1. This appeal is brought by Sham Singh decree-holder in a pre-emption decree against an order of District Judge, B. D. Mehra, dated 30-4-1954, reversing the order of the trial Court and thus allowing the objections of the judgment-debtor.
2. Sham Singh obtained a decree for pre-emption and he had to pay the balance of the purchase-price on or before 22-5-1953. The evidence shows that at 10 O'clock on the morning of 22-5-1953, Sham Singh went to the Court, made an application for being allowed to pay the money but as the Presiding Officer of the Court was not there the order which was made was probably made by clerk.
Sham Singh went to the treasury, filed the application and tendered the money for deposit. At about 12 O'clock he was told that it also required the signatures of the Presiding Officer and he took it to the Tahsilder who had been given the power to make such orders, but evidently this application was returned late and when he took the application and the money to the treasury he was told that the treasury had closed and the amount could not be accepted for deposit.
Kewal Krishan Siahnawis A.W. 3 has gone so far as to depose that Sham Singh was shouting that money be taken otherwise his suit will stand dismissed. This fact is corroborated by the testimony of two other persons Chet Ram, Cashier, A. W. 2 and Amar Nath Naib Nazir, A. W. 3. It is also proved that he did show to these persons a bundle in which there was money in currency notes. Sham Singh has come into the witness-box and stated that he had Rs. 3,600/- with him although he did not get the money counted in the presence of these persons but the evidence does show that he told these persons that he had Rs. 3,600/- and he could not go back to his village lest he be looted on the way and that he was anxious to get the money deposited.
3. The learned District Judge has rightly observed that it was the duty of the decree-holder to get the money deposited in time, but he has also said that the decree-holder could have come a day earlier and that it had not been conclusively proved that Sham Singh had in fact Rs. 3,600/- not that he tendered the same either to the Treasury or to the Court.
4. Now, under Order 20 Rule 14 (1) the Court has to specify the day on or before which the purchase-price has to be paid and it is necessary that the decree should direct the payment of money into Court together with costs etc., and if the money is not so paid the suit shall stand dismissed.
5. In a judgment of Shadi Lal J. in -- ' Prabhu v. Nihala', AIR 1916 Lah 77 (A), it was held that if on the last day for depositing the purchase-money under a pre-emption decree the pre-emptor makes an application for permission to deposit the money and tenders it in Court and because of the mistake of the Court or its officers deposit is not made. This tender of the purchase-money within the time specified must be deemed to be sufficient compliance with the terms of the decree and reliance is there placed on -- 'Nathu v. Imamdin', 31 Pun Re 1880 (B) and -- 'Ahmad Din v. Rihan', 69 Pun Re 1881(C)
6. Mr. Dwarka Nath Aggarwal relied on a judgment given by me in -- 'Sheo Ram v. Jhabar', AIR 1951 Punj 309 (D), where I defined 'tender' to be an offer of money actually produced to the creditor by producing and showing the amount to the creditor or to the person to whom the money is to be paid. But in that case I held that the application did not show that any such tender was made nor was there proof to that effect. All that was proved was that on the day, i.e., three days before the last date, the judgment-creditor had the money with him, and he made the application for depositing the money and I held that that was not a sufficient tender.
7. In the present case the facts are quite different. The decree-holder came to Court with the money which is proved by his own statement and by the manner he went about to different officials asking them to accept the deposit. He came to Court in time, made an application, but because the Presiding Judge was, not there it was not signed by that gentleman and objection was taken at 12 O'clock that the application did not bear the signatures of the Presiding Officer and it was because of the Tahsildar, who also was not present in Court and who had to sign the application that the delay was caused. The whole tiling was due not to any fault of the appellant but due to the Presiding Officer not being there.
8. In the circumstances of this case therefore I am of the opinion that the rule laid down by Shadi Lal J., in 'AIR 1916 Lah 77 (A)', is applicable, and I would allow this appeal, set aside the order of the appellate Court and restore that of the executing Court. Both parties will bear their own costs in this Court and in the Courts below.