Alfred Henry Lionel Leach, C.J.
1. This matter was decided against the appellant in the Courts below on a technicality. When the facts are fully understood, we are of the opinion that there is no reason why the technicality should prevail and that on the merits the decision should be in favour of the appellant.
2. The first respondent obtained a money-decree against the appellant in the Court of Small Causes, Madras and in execution proceedings in the City Civil Court attached a house belonging to the appellant. The first respondent holds a mortgage over this property as security for a loan of Rs. 1,000 granted by him to the appellant. The first respondent asked that the property be sold subject to his mortgage. It was sold on this condition on the 27th April, 1944 and was bought by the second respondent, who is the paternal uncle of the first respondent. The amount payable under the money decree was Rs. 217-12-6.
3. The City Civil Court closed for the summer vacation on the 1st May, 1944, that is, three days after the sale. It reopened on the 1st July, 1944, which was a Saturday and a bank holiday. We have ascertained that it is the practice of the City Civil Court Judge to sit for a short time on the reopening day, but he does not post any cases for hearing. On Saturdays the office of the Court is closed at 2 p.m.
4. The appellant who is the judgment-debtor, had time until the Ist July, 1944, in which to make the deposit required by Order 21, Rule 89 of the Code of Civil Procedure when applying under that rule for an order setting aside the sale. The appellant decided to take advantage of the rule and on the Ist July, 1944, sought to deposit the decretal amount, plus the 5 per cent, solatium. The total amount came to Rs. 236-7-6.
5. Rule 157 of the Civil Rules of Practice lays down the procedure which a judgment-debtor shall follow in such circumstances. The rule reads as follows:
A person desirous of paying money into Court, hereinafter called the payer, shall bring into Court a lodgment schedule in Form No. 57, headed with the cause title of the suit, appeal, or matter and the particular account therein, if any, to which the money is to be credited and stating the decree or order, if any, in pursuance of which the payment is made, or the reason for the payment and the several sums and the total amount to be paid into Court. An order for lodgment and counterfoil receipt, in Form No. 58, stating the date of issue and bearing a serial number shall then be filled in, except as to the date of payment and the signature of the receiving officer, by the officer of the Court and issued to the payer.
At noon on the Ist July, the appellant consulted an advocate and as the result of advice received from him he filed an application under Order 21, Rule 89 and the lodgment schedule, but the chalan was not issued until Monday, the 3rd July, when the bank reopened. On that day he collected the chalan and paid the money into the bank. It is said that he was then out of time because he should have followed the permissive course prescribed by Rule 159 and did not. That rule is in these terms:
If the bank or the treasury is closed, the money may, with the leave of the Judge, be paid to the officer of the Court; in such case the lodgment schedule shall be endorsed with a receipt to be signed by the Judge and the amount shall, on the next day on which the bank or treasury is open, be sent, together with an order and counterfoil receipt, by the officer of the Court to the bank or treasury officer, who shall return the said receipt to the Court.
The City Civil Judge held that it was obligatory on the part of the appellant to have acted in accordance with this rule and consequently he dismissed the application for an order setting the sale. In the course of his judgment the learned City Civil Judge said that there was considerable force in the contention raised by the respondents that on the Ist July, the appellant had not the Rs. 236-7-6 available. This observation is not supported by any evidence. As the money was paid as soon as the bank reopened on the Monday, the only reasonable conclusion was that the appellant had the money on the Saturday. It is very unlikely that he would have filed the application and brought into Court the lodgment schedule if he had not the necessary funds available. On the other hand, the appellant has stated in evidence that he had Rs. 250 in his possession. That evidence should certainly have been accepted. The City Civil Court Judge did not, however, base his decision on the respondent's contention in this connection. He dismissed the appellant's application solely on the ground that Rule 159 had not been complied with. He expressed the opinion that the appellant could have paid the money to an officer of the Court entitled to receive it. The money could only have been paid into Court with the leave of the Judge himself.
6. The appellant appealed to this Court against the order dismissing his application. The appeal was heard by Shahab-ud-din, J., who agreed with the City Civil Court Judge that it was incumbent upon the appellant in the circumstances to have applied under Rule 159 for leave to pay the money into Court on the Ist July as it could not be paid into the bank on that day.
7. We are certainly not satisfied that the appellant was in a position to make an application under Rule 159. The indications are that he was not. He has sworn to an affidavit to the effect that the Judge rose at 1 p.m. and we accept the statement, which is in accordance with the probabilities. In his order dismissing the appellant's application the Judge has not said that he was there to deal with an application under Rule 159 when the appellant brought to the office the application under Order 21, Rule 89 and the lodgment schedule. If the Judge was not then present, it was impossible for the appellant to take advantage of Rule 159. Mr. D. Ramaswami Aiyangar on behalf of the first respondent has very properly conceded that, if the Judge was not there to grant leave to pay the money into Court, the appellant was entitled to ignore Rule 159 and under such circumstances the payment of the money into the bank on the Monday would be within time.
8. We consider that the appellant did all that could reasonably be expected of him and that Rule 159 is not in the circumstances of the case a bar to the relief asked for by him.
9. We allow the appeal with costs here and in the Courts below.