JUDGMENT 1. Respondents 1 and 2 borrowed a sum of Rs. 75,000 from late Haran Chandra Chakravarty on a promissory note on nth July 1933. The promissory cote was executed in favour of Kabiraj Haran Chandra Chakravarty as shebait of the deity Anandamoyee Thakurani. Shortly thereafter, Kabiraj Haran Chandra Chakravarty died leaving a will. He was survived by six sons, Suresh, Ramesh, Jagadish, Govinda, Narayan and Sachindra. By the will, he appointed Suresh, Jagadish and Narayan as shebaits to the deity. While the contested probate proceedings were pending, the sons of Haran compromised their disputes and differences and a deed of family settlement was executed by them as also by the executors appointed by Haran in his will on 20th September 1935. Later on, there were various proceedings between the sons and the executors. The rights of the parties were settled by a decree of this Court passed in First Appeal No. 176 of 1940. By that decree the deed of family settlement of 20th September 1935 was upheld in its entirety. By the family settlement, the moneys due from respondents 1 and 2 on the aforesaid promissory note were treated as secular property of Haran and were allotted to Ramesh, Gobinda, Narayan and Sachindra. While these disputes between the parties were pending Jagadish who was the managing shebait in terms of Haran's will was permitted by this Court to institute the suit on the promissory note. He accordingly instituted the suit and later on Narayan and Suresh joined in the suit in their capacity as shebaits. The suit terminated in a decree in favour of the plaintiffs then on record on 4th February 1941, that is to say, before the decree had been passed by this Court in First Appeal No. 176 of 1940. The borrowers respondents 1 and 2 admitted the claim but they prayed for instalments. For the purpose of getting instalments, an officer of respondents 1 and 2 Harendra Nath Sarkar deposed. His deposition is as follows: Debt is admitted. The defendants are not in a position to pay up the dues all at a time on account of bad condition. The defendants will be able to pay the money by 18 yearly instalments. The money will be payable in Chaitra of each year. That is what he said and nothing more. His deposition is as follows: Debt is admitted. The defendants are not in a position to pay up the dues all at a time on account of bad condition. The defendants will be able to pay the money by 18 yearly instalments. The money will be payable in Chaitra of each year. That is what he said and nothing more. He did not in his deposition give materials relating to the means and circumstances of his masters. The evidence is very vague and for the purpose of judging how many instalments ought to be given it is useless. The learned Subordinate Judge, however, on this evidence granted 18 annual instalments, the first instalment being made payable by chaitra 1348 B.S. and the subsequent instalments within Chaitra of succeeding years. The decree that was passed was for Rs. 1,03,956-4-0 on account of principal and interest and Rs. 2805-13-0 costs, total rupees 1,06,762-1-0. The judgment-debtors have paid instalments for the years 1348, 1349 and 1350 B.S. and Ramesh, Gobinda, Narayan and Sachindra to whom the money payable on the promissory note had been allotted by the deed of family settlement have withdrawn from Court, the money representing the instalments for 1348 and 1349 B.S. But the money in respect of the last instalment, namely, 1350 B.S. is still lying in Court. Jagadish as the managing shebait of the idol has preferred this appeal and the only question in this appeal is whether the learned Judge was right in granting as many as 18 annual instalments for the payment of the decretal amount. 2. To this appeal the other sons of Haran, namely, Suresh, Ramesh, Gobinda, Narayan and Sachindra are parties respondents. Suresh and Narayan, however, are parties in their capacity as shebaits of the aforesaid deity. 3. An application has been made to us by Gobinda and Sachindra to be transposed to the category of appellants. The basis of their application is that by reason of the deed of family settlement which has been upheld by this Court in its decree passed in First Appeal No. 176 of 1940, the amount decreed by the lower Court now belongs to them and to Ramesh and Narayan in their personal capacity, This application is opposed by Mr. Chowdhury who has appeared for respondents 1 and 2. The other sons of Haran do not oppose this application. Chowdhury who has appeared for respondents 1 and 2. The other sons of Haran do not oppose this application. The shebaits of the deity who are on record do not oppose this application. Mr. Chowdhury does not and cannot challenge the fact that now the decretal amount would belong to Ramesh, Gobinda Sachindra and Narayan in their personal capacity by reason of the deed of family settlement being upheld in a Court of law in the presence of all the necessary parties, namely, in the presence of all the sons of Haran, in the presence of the executors and in the presence of all the shebaits of the deity Anandmoyee Thakurani. His objection, however, is that it would be useless to transpose Gobinda and Sachindra to the category of appellants for if they are transposed to the category of appellants there would be a bar to the carriage of the appeal by them by reason of the fact that they had withdrawn the moneys which had been deposited by his clients towards the first and the second instalments, namely, the instalments of 1348 and 1349 B.S. It is, therefore, necessary to examine this contention. 