Bombay High Court
Narayan Chitko Juvekar vs Vithul Parshotam on 25 April, 1887
Equivalent citations: (1888)ILR 12BOM23
JUDGMENT West, J.
1. The District Court in this case adjudged that the defendant should remove certain hedges and sheds by which the plaintiff was injured, but only on the plaintiff's delivering to the defendant two parcels of ground held by the former. As the land, it appears at the time of the decree, July, 1882, was occupied with growing crops, the decree deferred the time of fulfillment by saying that "the plaintiff is to give the defendant possessions &Cr, at the end of next Margashirsha (i. e., 9th January, 1883) and on his doing this, the defendant is to remove the hedges, &c, and make over the land in suit to the plaintiff." It is now contended that the specification of the end of next Margashirsha formed part of a condition precedent, and that having failed to 'satisfy this condition through his delay, the plaintiff has lost the contingent advantage bestowed on him by the decree, and can no longer execute it. The District Judge has understood the decree as merely fixing a time from which it was to take effect, so that the meaning was merely that nothing was to be done before the end of Margashirsha. "We think this is the correct view. It is not said that the plaintiff doing what he had to do on or before the end of Margashirsha should then recover from the defendant. He could not demand any fulfillment by the defendant before the end of that month. Thus the operation of the decree as a command was wholly postponed' until the time indicated which was thus prescribed as a term rather than as a condition, See Ev. Poth, Sections 230, 237; Colebr. Obl., Section 228. There is no provision that, failing fulfillment by the plaintiff at the end of Margashirsha, his right under the decree is to fail and such an expression is what one would look for where the precise date was intended to form an essential element of the condition. As the case stands, we think that the specification of the end of Margashirsha has merely the, effect of making the decree speak as from that time, and that conditional as it is with respect to the step to be taken by the plaintiff, the plaintiff had three years from the 9th January, 1883, within which he might seek execution. The construction demanded by the appellant would have this consequence, that, whereas a simple order for reciprocal delivery would have allowed the plaintiff three years from July, 1882, for execution, the postponement of operation of the decree would cut down the time allowed him to six months. The case of Sidney v. Vaughan Bro. P.C., 254 (2nd ed.) shows that the mention of something to be done coupled with an expression of time may but serve to indicate a term not to impose a condition sine qua non. The mention of a term when a particular right is to become enforceable is not a condition whether the enforcement be otherwise subject to a condition or not.
2. We confirm the decree of the District Court with costs.