CHIMNA Vs. CHUNNILAL

JUDGEMENT

(1.) THIS is second appeal by the judgment-debtor Chimna and arises under, the following circumstances.

(2.) THE respondents Chunnilal and Bhakhtawarmal and certain others as plaintiffs filed a suit against the defendant appellant for Rs. 3073/7/-on the allegation that they had incurred losses with respect to certain transactions for the purchase of gold mohars and silver peties made by them for and at the instance of the defendant and the latter was therefore, liable to reimburse them for the losses incurred.

(3.) THE defendant resisted the plaintiffs' suit in his written statement, but it is not necessary for the purposes of this appeal to state the de-Calls of the objections raised. On the 18th March, 1948, the parties entered into a compromise and obtained a decree on its basis. By this compromise decree it was agreed that the defendant would pay a sum of Rs. 700/-on Falgun Sudi 11 Smt. 2004 (corresponding to the 21st March, 1948), and a further instalment of Rs. 100/-on the Baisak Sudi 15 (corresponding to 22nd May, 1948 ). It was further provided that if the defendant had failed to pay Rs. 1700/-as specified on the due dates, the plaintiffs would be entitled to recover the entire, amount of the suit. The defendant thereafter paid the first instalment of Rs. 700/on the 3rd April 1948 instead of the 21st March, 1948 but the decree-holders accepted the amount. The defendant again failed to pay the second instalment on the 22nd May, 1948, and deposited the said amount in the execution Court on the 1st July, 1948. In his application dated the 1st July, 1948, which appears to have been actually presented in Court on the 1st July, 1948, the judgment-debtor stated that he had offered to the decree-holders the instalment of Rs. 1000/-payable on the 22nd may, 1948 (corresponding to Baisakh Sudi. 15 Section 2004) more than once but that the latter had not accepted it and that as the civil Courts were closed on the 22nd May, 1948, and upto the 30th June, 1948, he was depositing Rs. 100/-on the 1st July, 1948. It was also mentioned in this application that a notice had been given on behalf of the judgment-debtor by his counsel Shri Sampat Raj to the decree-holders that the sum of Rs. 1000/-been deposited by the judgment-debtor with his counsel and that the decree-holders should take away the same and that if the latter should fail to draw the amount, it would be deposited in Court on the close of the summer vacation and that a postal acknowledgment of the said notice signed by Chunnilal decree-holder dated the 16th May, 1948, (this is obviously a mistake for 16th june, 1948) was being put in. The money was accordingly deposited in Court on the 1st July, 1948. On the same day the decree-holder Chunnilal filed an execution application for the entire suit amount minus Rs. 700/, already received, on the ground that the Judgment- debtor had failed to pay the second instalment on the due date and, therefore, the decree-holders were entitled to levy execution for the entire amount of the suit. On the 11th August, 1948 the appellant raised an objection that the decree-holders were not entitled to execute the decree as they had paid the sum of Rs. 1700/- settled under the compromise. The judgment-debtor contended that the Court was closed on Baisakh Sudi 15th smt. 2004, that is the 22nd May, 1948, and that the money was deposited on the 1st day of the opening of the court on the 1st July, 1943, and, therefore, the instalment of Rs. 1000/- should be considered to have been paid within time. By a subsequent application dated the 15th September, 1948, the judgment-debtor stated that he had offered the second instalment of Rs. 1000/- to the decree-holders on Baisakh Sudi 15 but the latter had refused to accept the same and that thereafter the judgment-debtor had deposited the said instalment with his counsel shri Sampat Raj and had arranged to send a notice through him to the decree-holders that they should withdraw the amount from Shri Sampat Raj failing which the money would be deposited in court on the 1st July, 1948 and that as the decree-holders had not taken the amount from Shri Sampat Raj, the same had been deposited in court on the 1st July, 1948 and in these circumstances the application of the decree-holders for execution be dismissed.