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Judgment
The Subordinate Judge has now found against the alleged tender by appellant on November 30th and it has not been suggested that there was a
tender on any other day before a petition was filed on December 2nd that the Court should allow the amount to be deposited in Court. We think
that time in this case was of the essence of the contract and that the question of relieving against forfeitures, which arises when a penalty is provided
for non-performance as it did in Nagappa v. Venkat Rao 24 M.P 265 and Ana Sheik Mohidin Thttragan v. Vadivalagia Nambia Pillai 22 Ind.
Cas. 37 : (1914) M.W.N. 92 does not arise here.
The distinction between the two classes of oases is made clear in the judgment of Mookerjee, Acting Chief Justice, Kandarpa v. Banwari Lal
Nag 60 Ind. Cas. 864 : 33 C.L.J. 244
The interval between the date for payment of money and the date for taking possession of lands made the case in Supdu Dhoiu v. Madhavaram
Jivaram 57 Ind. Cas. 534 : 44 B.P 544 : 22 Bom. L.R. 780 one where time was not of the essence of the contract.
In the present ease neither the appellant (1st defendant) nor the5th defendant had any absolute title to the land apart from the compromise, and
it was expressly stipulated in the last paragraph of the compromise decree, that in default of payment within the time fixed, the alienation by the 1st
defendant in favour of the 5th defendant should be null and void.
The lower Appellate Court is right and the Civil Miscellaneous Second Appeal is dismissed with costs and the Civil Revision Petition is
dismissed.