NARAYAN BAPUJI KSHIRSAGAR Vs. RAJIMAL MOTIRAM MARWADI

JUDGEMENT

(1.) The plaintiff in this case obtained a compromise decree by which it was provided that the defendant should pay Rs. 500 within the period limited in the decree against the decretal amount of Rs. 4,500, and thereafter he was to pay yearly instalments of Rs. 200 with interest at six par cent, on the balance of the principal due, In case of two defaults, the plaintiff was to be entitled to take into his possession the plaint property in consideration for Rs. 3,500.

(2.) On May 7, 1921, the defendant was in arrears of two instalments. One of the instalments was paid on May 9, 1921, and the second one on August 30, 1921.

(3.) On November 4, the plaintiff took out a darkhast for execution of the decree. The trial Judge looked upon the decree as a mortgage decree, and relying upon the rulings of this Court in Navsinha V/s. Balvant (1921) 23 Bom. L. R. 1238 and Supdu V/s. Madhavrao (1919) 22 Bom. L. R. 780 relieved the defendants of the consequences of technical defaults, holding that there would be no injustice in putting the plaintiff in exactly the same position in which he would have been, had no default of a few days been made by the defendants. He considered that the plaintiff had waived his rights by accepting the instalments after a few days delay.