C.F Angadi v. Y.S Hirannayya .

Hegde, J.:— These are connected appeals. They raise a common question for decision, namely, whether the deposit made by the respondent on 2-1-1960, in pursuance of the compromise entered into between the parties on 24-6-1959 and made a decree of Court is a valid deposit.

Ex. B.A No. 33/61 arises from Execution Case No. 25 of 1960 on the file of the District Judge Bangalore, which was levied by the plaintiff in O.S No. 85 of 1949-1950 on the file of the same Court, tendering the amount due under the compromise decree. Ex. R.A No. 34/61 arises from Execution Case No. 45 of 1960 on the file of the same Court. That execution was levied by the defendant in Original Suit No. 85 of 1949-1950 asking the Court to pass an order in terms of the aforementioned compromise decree as the plaintiff who is the respondent in these appeals has failed to comply with the terms of the compromise decree. The Court below allowed Execution Case No. 25/60 and dismissed Execution Case No. 45/60. It came to the conclusion that the deposit made on 2-1-60 is a valid deposit; the same is in accordance with the terms of the compromise decree and hence the defendant should execute a deed of conveyance on the lines of Exhibit “EEEEE” in favour of the plaintiff within one month from the date of the Order. Aggrieved by that Order, the defendant has filed the above two appeals.

The material facts of the case lie within a narrow compass. As mentioned earlier, the only question that arises for decision is whether the deposit made by the plaintiff-respondent on 2-1-1960 is a valid deposit.

Aggrieved by the decree of the trial Court in O.S No. 85/49-50, in the Court of the District Judge, Bangalore, the defendant-appellant came up to this Court in Appeal in R.A No. 73 of 1952-1953. During the pendency of that appeal, the parties thereto, compromised their disputes and filed a compromise petition on 24-6-1959. That petition reads:

COMPROMISE PETITION

“Under Order 23, Rule 3 of the Code of the Civil Procedure, the parties to this appeal agree to the following terms:

1. The Defendant agrees to receive from the plaintiff a lakh of rupees paid as consideration for the sale of the property No. 44, Mahatma Gandhi Road, Bangalore, together with stamp charges of Rs. 3,300 (Rupees Three thousand and three hundred only) with interest at six per cent per annum on the above two sums from 10-3-1947 up to-date together with Rs. 7,000 (Rupees Seven thousand) deducted by the Corporation minus the net rent received, viz., Rs. 22,500 (Rupees Twenty-two thousand and five hundred only) and give up all rights to the said property. The plaintiff will be entitled to the materials lying on premises.

2. The period of time fixed for the payment by the plaintiff to the defendant of this amount stated above is till 1-1-1960.

3. The plaintiff agrees to deposit the amount in Court for payment to the defendant.

4. On failure of the plaintiff to deposit the amount in Court by 1-1-1960 his suit now in appeal will be dismissed with costs throughout.

5. It is agreed by the parties that time is the essence of the contract and no further extension of time would be allowed and the dismissal of the suit with costs would be automatic.

6. On deposit of the amount in Court as aforesaid, the defendant will execute a conveyance of the said premises for a lakh of rupees (Rs. 1,00,000) in plaintiff's favour or his nominees but at the plaintiff's expense and he, the defendant, will hand over such of the documents of title as are in his possession to the plaintiff.

7. True copies of the title deeds authenticated by the defendant will be sent by registered post with acknowledgment due to the plaintiff at his address No. 1-A, Levelle Road, Bangalore-1.

8. If the defendant fails to execute the usual conveyance on the lines of Exhibit as per clause 6 above with a month from the date of notice of the said deposit and the tender of the stamped conveyance for execution, the plaintiff's suit will be decreed with costs throughout.

9. An order embodying the above terms may be passed.

Sd. Mirle N. Lakshminaranappa.

Sd. Wilfred A. D'Souza.

Advocate for Appellant.

Sd. C.F Angadi,

Appellant.

