Natha Singh vs Narinder Singh

P.C. Pandit, J.—The facts giving rise to this appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court are as follows:

The sale of the agricultural land in dispute led to two pre-emption suits -- (1) by Natha Singh, Appellant, and (2) by Narinder Singh, Respondent. On 1-11-1957 a compromisa was effected between the parties and on the same day a decree was passed by the trial Court in terms thereof. According to this decree Narinder Singh, who had a superior right of pre-emption, was given the right of possession of this land on payment of Rs. 2,000/-, the amount of the purchase money, to the vendees by 2-12-1957. In case of default, his suit for possession was liable to be dismissed and Natha Singh, Appellant, was allowed to pay this amount by 2-1-1958. In case he also did not pay this amount within the stipulated period, his suit was also deemed to have been dismissed.

It is common ground that Narinder Singh did not deposit the required amount by 2-12-1957. Natha Singh, however, deposited the same in Court on 2-12-1957. On 6-12-1957, Narinder Singh filed in Court a receipt dated 26-11-57, showing that Rs. 2,000/- had been paid to the vendees. On the same day, the Executing Court recorded a joint statement of the vendees about the payment of this amount and attested the receipt. On 23-12-1957 Natha Singh applied for the execution of his decree on the ground that Narinder Singh had not compiled with the terms of the decree and he (Natha Singh) was, consequently, entitled to the possession of the land In dispute, Narinder Singh, however, opposed this prayer, with the result that the following Issue was framed:

Whether Narinder Singh, decree-holder No. 1, has complied with the terms of the decree so far as it relates-to him? If not, to what effect?

The Executing Court found the issue against Narinder Singh on the ground that no doubt the payment in the present case might be deemed to have been made on 26-11-1957, but, according to Abdul Fateh v. Fateh Ali, 137 Pun LR 1916 : AIR 1916 Lah 249, this-payment was not a proper compliance with the terms of the decree, because Narinder Singh had not filed the receipt and got it certified by the Court on or before 2-12-1957.

The lower Appellate Court also came to the conclusion that there had been noncompliance with the terms of the decree by Narinder Singh on two grounds (1) that if it was true that he had made the payment to the vendees on 26-11-1957, there was apparently no hitch-in his filing the receipt on 2-12-1957 or even earlier to show that the money had been paid by the due date and (2) that the payment appeared to have been certified by one of the vendees only and there was nothing on the record to show that he was authorised to receive or attest'' the payment on behalf of the vendees.

The learned Single Judge, however, reversed these decisions on the ground that in view of the statement of the vendees and the certification of the receipt by the Court, it must be held that payment by Narinder Singh had been made on 26-11-1957 and, thus, the terms of the decree were complied with. It was also remarked that the decision in Abdul Fateh''s case 137 Pun LR 1916 : AIR 1916 Lah 249, even if it be held to be correct was distinguishable from the facts of the present case.

The first question raised by the learned Counsel for the Appellant was that the finding given by that learned Single Judge that Narinder Singh had paid the pre-emption money on 26-11-1957 was incorrect. According to the learned Counsel, both the Executing Courts and the lower Appellate Court had found that the amount had not baton paid by Narinder Singh on this date. The learned Single Judge, argued the counsel, was in error in relying on the receipt produced by Narinder Singh, because the Appellant was no party to the same.

After hearing the counsel for the parties, am of the opinion that there is no merit in this contention. It is not quite correct to say that the Executing Court had held that Narinder Singh had not made the payment on 26-11-1957. On the other hand, it said that the payment in the present case should be deemed to have been made on 26-11-1957, but It went on to remark that even if it be held that the payment was made, the receipt should have been filed by Narinder Singh on 2-12-1957 or earlier to give an inkling to the Court that the money-had been so paid. The lower Appellate Court, It Is true, had doubted the payment to the vendees on 26-11-1957, but it had given no definite finding that this payment had not been made on this date. In view of the fact that no positive finding was given by any of the lower Courts-on the point, whether Narinder Singh had made the payment on 26-11-1957 (that Is before the due date) or not, In my opinion the learned Single Judge had to give a firm finding on this question.

Relying on the joint statement of the vendees made in Court on 6-12-1957 (though mentioned as 26-11-1957 in this judgment of the learned Single Judge) and the receipt produced by Narinder Singh, the learned Single-Judge came to the conclusion that the payment had been made by Narinder Singh to the vendees on 26-11-1957. The Appellant in the very nature of things could not be a party to this receipt. A definite issue was struck in the case as to whether Narinder Singh had complied with the terms of the decree or not. The Appellant could if he so liked, adduce evidence to prove that no payment had been made by Narinder Singh on 26-11-1957 and the receipt produced by the vendees did not represent the true state of affairs. He could have made a request to the Court to call the vendees and Narinder Singh as witnesses in the case and then cross-examined them. He did not do anything in this connection. Under these circumstances, it is not possible to disturb the finding of fact given by the learned Single Judge on this point.

Learned Counsel for the Appellant then argued that even if it be assumed that the payment was made by Narinder Singh to the vendees before the duo date, that is, 26-114957, he had not complied with the decree, because it was necessary for him to deposit the money in Court as required by the provisions of Order 20 Rule 14 of the Code of Civil Procedure. Even though it was not specifically mentioned in the decree that this amount should be deposited In Court, this direction should be deemed to have been incorporated in the same. For this, he placed his reliance on a Supreme Court ruling reported in Naguba Appa Vs. Namdev,

In my opinion, this authority has no Application to the facts of the present case. In the first place, the case with which their Lordships of the Supreme Court were dealing was not based on a compromise decree. Secondly, in that authority the Plaintiff had been ordered to deposit the sale price within two months from the date of the decree, which clearly means that the deposit was to be made in Court. In the present case, as already mentioned above, the parties had effected a compromise and the decree was based on the same. It was stated in the decree that Narinder Singh had to pay this amount to the vendees by 2-12-1957. It has been found that the said payment was made by Narinder Singh to the vendees on 26-11-1957, that is, before 2-12-1957, in view of the terms of the decree and the finding given by the learned Single Judge, it is impossible to hold that Narinder Singh had not complied with the terms of the decree.

Lastly, learned Counsel argued that even if the payment by Narinder Singh was made to the vendees outside the Court on 26-11-1957, he should have made an Application and got this payment certified by the Court before 2-12-1957. For this submission, ho relied on the decision in Abdul Fateh''s case, 137 Pun LR 1916 : AIR 2916 Lah 249, and the case of Sukhpal Singh Vs. Haji Abdur Rahman and Others, In any case, argued the learned Counsel, Narinder Singh should have made an Application to the Court before 2-12-1957 to the effect that; he had made the payment to the vendees. For this, reference was made to the decision in Surajmal Vs. Bheroolal and Others, , which was followed by Haitians Singh J. in Bholu Ram v. Kanhya AIR 1958 P&H 133.

None of the cases relied on by the Appellant has any Application to the facts of the present case. There was no compromise decree in any of these cases. Secondly, the direction in the decrees of all these cases was that the amount should be deposited in Court in the present case, as already mentioned above, the decree was based on a compromise and it clearly stated that the payment by Narinder Singh had to be made to the vendees by 2-12-1957. The moment it is found, as has been found in this case, that this payment was made to the vendees before this date, there has, in my opinion, been a proper compliance with the decree.

In view of what I have said above, this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs in this appeal as well.

S.S. Dulat, J.

I agree.