4. The contention rests on the principle that a person who has taken the benefit of an order or decree of the Court cannot thereafter prefer an appeal. No doubt, the principle has been formulated in that broad way but the precise scope of the principle has been examined by Sir George Rankin C.J. and C.C. Ghose J. in Hurrybux Deora Vs. Johurmull Bhotoria and Another, AIR 1929 Cal 796 . In that case, the Assistant Referee reported to Court that the defendants were liable to pay to the plaintiff Rs. 38,918. On exceptions being taken to his report by the defendants, Page J, allowed certain of the exceptions and disallowed certain others. He found that the defendants were liable to pay to the plaintiff not Rs. 38,918 as reported by the Assistant Referee but the sum of Rupees 12,946. This sum was lying in Court and the plaintiff withdrew the sum under orders of Court. He found that the defendants were liable to pay to the plaintiff not Rs. 38,918 as reported by the Assistant Referee but the sum of Rupees 12,946. This sum was lying in Court and the plaintiff withdrew the sum under orders of Court. Thereafter, he preferred an appeal from the judgment of Page J., his point in appeal being that Page J. ought to have disallowed the exceptions which had been taken by the defendants to the Assistant Referee's report to Court and ought to have made the defendants liable for the whole sum of Rs. 38,918. A question was raised in the appeal as to whether the plaintiff could proceed on with the appeal in view of the fact that he had taken from Court the amount that had been decreed in his favour by Page J. This point was set down for hearing as a preliminary hearing, Rankin C.J. examined in detail all the cases and overruled the preliminary objection. At page 714 of the report he made the following observations: It appears to me that the English cases are clearly inapplicable except upon the basis that the defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the opposite party at whose instance the order was made. So far as the final decree in a suit is concerned there is no reason for saying that the plaintiff cannot approbate the decree in respect of the sum which it awards to him and reprobate it in respect of the sum which it refuses to him. The plaintiff in the present case was not awarded the sum which he has drawn out of Court as a term upon which the defendants were considered to be entitled to the dismissal of part of his claim. These observations are applicable to the case before us and relying on these observations, we overrule the contention of Mr. Chowdhury. If Gobinda and Sachindra be transposed to the category of appellants there would be no legal bar in their continuing the appeal on its merits. 5. We, therefore, allow the prayer which has been made in this application and transpose Gobinda and Sachindra as appellants. 6. In view of the deed of family settlement a decree must be passed in favour of Gobinda, Sachindra, Ramesh and Narayan in their personal capacity. 7. 5. We, therefore, allow the prayer which has been made in this application and transpose Gobinda and Sachindra as appellants. 6. In view of the deed of family settlement a decree must be passed in favour of Gobinda, Sachindra, Ramesh and Narayan in their personal capacity. 7. Ramesh has not appeared through an advocate but is present in Court and he agrees to the decree being passed in his favour jointly with his aforesaid brothers. 8. Narayan has appeared in this Court through an advocate but has appeared in his capacity as shebait. We asked his learned advocate whether he would have any objection to a joint decree being passed in his favour in his personal capacity. Mr. Bagchi who has appeared for him says that he has not the least objection. So far as the merits are concerned, we have already pointed out the nature of the evidence that was given by respondents 1 and 2 in support of their claim. That evidence, as we have already pointed out, is vague and is useless for the purpose of determining the number of instalments. 9. We think it desirable to state for the guidance of lower Courts generally that where instalments are prayed for by the debtors, the Court should see that the facts relating to means and circumstances of the debtor as also of the creditor are brought in before the Court. If a debtor simply says that he would not be able to pay money if a certain number of instalments is not granted to him that is not sufficient. Strictly speaking, it would be his own opinion and would not be admissible in evidence. On the evidence as it stands, we would have been bound to remand the case to the lower Court for the purpose of taking further evidence relevant to the question of instalments. The parties, however, realised that such a course would have meant further delay in the matter. We suggested to them that having regard to the amount of the decree it would be proper if without sending the case back to the lower Court, the balance of the decretal amount be paid in ten equal annual instalments. The parties appearing before us raised no objection to that course. 10. We suggested to them that having regard to the amount of the decree it would be proper if without sending the case back to the lower Court, the balance of the decretal amount be paid in ten equal annual instalments. The parties appearing before us raised no objection to that course. 10. For the purpose of avoiding a remand which would only mean delay, we direct that the balance of the decretal amount be paid in ten equal instalments, the next instalment to be paid within the month of Chaitra 1351 B.S. and the succeeding instalments within the month of chaitra of each succeeding year. To this extent and this extent only, the decree of the learned Judge below is modified. The decree which is to be drawn up in this Court, would be in favour of Ramesh, Gobinda, Sachindra and Narayan in their personal capacity. 11. The decree-holders, Ramesh, Gobinda, Narayan and Sachindra would be entitled to withdraw the amount that is now lying in Court as also the amounts that may be deposited later on by respondents 1 and 2 or their legal representatives in accordance with the shares as defined in the deed of family settlement dated the 20th September 1935. 12. There will be no order for costs in this appeal. Let the records be sent down to the lower Court without delay.