Sd. K.R GopivallabhaSd. Y.S Hirannayya

Iyengar, Advocate24-6-1959

for Respondents.Respondent.

Dated 24th June 1959”

A decree in terms of that compromise was made.

The plaintiff's learned Counsel applied for a receipt order on 22-12-1959; a challan was issued to him on 24-12-1959, the last working day before the closing of Courts for Christmas holidays. 31-12-1959 as well as 1-1-1960 were public holidays. Neither the lower Court nor the banks were open that day. The respondent deposited the amount due under the compromise decree on 2-1-1960 and thereafter, levied Execution Case No. 25 of 1960 seeking to enforce his right under the compromise Decree.

The defendant's contention is that the deposit in question not having been made on or before 1-1-1960 as stipulated in the compromise decree, the plaintiff's suit has to be dismissed with costs as provided therein.

It was contended on behalf of the appellant that at the highest the respondent can only ask for an equitable relief at the hands of Court; but he is not entitled to that relief firstly on the ground that be waited till the last day for making the deposit, though he had more than 6 months time to do so; secondly he applied for receipt order on 22-12-1959 without having the required amount; and lastly that though he had the required amount on 30-12-1959, he failed to deposit the same without adequate grounds. We do not think that there is any substance in any of these contentions.

As observed in Halsbury in Volume 37 (Simonds' Edition) page 96, para 169, “subject to certain exceptions, the general rule is that, when an act may be done or a benefit enjoyed during a certain period, the act may be done or the benefit enjoyed up to the last moment of the last day of that period.” Under the compromise petition, the respondent had a right to deposit the money on 1-1-1960. Therefore, the circumstance that he did not deposit that amount earlier is of no consequence. That circumstance cannot be considered as a dereliction of duty on his part. He was well within his rights to wait till the last day provided under the compromise, for making the deposit. This conclusion of ours is supported by the ratio of the decision of the Supreme Court in Ramlal v. Rewa Coalfields, Ltd. . A.I.R 1962 S.C 361..

The learned Counsel for the appellant highlighted the fact that in the first execution petition filed by the respondent, he omitted to mention the fact that the deposit in question was made on 2-1-1960. On the other hand, he tried to give an impression that it was made within the time prescribed. It is true that the respondent had not mentioned in that petition that the deposit in question was made on 2-1-1960. We do not consider that omission as of any significance.

Sri Mirle Lakshrninaranappa strenuously contended that the compromise entered into on 21-6-1959 is nothing but a contract though it had been made a decree of Court; that contract is governed by the provisions of the Contract Act; under that contract time was of the essence and the deposit not having been made within the time prescribed, the suit filed by the plaintiff stood dismissed with costs.

A compromise made into a decree of the Court is no doubt essentially a contract. In truth it is an agreement between parties. But yet, it is not correct to say that it is a contract pure and simple. On that contract an order of the Court was superimposed. In the compromise decree, with which we are concerned in these cases, the Court had directed the respondent to deposit the amount mentioned in the compromise petition in Court on or before 1-1-1960 for payment to the defendant. The plaintiff was bound by that direction.

From the foregoing discussion, it follows that in view of the decree of Court the respondent was required to deposit the amount in question in Court on or before 1-1-1960. As mentioned earlier, he had a right to deposit the amount on 1-1-1960. That day being a public holiday both the Court as well as the Bank in which the Court had directed him to deposit the money in question were closed. Under these circumstances, we have to see whether the respondent had a right to make that deposit on the next succeeding day, namely, on 2-1-1960.

In para 172 (page 97 of Halsbury's Laws of England, Third Edition, Volume 37), the law on the point with which we are concerned in these cases is summarised thus:

“The fact that the last day of a prescribed period is a Sunday or other non-juridical day does not as a general rule give the person who is called upon to add an extra day; it is no excuse for his omission to do the act on some prior day.

This general rule does not hold good where the effect of it would be to render performance of the act impossible. This would be the case if the whole of the prescribed period consisted of holidays, in which case the act may lawfully be done on the next possible day.

