LAWS(MPH)-1960-7-10

BADRI NARAYAN HARNAND ROY Vs. JAWAHAR SINGH MANIRAM

Decided On July 20, 1960
BADRI NARAYAN HARNAND ROY Appellant
V/S
JAWAHAR SINGH MANIRAM Respondents

JUDGEMENT

(1.) THIS is decree-holder's appeal since his application for execution has been dismissed by both the Courts below.

(2.) THE decree was based on a compromise arrived at in a suit for the recovery of Rs. 870/ -. In the compromise it was agreed by the parties that the defendant would repay the debt in cash and kind by instalments :

(3.) THE decree-holder admitted to have receivedl from the judgment-debtor. 11/2mani millets in Phalgun Samvat 2011, and 11/2mani wheat in Jeth Samvat 2012, 25/- cash on June 17, 1955. 11/2 mani millets in Magh Samvat 2012 and Rs. 90/- cash, in lieu of 11/2 mani wheat, in Jeth Samvat 2013. It has been thus admitted by the decree-holder that he received all the instalments, but not on the agreed dates. he, therefore, claims the recovery of Rs. 606/8/- in this execution, because according to him the price of corn and the cash of Rs. 25/-, amounted to a total of Rs. 263/8/. (3a) It is urged by Shri Naokar that the appellant was entitled to recover the amount which he had abandoned inasmuch as the respondent did not perform his part of the contract in strict compliance with the compromise decree. The learned counsel relies on Bhawandas Ferroomal v. Menghraj, 45 Ind Cas 324 : (AIR 1918 Sind 68), T. Barclay v. Mt. Dhandei, AIR 1923 Pat 322, and Dayaram Gidumal v. Nabibux, AIR 1929 Sind 98. In my opinion not one of these cases has any application here. The question considered in those decisions is "the meaning of waiver under Article 75 of the Limitation Act.