KRISHNARAO PANDURANG BARVE Vs. BALVANT KESHAV PATIL

JUDGEMENT

(1.) The plaintiff in this ease obtained a decree in his favour in suit No. 28 of 1916. The following amended decree was passed by the appellate Court:- The decree of the lower Court is altered and it is ordered as follows :- The defendant should pay to the plaintiff the sum of Rs. 4,384-2-2 together with interest thereon by equal four annual instalments. The first instalment should be paid on the date the 5 of the month of June in the year 1919. Interest on each instalment should be paid at the rate of four per cent, from May 9, 1918, till payment of the whole amount. If he fails to pay the instalment, interest at the rate of six per cant, will continue to run from the dates on which the instalments will not be paid. The defendant should henceforth pay the Government assessment until delivery of possession to the plaintiff if occasion for such delivery to the plaintiff arises. If the plaintiff has paid the amount of (Government assessment after May S, 1918, the same should be recovered by the plaintiff from the defendant together with interest thereon at six per cent, from the date of the payment) of the Government assessment. If the plaintiff henceforth paid the Government assessment, he should recover the same with interest therein to be calculated at the rate of six per cent, from the date of the payment of the Government assessment within one year. After all the instalments have been paid and after all the above mentioned amounts have been paid, the plaintiff should pass a sale deed to the defendant if the latter requests the former to do so. He should execute the sale-deed after the defendant brings to him the stamped paper required for the sale-deed of Rs. 3,180. If the defendant fails to pay the above-mentioned amounts within the period in which the last instalment is to be paid, the plaintiff is at liberty to claim back the possession of the property mentioned in the plaint. And the same is on the following; condition :-The plaintiff is at liberty to claim the same if he pays before taking back the possession the amount which the defendant may have paid by way of principal out of Kg. 3,180.

(2.) The defendant paid Rs. 1,350 on March 11, 1921, and Rs. 1,061-4-2 on December 11), 1921. He made no further payment until after the presentation of the present darkhast, which the plaintiff took out on September 8, 1922, and with it he paid into Court Rs. 424-4-6 for payment to the defendant. He stated that since the defendant did not pay all the instalments within the date fixed for the last (fourth) instalment (June 1922) as directed by the decree, he was entitled to demand back possession of the suit property from the defendant on his recouping the defendant the amount paid by the defendant out of the principal sum of Rs. 3,180 in accordance with the terms of the decree.

(3.) The defendant thereafter deposited Rs. 3,158 in to Court for payment to the plaintiff, and said that as that amount covered more than the amount due to the plaintiff under the decree the plaintiff might be paid the proper balance due to him under the decree out of the same, and his prayer for execution of the decree by recovery of possession of the property from the defendant should not be granted. The plaintiffs pleader admitted that calculated at six per cent, per annum interest the amount now due to the plaintiff was Rs. 3,141-5-0, but he contended that since the defendant failed to pay off the instalments before the end of June 1922, the plaintiff was not bound to receive the said balance from the defendant, but was entitled to demand delivery of possession of the property under the terms of the decree.