HARNATH RAI BINJRAJ Vs. HIRDYANARAIN KUMAR

JUDGEMENT

(1.) The question involved in this appeal is whether a tender of payment made by the judgment-debtors in fulfillment of one of the instalments due under decree is a valid one so as to operate to invalidate immediate execution of the decree without waiting for further instalments.

(2.) The facts giving rise to this case are that the decree-holder obtained a compromise decree for recovery of Rs. 32,989-15-3 in original suit No. 371 of 1936 in the High Court of Judicature at Calcutta in its original side on 27-2-1939, and it provided that the decree-holder would, after some remission, be entitled to recover a sum of Rs. 26,246 only plus costs of the suit allocated by the Taxing Officer of the Court with interest at 6 per cent. per annum from the date of the decree till realization, in the event of judgment-debtor's compliance with certain terms as agreed upon by the parties and incorporated in the decree. The terms were, (1) that Rs. 500 on account of part payment of costs would be paid on or before 30 Falgun 1316 F.S., (2) that the balance of the taxed costs would be paid on or before 30 Srawan 1346 F.S. or within one month of service of the allocatur of taxed costs on the attorneys of the adult defendants whichever date is later, (3) that Rs. 1000 towards decretal amount would be paid on or before 30th Srawan 1346 F.S., and (4) that the rest of the decretal amount of Rs. 26,246 only will be payable in 10 annual instalments of Rs. 2000 each payable on 30 Srawan of every year from 1347 to 1356 F.S. The default of observance of any of the aforesaid terms (NOS. 1 to 3) was, pursuant to the agreement between the parties, to attract the penalty that the judgment-debtor would forfeit the remission and the decree-holder will be entitled to recover his entire decree for the larger amount and the decree would be executable forthwith without waiting for later instalments to fall due. With regard to the payment of the decretal amount in 10 annual instalments, that is, condition No. 1, the default was to be deemed to have occurred only in case the judgment-debtors failed to pay two consecutive instalments.

(3.) It is admitted that the first term requiring payment of Rs. 500 on account of costs on or before 30 Falgun 1346 F.S. had been complied with, but, it is said, that there was no compliance with the second and third conditions of the compromise, namely, that of payment of the balance of taxed costs and of Rs. 1000 towards decretal amount on the dates specified in that behalf. On these allegations the decree-holder wanted to put the decree to execution for the entire amount of Rs. 32,989-15-3.