Again, the general rule does not hold good where the last day is a Sunday and the act to be done is one the performance of which on a Sunday is prohibited by the Sunday Observance Act, 1677, or where the act has to be done, not by the party only, but by the Court or by the party in conjunction with the Court. In such cases, the act may, when the last day limited for the performance of it happens to be a day when the Court or its office is closed, be done on the next practicable day.”

The above statement of the law is accepted as correct by the learned Counsel on either side. But, it was contended on behalf of the appellant that the facts of the present cases do not come within the scope of the rules laid down therein, whereas, on behalf of the respondent it was urged that the last day within which the plaintiff had to deposit the money in Court being a public holiday, and the deposit in question could not have been made without the conjunction of the Court or its agent the Bank, he was entitled under law to make the deposit on the next succeeding day. It cannot be denied and it was not denied that the respondent had a right to put the money into Court on 1-1-1960. He could not have done so unless the Court was open on that day. Though he had taken the receipt Order from the Court on 24-12-59, he could not have deposited the money in the Bank on 1-1-1960 in pursuance of the challan issued by the Court because the Bank was not open on that date. Therefore, it is clear that the facts of this case fall within the second except on enunciated by Halsbury. The view expressed by Halsbury receives support from the decision in Morris v. Barrett.

The rule noticed above was applied by High Courts in India to cases falling under Rule 14(1) of Order XX C.P.C as well as those falling under Order XXI, Rule 1 C.P.C The Supreme Court in Naguba Appa v. Namdev . A.I.R 1954 S.C 50., has laid down that if the amount directed to be deposited in a preliminary decree under Order XX, Rule 14(1) is not deposited within the time fixed in the decree, the suit stands dismissed. The Courts were called upon to consider this effect of the failure of a party to deposit the money into Court within the time fixed when he was prevented from doing so on the last day because of the fact that the Court was closed but at the same time he deposits the amount on the very first day the Court reopens. In Fateh Khan v. Cshajju the Lahore High Court laid down that where the parties are prevented from doing a thing on a particular day not by an act of their own but by the Court it self they are entitled to do it at the first subsequent opportunity. No contrary view was brought to our notice. Even in cases falling under Order XXI, Rule 1 and Order XXXIV, Rule 4 C.P.C, the same view was taken by the various High Courts. In Kambi Revanna v. Gangappa, a Bench of the old Mysore High Court held that where parties are prevented from doing a thing in a Court on a particular day not by an act of their own, but by the act of the Court itself, they are entitled to do it at the first subsequent opportunity. A similar view was taken by the Madras High Court in Chatlapalli Suryaprakasha Rao v. Polistti Venkataratnam 3 and by the Nagpur High Court in Premchand Bhikabhai v. Ramdeo Sukdeo Mawadi 4.

In support of his contention that the deposit made by the plaintiff was out of time, Sri Mirle Lakshminaranappa, the learned Counsel for the appellant placed strong reliance on the decision of the Patna High Court in Ram Kinkar Singh v. Smt. Kamal Basini Devi, in that decision the Court laid down that Section 10 of the General Clauses Act applies to cases in which an act is allowed or ordered to be done by the Act of the Legislature and that provision will not be of any assistance where certain payments have to be made under a compromise decree. That position was not disputed before us. But, in that case it was further laid down that when by agreement between the parties, amount was made payable by one party to a compromise decree to another within the specified date, the date of payment being the essence of the compromise, the mere fact the Court was closed on the last day would not give the party liable to pay the amount an extra day for payment. In that case, the party concerned was not required to deposit the amount in Court. It was open to him to make the payment in other ways. That is not the position here. That being so, the rule laid down in that decision is inapplicable to the facts of the present cases. Hence, it is not necessary for us to consider the correctness of that decision. Sri Mirle Lakshminaranappa referred to us to several other decisions taking a view similar to the one taken by the Patna High Court. For the reasons mentioned above, it is unnecessary to discuss those decisions.

In the result, these appeals fail and they are dismissed with costs.