Sivasubramania Ambalam and Others vs Rajamanicka vasagam

Ramaswami, J.—This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Sivaganga in A. S. No.

61 of 1951. The facts are:-In A. S. No. 61 of 1951 on 15th April 1953 the Advocate for the appellant made the following endorsement:

On payment of Rs. 25 (Rs. Twenty five only) on or before 30th April 1953 to the respondent, this appeal (mistake for petition) will be remanded

to the lower Court for disposal according to law, failing which the appeal will stand dismissed.

The respondent''s Advocate also has signed this endorsement. The amount was not paid as per the endorsement and was deposited in the treasury

on 12th June 1953. The Court of the Subordinate Judge, Sivaganga, stood closed for summer recess on 30th April 1953 and stood reopened by

12th June 1953. The contention before the learned Subordinate Judge on behalf of the respondent was that the order of the learned Subordinate

Judge dated 15th April 1953 had worked itself out and the appeal should stand dismissed. The contention of the appellant on the other hand was

that he was entitled to take advantage of the summer recess and deposit the amount on the reopening day and that therefore the O. P., should be

remanded to the lower Court. The learned Subordinate Judge came to the conclusion that his order dated 15th April 1953 had worked itself out

and that the appellant was not entitled to take advantage of the intervention of summer recess and that the appeal should stand dismissed. Hence

this appeal.

On a consideration of all the facts of this case, I have come to the conclusion that the opinion of the learned Subordinate Judge, that the

appellant cannot take advantage of the summer recess and then deposit the amount on the reopening day and plead that the order has not worked

itself out, is a perfectly correct conclusion. It is quite true that when a party is directed to pay an amount to the respondent without specifying

further that it should be paid into the hands of the respondent''s Advocate or to the respondent by a specified time, the party can certainly deposit

the amount in Court. The normal procedure for payment of moneys by one party to the other is only by depositing it into Court. Otherwise there

will be several complications like the opposite party making himself unavailable for payment by the specified time in order to defeat the party who

has to pay and get a concession, or the reapon. dent''s Advocate being unavailable, on account of business elsewhere, for the payment to be made

to him by the specified date. It may also happen that if the payment is made to a party, he may falsely deny it and give false and frivolous reasons

admitting about the passing of the receipt on trust but that the amount had not been received. By agreement of parties, however, an order of Court

can be made that the amount should be paid into the hands of the respondent or his Advocate by a specified time and at a specified place. Such

particulars are not found in the instant case and it was certainly open to the appellant to deposit the amount into Court, But the appellant herein had

ample time to deposit the amount in Court before 30th April 1953, which be would have known was the closing date of the Court because the

order itself has been made on 15th April 1953 and the Court stood closed on 30th April 1953 and by which time the closing date of the Court

would have been notified and everybody would have been aware of it. In fact the date 30th April 1953 has been fixed so that the payment could

be made before the commencement of the summer recess and the disposal of the appeal itself would be by the end of that month. Therefore the

three decisions relied upon by the appellant''s Advocate in the lower Court, Chinna Nadar Vs. A.B.V. Arumugham Chetti, and AIR 1935 369

(Lahore) . have no application. In Saukara Unni v. Raman (1), there was a compromise decree and lesser amount was payable on a fixed date and

in default the entire sum was made due. The Court was closed on the due date and the amount was deposited in Court on the reopening date. It

was held that under the general principles, that where a party is prevented from doing a thing, not by the default of his but by the Court itself, he is

entitled to do it at the first subsequent opportunity. It was also held therein that under O. 21, R. 1, Civil Procedure Code, relating to the satisfaction

of decrees, the defendant had the option to pay either to the decree-holder directly or into Court. In Chinna Nadar Vs. A.B.V. Arumugham

Chetti, , it was found that the parties in that case overlooked the fact that the Court would be closed for the vacation on the due date fixed for

payment. In Amalok Ram v. Rodamal (3), it was held that under O. 21, R. 1, Civil Procedure Code, a judgment debtor is entitled to pay the

amount directly or into Court and that it is entitled to choose between the two in the absence of a special direction. But these rulings do not touch

the point in this case, viz., that when the parties made the endorsement they knew full well that the Court would be closed on 30th April, 1953 and

that the payment was to be made before that date. The learned Advocate for the respondent pointed out in the lower Court that when the

appellant''s Advocate first wanted time till 30th May, 1953 and that he, respondent''s Advocate, objected to it because the Court would stand

closed on 30th April, 1953 itself, the date of payment was amended to 30th April, 1953 and that the clear understanding was that the amount was

to be paid directly to the respondent. The learned Subordinate Judge agreed with this contention by pointing out that from the endorsement it is

seen that there is a correction and also the subsequent addition of the words "" to the respondent "" and that this would indicate that time was of the

essence and that the parties knew that the Court would be closed on 30th April, 1953. Therefore it is obvious that though the appellant could have

deposited the amount into Court instead of paying it direct to the respondent or his Advocate and that though in view of what the learned

Subordinate Judge has found that this point is not free from doubt, this does not mean that the party can deliberately, knowing fully well that the

depositing was to be made on a particular date and on that date the Court would stand closed for the summer recess and in regard to which time

was of the essence, nullify that agreement to pay before the summer recess, which constituted the consideration for the other party to agree to the

remand of the Original Petition and turn round and seek the general provisions for saving limitation. Therefore the conclusion of the learned

Subordinate Judge is correct. But this does not mean that when a party under a misconception which turned out to be totally wrong, did a

particular thing, the appeal itself should be made to stand dismissed. In such a case the procedure which is followed in the High Court is for the

party to seek a review of the order and have the time for payment extended. I therefore set aside the dismissal of the appeal by the learned

Subordinate Judge and give liberty to the appellant herein to apply for a review of the order dated 15th April, 1953 and for grant of further

extension of time for payment, and then the learned Subordinate Judge will deal with that application for review on merits. The costs of this appeal

wilt abide by and be provided for in the ultimate disposal of the appeal in the lower appellate Court.