S.S. Dhavan, J.
1. This is a decree-holder's appeal against the order of the learned Civil Judge, Meerut, allowing the judgment-debtor's objection against the execution of the decree. The facts are these: Ram Saran Dass the appellant decree holder filed a suit against the defendant Kishan Dass for Rs. 1376/-/- and interest. The dispute was compromised in these terms:
'The plaintiffs claim is admitted and let it be decreed with costs and pendente lite and futureinterest. But parties have settled that if the defendant paid to the plaintiff Rs. 1000/- by 30-5-49 then the whole of the decretal amount would be deemed satisfied.'
2. It appears that the judgment debtor was not able to deposit the amount till 1-6-49. He did go to the court on 30-5-49 and got a tender on that date. But, for some reason he was not able to deposit it on that or the next day, but did deposit the entire amount on 1-6-1949 in the Bank. Thus, there was a delay of two days in making the deposit.
3. On 18-7-1949 the decree holder withdrew this amount. But subsequently he applied for execution for the balance due under the original decree. The judgment debtor objected that the decree holder could not execute the decree after having withdrawn the amount deposited under the compromise. The trial court held that the withdrawal of this amount did not debar him from levying execution for the balance as the judgment debtor had failed to pay the amount to the decree holder according to the terms of the compromise. On appeal the learned Judge held that the tender by the judgment debtor in court on 30-5-49 amounted to payment in satisfaction of the compromise decree. He allowed the appeal and directed that the decree holder's application for execution be struck off in full satisfaction. Aggrieved by this order the decree-holder has come to this Court in second appeal.
4. It appears to me that both the courts below applied their mind to the question, whether the judgment-debtor had complied with the terms of the compromise or not. They overlooked the real issue in the case which concerns the conduct of the decree holder. Assuming that the judgment debtor had not paid the amount within the time permitted by the agreement, there were two courses open to the decree holder. He could either condone the delay and accept the amount in full satisfaction, or reject it on the ground that payment within time was of the essence of the compromise. But he could not accept the money and still claim that he had not condoned the delay, nor was he entitled to repudiate the compromise. The amount was paid into court under the understanding that it would be accepted as payment made under the compromise.
There was an implied condition that the money was being tendered under the compromise and that its acceptance would be under it, it was at best a conditional payment. The acceptance of any benefit or consideration tendered under a conditional offer amounts to the acceptance of the conditions attached to the offer, and the acceptor cannot accept the benefit without accepting the condition. In the present case, the decree holder had no legal right to touch the amount deposited by the judgment-debtor except as a party to the compromise. Having withdrawn the amount, he must be deemed to have condoned the delay in payment, if any, and to have accepted it in full satisfaction of the compromise. His conduct in withdrawing the amount and then going back on the compromise smacks of sharp practice.
5. The appeal is dismissed. The respondentshall have his costs from the appellant in allcourts.