Ram Kinkar Singh and Another vs Smt. Kamal Basini Devi

Wort, J.—This appeal arises out of an objection petition by the judgment debtors against the execution of a decree for Rs. 12,637-14.0. A compromise was entered into under which the decree was to be paid in a number of instalments. We are concerned in this case with the first two only; one was Rs. 200 by the month of Chaitra 1341 and the other was Rs. 400 by the month of Chaitra (the same month) 1342, corresponding respectively to 13th April 1935 and 13th April 1936. By the terms of the compromise if two successive instalments were in default, all the remaining instalments would be treated as in default and the decree, holder would be entitled to execute the whole of his decree. There is no dispute in this case that the first instalment of Rs. 200 was not paid and the controversy in the case is as regards the second instalment of Rs. 400. The case of the judgment-debtors was that they tendered the second instalment of Rs. 400 on 29th Ghaitra 1342 but that it was refused. Then it was paid into Court on 14th April 1936 by a petition and the order made by the Judge on that date was that the deposit was allowed and that the decree-holder was to be informed so that the money could be withdrawn. The learned Judge in the Court below has disbelieved the judgment-debtors'' story as to the tender. He has come to that conclusion for a variety of reasons amongst which was that if the judgment-debtors had been in earnest about the matter, they could have used the post office for sending''1 the money to the decree-holder. But there are other matters upon which the Judge relies for the conclusion to which I have referred.

One of the witnesses called to prove the tender was Muga Ram Pandit, an Ammukhtar of the judgment-debtors who states in his evidence that he offered Rs. 400 to Kumar Gyandra Narayan Singh, the husband of Kamal Basini Devi (the decree-holder), but he refused to take the money. A question which might have arisen but which has not been discussed is whether, if the evidence was accepted, the tender to the husband was a tender to the wife, the decree-holder; but that point, as I have said, has not been discussed. But during his cross-examination that witness states that no one was present when the money was tendered.

On the other hand the second witness called by the judgment, debtors, Kashipada Lal, was put into the witness-box for the purpose of stating that he was present at the time of the tender. There is of course an obvious contradiction in his evidence and that is one of the matters which has influenced the learned Judge in coming to the conclusion at which he has arrived. It is difficult for this Court to hold that the Judge was wrong in refusing to accept this evidence--evidence of the witness who appeared before the Judge and whose demeanour was apparent to him--having regard to the matters to which I have referred and also with regard to an equally important point to which I shall now refer.

It is quite clear, if the case of the judgment-debtors is to be believed, that the payment into Court was a payment which was necessitated, in the judgment-debtors'' opinion, by reason of the refusal of the decree-holder to accept the money. That being so, we should suppose? that the first thing they would show in their petition ,to pay the money into Court would be that the decree-holder had refused to accept the tender. But no such allegation is present in the petition. I find it very difficult in those circumstances to believe that any tender was made. It is unnecessary to speculate why no such tender was made probably because it was thought, contrary to the true position in law that the decree-holder would be either entitled to or would in fact, refuse any tender excepting the tender of both the first and the second instalments. I do not propose to say any more about the matter excepting to hold that the judgment-debtors have not made out their case of tender.

Now the question arises whether they were entitled in the circumstances to take advantage of the fact that between the time of the tender, in fact from the very date of the tender up to and including 13th April 1936 the Court was closed, a fact which would entitle the judgment debtors u/s 10, General Clauses Act (Act 10 of 1897) to pay the money into Court on 14th April. That is the argument addressed to us; and, in my judgment, the whole case depends upon the proper construction to be placed upon that Section which provides as follows:

Where, by any Act of the Governor-General in Council of Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.

The sub-clauses to that Section are irrelevant for the purposes of this discussion. It is contended that, as the agreement of the parties was merged in the decree and therefore in a sense the instalments were by the order of the Court, it was an act or proceeding which was directed or allowed to be done within the meaning of Section 10 and it is clear that there are a number of decisions of various High Courts in India which, without considering in detail the actual words of the Section, have applied Section 10 to circumstances not dissimilar to the present. In my opinion however, it'' is quite impossible to apply that Section to this case. The Section, as it states, applies to a case in which an act is allowed or ordered to be done by an Act of the Legislature. The short answer to this part of the case seems to me to be that this is an act which is not directed or allowed to be done by an Act of the Legislature but ordered or allowed to be done by the decree. For the purpose of this statement I am disregarding entirely the fact that this was a compromise decree.

