RAM KINKAR SINGH Vs. SMTKAMAL BASINI DEVI

JUDGEMENT

(1.) This appeal arises out of an objection petition by the judgment debtors against the execution of a decree for Rs. 12,637-14.0. A compromise was entered into under which the decree was to be paid in a number of instalments. We are concerned in this case with the first two only; one was Rs. 200 by the month of Chaitra 1341 and the other was Rs. 400 by the month of Chaitra (the same month) 1342, corresponding respectively to 13 April 1935 and 13 April 1936. By the terms of the compromise if two successive instalments were in default, all the remaining instalments would be treated as in default and the decree, holder would be entitled to execute the whole of his decree. There is no dispute in this case that the first instalment of Rs. 200 was not paid and the controversy in the case is as regards the second instalment of Rs. 400. The case of the judgment- debtors was that they tendered the second instalment of Rs. 400 on 29 Ghaitra 1342 but that it was refused. Then it was paid into Court on 14 April 1936 by a petition and the order made by the Judge on that date was that the deposit was allowed and that the decree-holder was to be informed so that the money could be withdrawn. The learned Judge in the Court below has disbelieved the judgment- debtors story as to the tender. He has come to that conclusion for a variety of reasons amongst which was that if the judgment-debtors had been in earnest about the matter, they could have used the post office for sending 1 the money to the decree-holder. But there are other matters upon which the Judge relies for the conclusion to which I have referred.

(2.) One of the witnesses called to prove the tender was Muga Ram Pandit, an Ammukhtar of the judgment-debtors who states in his evidence that he offered Rs. 400 to Kumar Gyandra Narayan Singh, the husband of Kamal Basini Devi (the decree-holder), but he refused to take the money. A question which might have arisen but which has not been discussed is whether, if the evidence was accepted, the tender to the husband was a tender to the wife, the decree-holder; but that point, as I have said, has not been discussed. But during his cross-examination that witness states that no one was present when the money was tendered.

(3.) On the other hand the second witness called by the judgment, debtors, Kashipada Lal, was put into the witness-box for the purpose of stating that he was present at the time of the tender. There is of course an obvious contradiction in his evidence and that is one of the matters which has influenced the learned Judge in coming to the conclusion at which he has arrived. It is difficult for this Court to hold that the Judge was wrong in refusing to accept this evidence--evidence of the witness who appeared before the Judge and whose demeanour was apparent to him--having regard to the matters to which I have referred and also with regard to an equally important point to which I shall now refer.