MUDHOLKAR, J. - (1.) THIS is an appeal by a surety to a decree. The facts material for the decision of the appeal are as follows. The respondent sued one Shanker on a promissory note and the claim was for Rs. 1,242.5-0. Ultimately, the suit was compromised and a decree was passed in favour of the respondent for Rs. 1,242 and costs amounting to Rs. 128-12-0. The decree, however, provided that if Shanker furnished security for the decretal amount by 3rd December 1944 and paid Rs. 600 and full costs by 1st February 1946, the decree would be deemed to be satisfied. The appellant became Shanker's surety and executed a security bond on 4th December 1944. As the sum of Rs. 600 and costs were not paid to the respondent by 1st February 1945, he filed an application for execution of decree for the full amount presumably on 2nd February 1945. On the same day, the appellant offered to pay, him Rs. 728.12. 0 but the respondent asked him to deposit the amount in Court. Accordingly he deposited the amount on 3rd February 1945. The respondent thereupon applied for its withdrawal and actually withdrew it on 6th February 1945. On 9th February 1945, the executing Court passed an order dismissing his execution application as partly satisfied.
(2.) I may mention that in his application for permission to deposit the amount of Rs. 728-12-0 in Court, the appellant stated that he was making the deposit in full satisfaction of the decree. He, however, did not file an appeal against the order dated 9th February 1945 dismissing the execution application as partly satisfied. On 16th February 1945, the respondent made another execution application for the recovery of Rs. 642 which was the balance left after deducting the amount which was deposited by the appellant in Court and withdrawn by the respondent. On 11th September 1945 the appellant's counsel asked for time to argue whether the delay in depositing the amount could be condoned. Time was given to him to do so till 29th October 1945. On that date his counsel stated that he did not want to press the point and that he wanted time to pay the balance. Time was granted to him till 24th December 1945. Before that date, he filed an application for condoning the delay. That application was dismissed on 2nd September 1946. An appeal preferred from its dismissal was also dismissed by the lower Appellate Court and this is a second appeal from the latter's decision.
(3.) THE contention that the time for payment should have been extended was not pressed before me, and quite rightly. It was, however, argued that the deposit made by the appellant was conditional and the respondent having withdrawn it must be deemed to have accepted the amount in full satisfaction of the decree. In support of this contention reliance is placed on the following two decisions, Ram Chandra Marwari v. Keshobati Kumari 36 Cal. 840 and Kashiram v. Pandu 27 Bom. 1.;