Des Raj vs Des Raj and another

P.C. Pandit, J.—14th of August, 1963, on the basis of a compromise, a decree for possession by pre-emption was passed in favour of Des Raj son of Baga Ram against Des Raj son of Panju Ram and Goman Ram son of Raju Ram. It was provided in the decree that l/5th of the safe price had already been deposited by the deeree-holder and the balance amounting to Rs. 6,820/- would be deposited on or before 15th january, 1964, and in case that was not done, the pre-emption suit would be deemed to have been dismissed with costs.

The only question for decision in this execution second appeal is whether the decree-holder had not complied with this decree and his suit had been rightly dismissed by both the courts below.

It is common ground that the said amount was actually deposited in the court on 16th of January, 1964 and not on 15th January, 1964. The decree-holder, however, made an application to the executing court on 15th January, 1964 for depositing this amount. The court called for a report of the office on the said application for the next day i.e., 16th January, 1964. On 16th January, 1964, the court ordered that the amount be deposited on the responsibility of the decree-holder and this amount was then deposited on that very day. The judgment debtors took objection to this deposit and stated that as the decree-holder had failed to comply with the pre-emption decree, inasmuch as he did not deposit the pre-emption money on or before 15th January, 1964, the suit should be dismissed. The objection prevailed with both the courts below and as a result the suit was dismissed. The present second appeal has been filed by the decree-holder.

Learned Counsel for the appellant argued that the courts below were in error is holding that the decree-holder had failed to comply with the terms of the decree. It had been proved on the record that the appellant went to the court on 15, January, 1964 to make the payment, but as the judgment debtors intentionally slipped away, he made an application for depositing the said amount in court. The court called for the office report for the next day and as orderd by it the amount was duly deposited on 16 January, 1964. The appellant was prevented from making the deposit on 15, January, 1964 merely on account of the complicated procedure prescribed for the purpose and not due to any fault on his part and he should not be made to suffer on that account.

After hearing the counsel for the appellant, I am of the view that there is no merit in this appeal. It had been found as a fact by the executing court that the appellant did not deposit the pre-emption money on 15th. January, 1964, because of his own negligence. He came to the court on the last date and that also at the end of the working hours only 15 minutes before the rising of the court. In such a short time the needful could not be done. The lower appellate court had further found that the decree-holder had not taken the money with him and had not produced it in court on 15th. January, 1964. The mere making of an application for the deposit of the money on the last day just before the rising of the court could not be called the compliance of the decree. If the decree-holder had taken the money with him and actually produced it before the court at the proper time and then if it could not be deposited in the treasury due to the fault of some court official, it could have been said that the decree holder had done all that was possible to comply with the decree. In the instant case, on the findings of fact given by the courts below, it could not be said that the decree-holder had fulfilled the terms of the decree, namely, that the pre-emption money had to be deposited on or before 15th. January, 1964, failing which the suit would deemed to have been dismissed with costs. A similar view was taken by Tek Chand J. In Kali Charan v. Ravi Datt (1957) 59 P.L.R 204 where it was held:

Mere presenting of an application requesting the court to get the pre-emption money deposited does not amount to compliance of the provisions of rule 14 of Order 20 of the Code of Civil Procedure. The word ''tender'' imports not merely the readiness and the ability to pay or perform, at the time and place mentioned in the contract, but also the actual production of the thing to be paid or delivered over. A mere offer to pay does not constitute a valid tender, the law requires that the tenderer has the money present and ready and (he is able to) produce and actually offer to the other party. Tender implies the physical act of offering the money or thing to be tendered. The law insists upon an actual, present, physical offer, it is not satisfied by a mere spoken offer to pay, which although indicative of present possession of the money and intention to produce it is unaccompanied by any visible manifestation of intention to make the offer good.

The result is that this appeal fails and is dismissed. In the circumstances of the case, however, I will leave the parties to bear their own costs throughout.