There are two other provisions similar to the one to which I have referred: one is of course Section 4, Limitation Act which enlarges the time in circumstances such as provided for by Section 10, General Clauses Act and the other is Section 148, Civil P.C. which enables the Court to extend the time with regard to any period which is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. It was not contended (and indeed it must be obviously clear) that Section 4, Limitation Act, applied, and equally clearly Section 148, Civil P.C. is not applicable to this case. It is therefore upon the construction of Section 10, General Clauses Act, that the case entirely depends. In Kunj Behari Singh and Others Vs. Bindeshri Prasad Singh and Others the Allahabad High Court held that the time was not to be extended u/s 10, and Sulaiman and Kendall, JJ. delivering the judgment of the Court made this statement: But assuming that the defendants had the power to make the payment direct to the mortgagees or to deposit the amount in Court, they cannot take advantage of the circumstance that the Civil Court was closed on 15th June 1921. If the only course open to them had been to deposit it in Court and the court was closed on the last date on which they could have made the deposit, then the ruling in the Full Bench case would have been applicable.

I am of opinion that that states in a convenient form the answer of Sir Sultan Ahmed on behalf of the respondent in this appeal. A number of other cases to which I shall briefly refer have been relied upon by the appellants. The first is the case in Surendra Narayan Mustafi v. Souravini Dasi 10 CWN 535. There the compromise agreement was that the payment should be made to the decree-holder''s pleader or to Court and the learned Judge there deciding the case certainly applied Section 10.

But if I may be allowed to say so with respect, the value of that decision is impaired by the reference the learned Judges themselves make to the Section. In paraphrasing the provisions of Section 10 the learned Judges state:

Section 10 enacts that if any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day o r within a prescribed period, then if the Court or office be dosed on that day or the last day of the preserved period, the act or proceeding shall be considered as done or taken in time, if it is done or taken on the next day afterwards on which the court or office is open.

Again, if I may say so with respect, that is exactly what the Section does not say. If that was Section 10, then this case from the point of view of the respondent would be unarguable. What the Section says is if "by. an Act of Legislature" or to use the exact words of the statute if.

by any act of the Governor-General in Council or Regulation...any act or proceeding is directed or allowed to be done or taken...within a prescribed period.

then time is extended in the way provided for by the Section. In a decision of the Madras High Court reported in an unofficial report Chinna Nadar v. Arumugham Chetti AIR 1927 Mad. 1196 the learned Judges deciding the matter said:

Where a judgment-debtor agrees to pay the decretal amount on a certain date but the Court is closed on that date, a payment made on the next reopening day is a good payment A I B 1927 Mad 1196, head-note).

and added relying on a decision to which I am about to refer that there is no difference between a compromise decree and any other decree.

The decision to which I refer and upon which the learned Judges of the Madras High Court relied is in Sankaran Unni and Another Vs. Kummakattil Ezhuvan Kandan''s son Raman, . But again although it may be an authority for the application of what may be described as the equitable principle, it is certainly not an authority for the application of Section 10. Krishnan, J. in delivering the judgment of the Court in that case, stated that Section 10 could hardly be applied to the case where a certain thing is directed to be done by a decree of the Court, and then proceeded to retyping an earlier decision of 1899 in Sambasiva Chari v. Ramasami Reddi (1899) 22 Mad. 179. The farther one goes back into these decisions the less do they support the argument advanced and the judgment in the later case.

When we come to the case reported in Sambasiva Chari v. Ramasami Reddi (1899) 22 Mad. 179 we find that it was a case in which by statute a party had to do an act (bring a suit) within a certain time. Shortly stated, a suit was to be filed within 30 days as provided by the statute, and it was in those circumstances that the principle analogous to that contained in Section 10 was applied, Section 10 not applying actually to the facts of the case as it was a suit of the year 1895 two years before the General Clauses Act was passed. The decision in the case was that where parties were prevented from doing a thing in Court on a particular day not by the act of their own but by the act of the Court, they were entitled to do it at the first subsequent opportunity.

