Ku. Saloni and Others vs Mohammad Hanif and Others

A.M. Sapre, J.—This is a revision filed u/s 115 of CPC by the judgment-debtor against an order dated 11-10-2001 passed by Civil Judge Class II, Khetia, in Execution Case No. 32-A/88.

The short question that arises for consideration in this revisibn is whether learned Executing Judge was justified in holding that payment of Rs. 5612/- made by the judgment debtor by depositing it in Court amounts to compliance of the term in the decree within the meaning of Order 21 Rule 1 of CPC?

On 28-11-2000 a compromise decree was passed by the Appellate Court at the instance of both parties to this Revision who were plaintiff and defendant in a suit out of which the said appeal arose. In terms of the compromise decree the judgment debtor (''petitioner'' herein) was to pay a rent of 187 months (26-4-85 to 28-11-2000) to the respondent (decree holder) within three months, i.e., on or before 28-2-2001 failing which the respondent would have become entitled to obtain possession of the suit property. It is not in dispute that judgment debtor (petitioner) deposited a sum of Rs. 5612/- in Court on 19-2-2001, i.e., well within the period of three months, i.e., much prior to 28-2-2001.

The decree holder filed an execution application claiming possession of suit property contending that since the judgment debtor has failed to pay the money to the decree holder within three months in terms of the compromise decree and hence he has become entitled to execute the decree against the judgment debtor. It is this application which was contested by the judgment debtor saying that he has in fact complied with the terms of the decree and hence decree holder has no right to execute the decree. The learned Executing Judge overruled the objection of the judgment debtor and held that he has committed a breach of the term in the decree and hence decree holder has a right to execute the decree. It is against this order the judgment debtor is in revision.

Heard Shri B.L. Pavecha, learned Senior Advocate, assisted by Shri K. Sajonia and Shri S.V. Abhayankar, learned Counsel for the respondent.

Having heard the learned Counsel for the parties and having perused the record of the case, I am inclined to allow the revision and set aside the impugned order.

In my considered view, the judgment debtor has complied with the term in the decree by depositing a money in Court within three months. In fact, deposit in Court tantamount to compliance in accordance with the requirement of Order 21 Rule 1 (a) of CPC. What was required to be done by the judgment debtor was either to pay money to decree holder or to deposit the money in Court. In either case, it was a case of compliance. Submissions of learned counsel for the respondent was that when the decree said, that amount be paid to decree holder then in such event, the amount should have been paid only to decree holder only and to none else, has no substance. This issue came up for consideration in the case of 1957 MPLJ 721 when on more or less identical facts, the learned Single Judge held that deposit in Court tantamount to compliance of Order 21 Rule 1 and also of the term in the decree. It is a substantial compliance and hence can not be held to be a case of non compliance. So as to entitle the decree holder to complain of non compliance of the term in the decree.

I am, therefore, of the view that learned Executing Judge was not right in holding that deposit of money in Court was not a compliance of terms in the decree. I, therefore, set aside the impugned order.

Learned Counsel for the respondent placing reliance on Rameshwar Das Gupta Vs. State of U.P. and Another, and AIR 1999 SC 1436 contended that the case is covered by these authorities in his favour. I do not find it to be so. These authorities are distinguishable on facts whereas the one referred to and relied on by me of this Court supra, holds the field,

As a result, the revision succeeds and is allowed. Impugned order is set aside.