Narayan Bapuji Kshirsagar vs Rajimal Motiram Marwadi

Norman Macleod, Kt., C.J.—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.

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.

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 Narsinha Gopal Vs. Balvant Madhav Vadgaonkar, and Supdu v. 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.

The plaintiff appealed, and the appellate Judge misreading the terms of the decree seems to have thought that the decree was payable by instalments of Rs. 500 a year. As a matter of fact the first instalment after the first payment of Rs. 500 would be Rs. 440, and the instalments would decrease as the interest on the balance became less and less. The Judge was wrong then in saying that the defendants had not paid the subsequent instalments in full, That entirely vitiated his judgment, because he thought that three defaults had been made, and therefore he considered the decisions I have referred to would not apply without much straining.

Reference has been made by the respondent to the decision in Lachiram v. Jana Yesu (1914) 16 Bom. L. R. 868 . That decision, I have always thought with all due respet, did not enunciate a correct principle, and I have always been opposed to the suggestion that one Court can bind all Courts in future by deciding that no consent decree can possibly be departed from even when justice and equity demand it. It is the privilege of this Court to administer equity, and, in following the principles of equity, to relieve against forfeiture, if it considers the nature of the case requires it.

In this ease we see no reason why the appellants who have now paid all the instalments due should he not relieved. As the trial Judge remarks the defendants are agriculturists, and the loss of their property would mean a very great deal to them.

The appeal will be allowed and the default excused. Appellants will be entitled to their costs in this Court and in the Court below.

Coyajee, J.

I concur.