Macleod C. J
1. This is an appeal against the decision of the District Judge of Sholapur upholding the order of the Subordinate Judge directing that the Darkha8fc taken out by the plaintiff should proceed.
2. The parties were partners in a banking shop wich was not successful and so the partnership account had been made up and a balance was found due against the defendants. The plantiff filed a suit No. 51 of 1915 on his partnership claim and a decree was passed in his favour on an award. The decree was passed on the 22nd February 1917 directing that the decretal amount should be paid in eight equal instalments of Rs. 371-9-4 and interest according to the balance due at the time when any one instalment was paid. The decree also directed that in default of payment of any two instalments, the plaintiff should recover he whole amount then due by the sale of the property mentioned through Court. It appears that in the plaint, the plaintiff asked for a charge in respect of the amount due on certain immoveable property although it is difficult to see what was the basis of the claim. However, he got a declaration in the deeree 1821 that he was entitled to that charge.
3. There can be no doubt that the defendants got into arrears be. fore paying the first instalment which fell due on 10th May 1918. It was not paid until 19th April 1919 The second, instalment which was due on 30th April 1919 and the third instalment which was due on the 18th April 1920 were not paid. The defendants having made no further payments were in default of two instalments. Before 18th April 1920, they asked the Court to extend the time. That application was not heard until June 1920 when it wan rejected. Then the defendants made payment of the second instalment which ought to have been paid on the 30th April 1919, and, on the 6th May 1921, they paid the instalment which ought to have been paid on the 18th April 1920. Therefore; the defendants cannot escape the consequences of their default except by appealing to our sense of equity.
4. From the record we cannot say whether the default was due to circumstances beyond their control or whether it was due to their culpable neglect in not making payment within due time of the first instalment. But we cannot agree with the argument of the plaintiff that in cases of default, we have no power whatever to relieve a party from the consequences of his default. As a Court of Equity we have wide powers to do what seems to us just. There is no injustice in putting the plaintiff' exactly in the same position as if no default had been committed. The plaintiff has the security of the property for the balance of the decretal amount and interest is running on that amount. Therefore he loses nothing of what he would have got if defendants had done what they had been ordered to do. We, therefore, allow the appeal on these terms:-
5. The defendants should pay the costs of the Darkhast throughout and the instalment (including interest) which fell due in April or May 1921 within two months from the time the proceedings reach the lower Court. In default of payment the Darkhast should proceed.