PRABHUDAYAL Vs. SHANKAR RAM

JUDGEMENT

(1.) THIS is the defendants' second appeal, and arises out of a suit filed by the plaintiff Shanker Ram against them for the recovery of Rs. 877/13/. It was alleged in the plaint that the defendants had given a document Ex. 1 for the sum of Rs. 918/13/-, which was found due from them on the 18th of May, 1947, for previous accounts. Out of this sum, a sum of Rs. 180/- was paid. The plaintiff claimed Rs. 738/13/- on account of principal and Rs. 139/- on account of interest at the rate of 12% per annum. The defendant Prabhu Dayal did not file any written statement. Totaram, however, filed one. His defence was that he had not borrowed any amount in cash from the plaintiff, but that the amount sued for was due for the loss on certain transactions (Souda Satta ). It was pleaded that the said transactions were wagering transactions, and were, therefore, void. It was also prayed in the written statement that if any amount was held due against the defendants, they be allowed to pay it in* yearly instalments of Rs. 60/ -. Prabhu Dayal who did not file any written statement of his own adopted the written statement of Totaram.

(2.) THE court of first instance held that no advances were made in cash by the plaintiff to the defendants, and that the document in question was executed for the payment of dues arising out of contracts which were wagering contracts. THE suit was consequently dismissed. On appeal, the learned Senior Civil Judge, Khetri, held that the defendants failed to prove that the amount evidenced by Ex. 1 arose out of losses from any wagering contracts. He consequently reversed the decree of the first court, and decreed the suit, but he ordered payment of the decretal amount in six monthly instalments of Rs. 100/ -. Against this decree of the appellate court, the defendants have come in appeal, and the plaintiff has filed cross-objections objecting to the instalment order.