Gopalji Chaudhuri vs Sumrit Mandar

Fazl Ali, J.—It is unnecessary to state the facts of this case at length because they have been fully narrated in the judgments of the Courts below. It is sufficient to say that the appellant''s father obtained an ex parte decree against the respondent who is a minor on 30th June 1923. The decretal amount was thereafter tendered to the decree-holder; but he refused to accept it, and so it was deposited in Court on 31st January 1924. Notice of this deposit was duly served upon the decree-holder. Nevertheless the decree-holder proceeded to sell the property of the judgment-debtor.

The question is whether the sale under these circumstances is valid. The Courts below have on a calculation of the amounts come to the conclusion that the amount deposited was short by five annas and six pies, and the lower appellate Court has taken the view that under these circumstances execution, could not have been taken out for the entire decretal amount. As against this view it was contended by Mr. Lakshmi Kanta Jha who appears for the appellant that under Order 21, Rule 1, Civil P.C., "all money payable under the decree" means the entire amount payable under the decree.

This view however does not find support in Amtul Habib v. Muhammad Yusuf (1917) 40 All 125 where it was held that where money is paid into Court by the judgment-debtor in satisfaction of a decree, interest on the decree will cease from the date of payment in proportion to the amount paid, although such amount may not in fact be the whole amount due under the decree. This decision clearly implies that even if a portion of the decretal amount is paid it will be a valid payment.

In these circumstances it is clear that the execution could not have been taken out on the basis that no portion of the decretal amount had been paid and in taking out execution in this manner the appellant clearly disregarded the provisions of Order 21, Rule 11(2)(e).

There is another aspect of the case which may be briefly referred to. In this particular case it has been found by both the Courts below that notice was served and yet the decree-holder did not appear to contest the validity or sufficiency of the deposit. It also appears that at an early stage it was admitted on behalf of the decree-holder that the deposit was sufficient. If the deposit was treated by the parties to be sufficient, it is clear that no execution could be taken out thereafter.

In my opinion the decision of the lower appellate Court is correct and the appeal must be dismissed.

Macpherson, J.

I agree.