I have only one observation to make with regard to the decision of Krishnan, J. in Sankaran Unni v. Raman AIR 1925 Mad. 743. and that is the statement of Lord Tomlin in Maine and New Brunswick Electrical Power Co. Ltd. v. Hart AIR 1927 P.C. 185. The learned Law Lord there was dealing with the application of equitable principles. I refer to the case because it was dealing with a statute of New Brunswick which was in the precise terms of an Indian Statute and to that extent the observation is relevant. Lord Tomlin states:

It remains to consider whether any rule of equity entitles the plaintiff to interest. In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracted the equitable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance.

He then goes on to point out that there was nothing which would entitle them to enlarge the operation of the Act by the application of equitable principles and that, if I may say so with respect, seems to be the answer to the decision of Krishnan, J. to which I have already referred.

The appellants also rely upon the decision in Wana Ravji v. Natu Murha (1911) 35 Bom. 35 now come back to the point. There is a decision of a Full Bench of this Court which seems to me to be directly in point as regards one aspect of the case--the decision in Bhagwat Narain Singh v. Srinivas AIR 1937 Pat. 113. The question there was whether a tender or payment four days after the date upon which the instalment was due was a payment which could be accepted. A number of arguments appear to have been advanced, amongst which was that the judgment-debtor was entitled to relief against forfeiture. But, as my learned brother Khwaja Mohamad Noor stated when delivering the judgment of the Court, the real question to be determined was whether time was the essence of the contract. He came to the conclusion that it was. With the exception of one matter the case was precisely the same as this that it depends on the terms of a contract. Sir Sultan Ahmed in his argument on behalf of the respondent contends that there is one clause which concludes the matter with regard to this point; that is Clause 3 of the compromise decree which states "To that the defendants will not be competent to raise any objection. Even if they do, it will be rejected." The matter referred to appears to have been that if two successive instalments or any part thereof are "defaulted," the defendants will remain bound to pay the plaintiff the amount in default with interest thereon. It is contended (to repeat myself) that that concludes the matter as to the question of whether time is the essence of the contract. I doubt whether that clause adds very much to the matter, but it does seem quite clear from the judgment of the Full Bench to which I have just referred that time is the essence of a contract of this kind. The learned Judge there pointed out, the moment 10th November had passed, the date upon which the payment was to be made, the rights of the decree-holder or purchaser accrued. The learned Judge expressed himself in these words:

The effect of the contract was that on the expiry of 10th November, the last date fixed for the payment of the decretal amount, the sale automatically became confirmed. Even if it be conceded, that on account of the Court being closed on that and on two subsequent days the payment could have been made on 18th November, even then the sale stood confirmed on the expiry of that date, no order of the Court being necessary.

In my judgment time was the essence of the contract in this case and the moment the 13th April had passed the rights of the decree-holder accrued. It was pointed out in the course of the argument by Sir Sultan Ahmed, an argument which I accept, that it was not a case in which the judgment-debtors had no alternative. They were entitled to tender the sum and as an alternative under Order 21, Rule 1 they were entitled to perform their contract by payment into Court. I shall make one further observation. It has been pointed out by a number of decisions of this Court relying upon English decisions that a compromise decree is nothing more than a contract. Reliance in cases of this kind is always placed upon one of the leading cases, namely Huddersfield Banking Co. Ltd. v. Henry Listor & Sons Ltd. (1895) 2 Ch. 273. The decision there was that; a compromise decree could only be sets aside on the same grounds upon which any other contract could be set aside. Wentworth v. Bullen (1829) 9 B & C 840 at p. 848 is also an authority on this question in which decision Parke, J. made this observation:

The contract of the parties is not the lees a contract and subject to the incidents of a contract, because there is superadded the command of the Judge.

In my view although in this case there has been superadded the command of the Judge in the sense that a decree has been passed, yet the decree is nonetheless an agreement between the parties and time is of the essence of that contract.

In those circumstances, it seems to me that the decision of the learned Judge is correct in coming to the conclusion that when 13th April passed, the rights of the decree, holder to execute this decree accrued. If that is the correct view of this decree, that is to say that it is a contract between the parties, it seems to me to be perfectly obvious that Section 10, General Clauses Act cannot apply to the circumstances of this case. For those reasons I hold that the appeal fails and it must be dismissed with costs.

Yarma, J.

I agree.