decree for the entire unpaid decretal amount.
2. The judgment-debtor filed objections saying that no default was committed by him in the payment of the instalments, and consequently, the decree-holder was not entitled to execute the decree at once for the entire unpaid decretal amount.
3. The executing Court framed one issue inthecase, namely , whether the judgemnt debtor had not committed any default in the performance of te terms of the decree.
4. This issue was decided against the judgment-debtor both bytheexecuting Court and also by the learned Additional District Judge on appeal. That necessitated the filing odf the present Execution Second Appeal.
5. It is undisputed that according to compromise decree, if three successive instalments of Rs. 100 each were not paid in time by the judgment -debtor , the decree-holder would be entitled to recover the whole unpaid decretal amount of once. Admittedly, the instalments due on 10th of August, 1966 and 10th of September 1966, were not paid by the judgment-debtor. The only question for question for decision is whether he paid the instalment due on 10th of October, 1966, within time or not.
6. It is common ground that Rs. 100 were sent by th judgment -debtor by means of a money order on 8th of October, 1966, and that money order reached the decree-holder on 12th of October , 1966, which he, however, refused to accept. Under these circumstances, could it be said that the handing over of Rs. 100 to the Post Office by the judgment-debtor on 8th of October, 1966, amounted to its payment to the decree holder on that date? If that be so, then there had been no default on th part of the judgment-debtor in making payment of that instalment, which had to be paid to the decree-holder by the 10th of October, 1966. The answer to is question will largely depend on the point as to whose agent the post Office was, whether of the remitter or of the payee. According to Section 44 for the Indian Post Office Act of 1898, the person , who sends, the money order, is entitled to recall the same or alter te name of th payee. That section says that a person remitting money through the Post Office by means of a money order may require that the amount of the money order, if not paid to he payee, be repaid to him or be paid to such person other than the original payee, as he may direct That clearly means that till the amount is not actually paid to the payee, the remitter has full control over it. In other words , it would ebtaken as if that money was still with him and over which the payee had no control whatsoever. The post Office, in such circumstances, would be the agent of the remitter. It might have been a different matter if the payee had specifically directed or instructed th remitter to send the money by means of a money order. In that case, it could be argued that the Post Office was the agent fo te payee. In the Instant case, however, there was neither a stipulation in thecompromise-decree that the monthly installments could be sent by moneyorder not had itbeen proved by evidecbne that the decree-holder had specifically instructed the judgment -debtor to remit the instalments through a money order. Consequently, it could not be said that the Post Office was the agent of th respondent decree-holder, with the result that the handing over of Rs. 100 by the judgment-debtor of it on 8th of October, 1966, for sending it to the decree-holder, was not a payment tohim on that date. There was thus a default committed by the judgment -debtor in the payment of that instalment as well. The decree-holder could, therefore,execte the decree for the entire unpaid decretal amount.
7. The view that I have taken above finds support in Raja Ram, v. Bisaram, AIR 1960 All 747, , were it was held----
'Section 44 Post Office Act implies that the remitter, even after the money had been delevered to the post office for transmission by 'money order', retains control over it and he can, before the money is paid to the payee require the Post Office to pay it back to him or to pay tosuch other person other than the original payee as he should direct.The consent of the payee is unnecessary for the carrying out of any such direction or requisition by the remitter which only shows that the Post Office is not the agent of the payee.
A compromise decree provided that if the judgment-debtor paid into the Court a certain lesser amount within one month from 27-4-1956, the entire decretal amount would be deemed to be satisfied but in default of payment as aforesaid, the decree-holder would be entitled to execute the decree for the full amount and costs. The judgment-debtor remitted the stipulated amount by postal money order on 26-4-1956 but it was received by the Court on 30-4-1956. The decree-holder treating this as a default sought to execute the decree for the full amount.
Held that the post office could not be held to be the agent of the Court in instant case. Consequently, the handing over of the money order to the post office on 26th April, 1956, failed to satisfy the requirement of paying the amount into Court as was required by the decree.'
8. In Commissioner of Income Tax, Bombay South, Bombay v. M/s. Ogale Glass Works Ltd., Ogale Wadi, AIR 1954 SC 429, it was remarked -
'There can be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee. After such request the addressee cannot be heard to say that the post office was not his agent and, therefore, the loss of the cheque in transit must fall on the sender on the specious plea that the sender having the very limited right to reclaim the cheque under the Post Office Act, 1898, the Post Office was his agent when in fact there was no such reclamation. Of course, if there be no such request, express or implied, then the delivery of the letter or the cheque to the post office is delivery to the agent of the sender himself.'
9. Similarly, in Kirloskar Bros. Ltd. v. Commissioner of Income Tax, Bombay, AIR 1952 Bom 306, it was observed -
'The posting of the cheque in Delhi does not constitute the receipt by the assessee of the cheque at Delhi, when the assessee has not requested the Government to send the cheque by post. It is only in those cases where the receiver nominates the post office where the receiver nominates the post office as his agent that the posting of the letter constitutes the receipt of it by the receiver at the time and at the place where the letter is posted. Where the post office is not nominated as an agent of the receiver then by posting the letter the sender constitutes the post office his agent and when the letter is delivered to the receiver, it is delivered by the agent of the sender and not of the receiver.'
10. No other point was argued before me.
11. The result is that this appeal fails and is dismissed, but there will be no order as to costs.
12. Appeal dismissed.