RADHAKISSEN CHAMARIA Vs. DURGAPRASAD CHAMARIA

JUDGEMENT

(1.) The parties concerned in this case are the widow and the three sons of the late Ray Bahadur Seth Hardutt Rai Chamaria. One of these sons,, namely, Durgaprasad, sued his brothers Kadhakissen and Matilal and their mother Anardeyi Sethani to compel them to execute a conveyance and for other reliefs. Into the details of this litigation it is not necessary to enter and it would be sufficient to say that it ended in a decree on a compromise, the relevant terms whereof, shortly put, were that the defendants would pay to the plaintiff the moneys, together with interest, which the latter had paid for purchase of the properties, as also the expenses actually incurred by him for the said purchase, and that it should be declared that the properties belonged to the mother Anardeyi Sethani, Of the amount so to be paid, rupees four lakhs and twenty-five thousand was paid at the time, and the remainder, that is to say, another four lakhs odd, together with the expenses aforesaid, was to carry interest with yearly rests and was to be paid in monthly instalments on certain specified dates. It-was further provided that in default of payment of any instalment. on the dates aforesaid (i. e, specified) or within seven days thereafter, the balance then remaining, unpaid under the decree shall become forthwith payable.

(2.) The decree-holder applied for execution of this decree, alleging that there was default and that only rupees one lakh and five thousand had been paid out of the decretal dues. Some other instalments were in fact paid, but they were not certified within the time allowed by law; and on the objection of the decree-holder the executing Court refused to take cognizance of the payments. Anardeyi Sethani then instituted a regular suit and obtained a decree for the sums paid together with interest. The Court below has ordered that decree to be set oil against the one under execution. As- regards this matter there is no dispute.

(3.) There was a dispute as to what the expenses incurred by the decree-holder for his purchase actually amounted to, he having claimed Rs. 15,000 on that head, but the decree- holder has withdrawn his claim as regards that item.