S T P KASI CHETTI ALIAS THENAPPA CHETTI Vs. MINOR NAGAPPA CHETTI LATELY A MINOR SINCE DECLARED A MAJOR AND GUARDIAN DISCHARGED

JUDGEMENT

(1.) These appeals arise out of certain proceedings had in execution of the decree in O.S. No. 76 of 1925 on the file of the Sub-Court, Sivaganga. That decree was passed on the 21st December, 1932, and was slightly modified in A.S. No. 37 of 1933 of this Court on the 23rd August, 1934. The decree directed the payment of money to the two plaintiffs Palaniappa Chetti and Nagappa Chetti. The first plaintiff became a major in 1931 and the second plaintiff was at all material times a minor. On the 21 January, 1935, the plaintiffs and defendants filed a joint petition in the Sub-Court requesting the Court to sanction a compromise. By that compromise the terms of the decree were varied. The original decree provided that the decretal amount should be paid jointly to the plaintiffs. By the compromise it was provided that half of it should be paid to the first plaintiff and half to the second plaintiff. Then the amount of the decree was varied. The decree amount was about Rs. 64,000. The plaintiffs in consideration of the defendants refraining from filing an appeal in the Privy Council agreed to receive Rs. 50,000. Lastly and this is the part of the compromise with which we are now concerned, the parties agreed that the money should be paid in four instalments, on the 6th November, 1934, 6 February, 1935, 6 May, 1935 and 6 August, 1935. The first two instalments were to be paid to the first plaintiff and the second two instalments to the second plaintiff. The first two instalments were duly paid, and as provided in the compromise, part satisfaction of the decree was recorded by the Court in respect of them. As regards the third and fourth instalments payable to the second plaintiff the compromise provided that payments should be made to the next friend of the second plaintiff who was at the time of the suit and at the time of the compromise petition his mother Muthayi Achi living in a town in Pudukkottah State. It was also a term of the compromise that these payments should be made not in cash but since the second plaintiff was a minor, it should be made in the shape of Government bonds and postal certificates. Defendants 6 to 8 did not, as a matter of fact, deliver Government bonds and postal certificates to Muthayi Achi on the 6 of May, 1935, for the third instalment nor on the 6 of August for the fourth instalment. What they did was that on the 24 of June, 1935, they paid into Court in money the amount due up to that date in respect of the third instalment and filed an application E.A. No. 222 of 1935 requesting the Court to record part satisfaction of that instalment and on the 5 of August, 1935, they paid into Court the money due in respect of the fourth instalment and made a similar request to the Court, with the further prayer that full satisfaction of the decree should now be entered up. The second plaintiff contested these applications and contended that the terms of the compromise had been broken and that therefore the default clause in the compromise came into operation. The default clause is found in paragraph 7 of the compromise and reads as follows: If default is made in respect of any instalment out of the instalments stated above, even in the manner stated in paragraph 6, the plaintiffs are at liberty to recover by proceeding in execution the aggregate amount of principal, etc., due as per the appeal decree after deducting such of the amounts as might have been received subsequent to the High Court decree, as on the respective dates.

(2.) The Subordinate Judge on the 26 of July, 1933, rejected the defendants petition holding that the satisfaction tendered was not in accordance with the terms of the compromise and that part satisfaction could not therefore be entered in respect of the third instalment. On the 28 of August on E.A. No. 312 he passed a similar order and also observed that on account of the default of the defendants the default clause in the contract enured to the benefit of the plaintiff. The present appeals are against these orders respectively.

(3.) The question for our decision is whether there was any default made by the defendants in the payment of the third and fourth instalments of the Rs. 50,000 which they were bound to pay under the compromise aforesaid. It may be explained here that the compromise allowed a period of 30 days grace after the due dates of payments, providing for interest at the rate of Re. 0-4-0 per cent, per mensem during the said period.