JUDGMENT
1. This is a decree-holder's appeal from an order passed by the learned Subordinate Judge of Cawnpore disallowing execution of a decree applied for by the appellant. It appears that a compromise decree was passed in favour of the appellant for Rs. 20,000. The decree, however, provided that if a sum of Rs. 13,000 was paid in the manner stated in the compromise it would be fully satisfied. If, on the other hand, payment was not made in the manner agreed on, the decree-holder would be entitled to take out execulion for the entire amount. The manner of payment referred to in the compromise was in five instalments. The first instalment of Rs. 2,500 was payable on December 22, 3929, the second one of the same amount on June 22, 1930, the third of the same amount on December 22, 1930, the 4th of the same amount on June 22, 1931, and the last instalment of Rs. 3,000 was payable on December 22, 1931. The compromise proceeded to lay down that in case the defendants failed to pay the instalments on due dates and three instalments were allowed to become overdue, or the defendants failed to pay Rs. 13,000 in 2 1/2 years, then in either case, the defendants would be liable to pay the entire decretal amount, namely, Rs. 20,000. No payment was made in respect of the first two instalments. On December 22, 1930, when the third instalment was payable the judgment-debtors filed a tender, of payment of Rs. 2,500, which was actually deposited in the treasury on the next day. The judgment-debtors subsequently paid the remaining part of Rs. 13,000 within the stipulated period of 2 1/2 years. The decree-holder then took out execution for the remaining Rs. 7,000 on the allegation that the judgment-debtors did not comply with the conditions laid down in the compromise and rendered themselves liable to pay the entire sum of Rs. 20,000.
2. The learned Advocate for the decree-holder bases his contention on the stipulation in the compromise that if three instalments are allowed to become due, then the entire sum of Rs. 20,000 would be payable. He argues that in so far as three instalments became due on December 22, 1930, the judgment-debtors forfeited the concession given to them by the compromise. We have carefully considered the language of the compromise and are of opinion that this contention cannot be accepted. The stipulation preceding the one relied on should not be ignored. The latter provides that the instalment shall be paid on specified dates, and if payments are not made on those dates and three instalments are allowed to fall in arrears, the decree-holder would be entitled to recover the entire Rs. 20,000. Taking the compromise as a whole we have no doubt what the parties meant and what is the right construction to be placed on it. The right of the decree-holder to recover the enhanced amount would come into existence if three instalments become overdue and none of them is paid. The fact that three instalments became due alone is not enough. There should be the further condition that payment of any of them should not be made. Here though three instalments became due on December 21, 1930, payment of one of them was made. The contingency in which the decree-holder was entitled to recover the entire sum of Rs. 20,000 did not, therefore, arise.
3. It is next contended that the judgment-debtors could have made the payment to the decree-holder out of the Court and that they merely filed a tender in Court on the last day, [the actual payment having been made the next day, i.e., one day after the date fixed for the payment. It has been held in a number of cases that tender amounts to payment if money is deposited within the usual time. It is not suggested that the judgment-debtors had no ready money on December 22, 1930, and the filing of tender was merely a pretence of payment. It was open to the judgment-debtors to make payment through Court. Indeed, we think this was a more prudent course. They were justified in paying through Court and the only manner in which they could have done that was by filing a tender in Court and depositing the money in the treasury. We hold, in these circumstances, that the tender made on December 22, 1930, amounts to payment on that date. The learned Counsel for the decree-holder has referred us to Kunj Behari Singh v. Bindeshri Prasad Singh 115 Ind. Cas. 796 : (1929) A.L.J. 286 : A.I.R. 1929 All. 207 : 5 I.A. 527. That case is easily distinguishable from the one before us. There the tender was filed one day after the date fixed for payment and the actual deposit was made still later. Assuming that tender amounted to payment, it could not be denied in that case that payment was made one day beyond time. In the case before us tender was made in time, and if tender amounts to payment--as we hold it does--payment should be considered to have been made in time in the present instance.
4. The appeal fails and is dismissed with costs.