9911796707
TMI Blog1971 (11) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... Road, Bangalore, together with stamp charges of ₹ 3,300/- (rupees three thousand and three hundred only) with interest at six per cent per annum of the above two sums from 16-3-1947 up-to-date together with ₹ 7,000/- (rupees seven thousand only) deducted by the Corporation minus the rent received viz., ₹ 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 the premises. (ii)The period of time fixed for the payment by the plaintiff to the defendant of this amount stated above is till 1-1-1960. (iii)The plaintiff agrees to deposit the amount in court for payment to the defendant. (iv)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. (v) 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. The respondent applied for challan on 22-12-1959 to deposit the amount and a challan was issued to him on 24-12-1959, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t within a certain period or by a certain date, as in this case, the law will not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period. Whether there is any logical or reasonable basis for making the distinction, we clear that in this case the respondent had the right or, perhaps, more accurately, the liberty to deposit the amount in court till and including 1-1-196O. In Halsbury's Laws of England vol. 37, 3rd Edition, page 96, :it is observed Subject to certain exceptions, the general rule is that, when an ,let may be done or a benefit enjoyed benefit enjoyed upto the last moment of the last of that period. if the respondent had the right or liberty to deposit the amount III court on 1-1-1960 under the compromise decree the fact that he did not choose 'Lo make the deposit earlier would not affect his right or liberty to deposit the amount in court on 1-1-1960. In Fateh Khan and another v. Chhajju and others(A.I.R. 1931 Lahore 386), an argument similar to the one addressed by counsel for the appellant was advanced but was not countenanced by the court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect. The Principle underlying these decisions is that when the judgment debtor has the option to pay the decree amount to the decree holder or to deposit it in court, he cannot choose one of them and act in a manner so as to prejudice the rights of the other party. Although under Order XXI, Rule 1. it is open to a judgment debtor to pay the amount direct to the decree holder or to deposit in court, he cannot choose the alternative when that will prejudice the decree holder. Even here there is a conflict of opinion among the High Courts. In Chatlapali Suryaprakasa Rao v. Polisetti Venkataratnam and others(A.I.R. 1938 Madras 523), the compromise decree there in question provided that the decretal amount should be paid in certain yearly instalment on certain fixed date in each year. The decree further provided that in case of default of two successive instalments the whole amount would be recovered. The decree however did not provide to whom the money was to be paid. The judgment debtor failed to pay the first instalment. On a day previous to that on which the second instalment was due he obtained a challan. The day on which the instalment was due being a holiday, he paid th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, yet. If the delay is caused not by any act of their own, but by some act of the court itself-such as the fact of the court being closed-they are entitled to do the act on the first opening day. In Satnbasiva Chari v. Ramasami Reddi(I.L.R. 22 Madras (1899) p. 179), the Madras High Court held that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity. We have already referred to Fateh Khan and another v. Chhajju and others where the Lahore High Court applied this principle to a preemption decree. Mayor v. Harding([1867] 2 Q.B. 410) is a case in point. In that case the appellant had applied to justices to state a case under the Summary Jurisdiction Act, 1857. He received the case from them on Good Friday, and transmitted it to the proper court on the following Wednesday. It was held that he had complied sufficiently with the requirement of the Act directing him to transmit the case within three days after receiving it, as it was impossible for him to transmit the case earlier than h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution of the decree on that basis. A court executing the decree shall execute it as it stands. It cannot modify or vary the terms of the decree. No exception can be taken to that general principle. But the execution court has the right to construe a decree in the light of the applicable provisions of law and if in this case on a construction of the decree in the light of the applicable provision of law, it found that the deposit made by the respondent on 2-1-1960 was according to law a deposit in compliance with the terms of the decree, then the execution court was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law. Counsel then contended that a compromise decree is none the less a contract, notwithstanding the fact that an order of court is super-added to it and, a provision in a contract that an act shall be done within a certain period or by a particular day by a party is absolute. In other words counsel said that duties are either imposed by law or undertaken by contract and the ordinary rule of law is that when the law creates a duty and a party is disabled from perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws, different considerations arise and therefore, where I compromise decree contains a term against alienating certain property and gives the other party right to its possession on such alienation, the decree is not a nullity in spite of the fact that the term is opposed to S. 10, T.P. Act. And the fact that it is contrary to law would not affect its binding character, unless it is set aside by taking proper proceedings. That different consideration would apply when a contract is embodied in a judge's order is also clear from Morris v. Barret(1). In that case by a consent order it was provided that, upon payment of the debt and costs as agreed, in installments on the 28th of May, on the 25th of June and on the 25th of every succeeding month until the whole is paid, all further proceedings in the cause be stayed. The order further provided that, in case default be made in any payment as aforesaid, the plaintiff be at liberty to sign final judgment for the said sum of 341., and issue execution for the amount unpaid. The first and two following installments were duly paid. The 25th of October, the day on which the fourth installment became payable, being a Sunday, the defendant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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