Sultan Ahmed, J.:— The respondents, decree-holders, obtained a decree against the appellants, and in execution of that decree the lower Court had assessed a certain amount as the value of the property sought to be sold. An appeal was preferred by the judgment-debtors, and during the hearing of the appeal from the order of assessment the decree-holders, respondents, filed a petition on 28th May, 1918, by which they agreed that if the judgment-debtors, appellants, paid to the decree holders the entire decretal amount with costs, within two months even after the sale was held, the decree-holders shall have no objection to have the gale set aside, and further agreed, on receipt of the entire decretal amount with costs, to file a petition certifying payment and to have the sale set aside.
2. The sale took place on 27th July, 1918 and was confirmed on 26th August, 1918. It is admitted that the decretal amount with costs was not paid within two months from the date of sale, that is 27th July, 1918. The Court rose for the Poojah holidays on 17th September and reopened on 21st October, on which date the judgment-debtors filed an application for permission to deposit the decree money, and the money was deposited on that very day.
3. The first Court, on the application of the judgment-debtors, appellants, set aside the sale.
4. An appeal was preferred to the Subordinate Judge, who held that the payment of the decretal amount with costs not having been made within two months from the date of sale, the sale stood good and could not be set aside. A second appeal has now been preferred to this Court against the order of the first Subordinate Judge.
5. It was first contended by the learned vakil appearing on behalf of the appellants that time was not of the essence of the contract and the appellants were entitled to pay the decretal amount with costs on the reopening of the Court. In my opinion this position is not available to the appellants in the face of the clear language of the petition itself. It is clearly stated therein that the appellants, judgment-debtors, had to pay the decretal amount with costs within two months from the date of sale.
6. The second ground taken up by the learned vakil on behalf of the appellants was that as the respondents, decree-holders, had to do a certain thing under the petition of compromise after the receipt of the decretal amount, and as their part of the contract would not be performed as long as the Court was not sitting, the appellants, judgment-debtors, were not bound to pay the decretal amount before the reopening of the Courts. In my opinion this contention is not sound. All that the decree-holders agreed to was that the sale would be set aside on the entire decretal amount with costs being paid by the judgment-debtors within two months after the sale. What they bad to do after the decretal amount was paid was not really a part of the contract. The application stating full satisfaction could be made when the Court was sitting, but that had absolutely nothing to do with the payment of the decretal amount within two months, a condition which had to be fulfilled before the sale was set aside.
7. The third ground urged was that in any case Section 4 of the Lim. Act, applied to the facts of the present case and the money could be paid on the reopening of the Courts on 21st October. Section 4 of the Lim, Act, however has got no application inasmuch as there was a private contract [between the parties, and S. 4 does not apply to a case where a certain date has been fixed for the payment of the money by agreement of the parties.
8. The three grounds urged by the learned vakil appearing on beholf of the appellants therefore fail, and this appeal must be dismissed with costs.
9. Mullick, J.:— I agree.
V.S/R.K
10. Appeal dismissed.