KISHAN PRASAD Vs. BENI RAM

JUDGEMENT

(1.) The appellant obtained against the respondents a decree for the payment of money by instalments, one of the terms of which was that the respondents were to pay Rs. 75 on or before the last day of Sawan in each year, and in case of default, execution might be taken out for the whole amount of the decree. The respondents paid the instalments by due date in 1303 and 1304F., and there is no dispute as to them. The question which we have to decide in this appeal concerns the instalment which was payable on or before the last day of Sawan 1305F. (August 2nd, 1898;. On July 23rd, 1898, the respondents despatched a money- order for Rs. 75 to the address of Jamna Prasad, one of the appellants, who resided in a locality in which, under the rules in force, the Post Office does not pay the amount of a money-order to the payee at his house, but sends notice of the arrival of the money-order, requesting him to attend personally at the Post Office, or send a duly authorized agent to receive payment of the amount. On July 26th, a notice of this kind was sent to Jamna Prasad, who first of all said that he wished the money sent to his house, but afterwards told the Post-master that he would "take the money, after inquiry." He never did take the money, and it was ultimately returned to the respondents, but meanwhile the time within which the instalments had to be paid elapsed.

(2.) On August 29th, the appellants applied for execution of the decree in respect of the whole sum decreed, alleging that the respondents had failed to pay the instalment for 1035F.

(3.) The Munsif ordered execution to issue as prayed, but on appeal the Subordinate Judge held that the instalment for 1305F, had been sent to the appellants in time, and that they had improperly refused to accept it.