V RAMA RAO Vs. CHELLAYYA PILLAI

JUDGEMENT

(1.) The only question for decision in this appeal is whether the tender made by the defendant of Rs. 950 on the 24 of August 1919 was within the time allowed by, the compromise entered into between him and the plaintiff. The compromise petition is dated 24 June 1912, and recites that if within 23 August 1919, i.e., within two months from this date, defendant should pay to plaintiff....Rs. 950. Otherwise, the full amount of Rs. 1,500 should be recovered with interest at 1 percent, per mensem from this date....

(2.) That compromise was put into Court by the parties on 27 June and a decree was passed in terms of the compromise. The question now is whether the date, 23 August 1919, was the date within which the payment had to be made, or whether the payment had to be made within two months from the date either of the compromise or of the decree thereon. It is certainly not at all free from ambiguity and the only way in which the question could be settled is to ascertain the intention of the parties.

(3.) I have been referred to several cases in which documents with repugnant sentences have been considered. Browne V/s. Burton [1848] 17 L.J. Q.B. 49 ; Jayne V/s. Hughes [1854] 10 Ex. 430 and Sharplus V/s. Hankinson 78 E.R. 661. I think that the principle set forth in all these cases is that when it is held that repugnant words " should be struck out, it means words " repugnant to the intention of the parties. " In the present case the payment was made by the defendant after borrowing on a date which was within two months, namely, 24 August. The plaintiff does not appear to have taken any exception to the payment until he brought this execution application on 3 December 1920, more than a year after the payment. Interest from this date is provided in the compromise and in that execution petition he calculated interest from 27 June 1919, the date of the decree and not from the 23 of June 1919, which he contends was the important date.