Appeals Nos 174 and 175 of 1967
Appeals by special leave from the judgment and order dated June 16 1966 of the Mysore High Court in exhibit Regular Appeals Nos
33 34 of 1961
VS Desai Naunit Lal and Swaranjit Sodhi for the appellant in both the appeals
DV Patel O P Malhotra P C Bhartari for the respondent in both the appeals
The Judgment of the Court was delivered by Mathew J
These two appeals by special leave are from the common judgment passed by High Court of Mysore on 16 6 1966 confirming the order of the District Court Bangalore allowing an application for execution of the compromise decree passed on 24 6 1959 in appeal from the decree in OS 85 of 1949 50 of that court
The appellant was the defendant in the suit and the respon dent the plaintiff
As matter in controversy between the parties in the appeal turns upon the construction of the compromise decree it is necessary to set out its terms  i The defendant agrees to receive from the plaintiff a lakh of rupees paid as consideration for the sale of the property No 44 Mahatma Gandhi Road Bangalore together with stamp charges of Rs 3300 rupees three thousand 517 and three hundred only with interest at six per cent per annum of the above two sums from 16 3 1947 up to date together with Rs 7000 rupees seven thousand only deducted by the Corporation minus the rent received viz Rs 22500 rupees twenty two thousand and five hundred only and give up all rights to the said property
The plaintiff will be entitled to the materials lying on the premises
iiThe period of time fixed for the payment by the plaintiff to the defendant of this amount stated above is till 1 1 1960
iiiThe plaintiff agrees to deposit the amount in court for payment to the defendant
ivOn failure of the plaintiff to deposit the amount in court by 1 1 1960 his suit now in appeal will be dismissed with costs throughout
v It is agreed by the parties that time is the essence of the contract and no further extension of time would be allowed and the dismissal of the suit with costs would be automatic
The respondent applied for challan on 22 12 1959 to deposit the amount and a challan was issued to him on 24 12 1959 the last working day before the court closed for Christmas holidays
December 31 1959 and January 1 1960 were holidays
Neither the lower courts nor the banks were open on these days
The respondent made the deposit on 2 1 1960 and sought to enforce his right under the decree by compelling the appellant to execute the conveyance in terms of the compromise decree by filing execution case No251960
The appellant also filed execution case No 45 of 1960 for cost on the basis that the suit stood dismissed as per the provision in the decree on the failure of the respondent to deposit the amount by 1 1 1960 These two petitions were heard together and the court passed an order holding that the respondent had made the deposit in substantial compliance with the decree and allowing execution case No 25 of 1960 and dismissing execution case No 45 of 1960
Against this order the appellant filed appeals 33 and 34 of 1960 before the High Court of Mysore
A Division Bench of the High Court by its judgment dated 16 6 1966 dismissed the appeals with costs
The short question for consideration in these appeals is whether the deposit made by the respondent on 2 1 1960 was within the time specified in the compromise decree and would 518 enable him to compel the appellant to execute the sale deed in accordance with the provisions of the compromise decree
It was argued on behalf of the appellant that the respondent had practically six month s time to deposit the amount that he should not have waited for the last day of the period allowed to him by the decree to deposit the amount and if he was not diligent to deposit the amount earlier he must suffer the consequences if the court happened to be closed on the last
day on which he should have made the deposit
Counsel said that there is a distinction between a case where under a decree an act has to be performed by a party on a day certain and a ease where the party has the liberty to perform the act within a certain time a certain day 
that in the former case if the act cannot be pet formed by reason of circumstances beyond his control he will be relieved against the consequences of his default by reason of the maxim Lexnon cogit ad impossibility the law does not cornpel a man to do that which he cannot possibly perform if he performs the act at the next available opportunity but where he has to per form an act within a certain period or by a certain date as in this case the law will not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period
Whether there is any logical or reasonable basis for making the distinction we clear that in this case the respondent had the right or perhaps more accurately the liberty to deposit the amount in court till and including 1 1 196O
In Halsbury s Laws of England vol
37 3rd Edition page 96 it is observed Subject to certain exceptions the general rule is that when an let may be done or a benefit enjoyed benefit enjoyed upto the last moment of the last of that period
 if the respondent had the right or liberty to deposit the amount III court on 1 1 1960 under the compromise decree the fact that he did not choose Lo make the deposit earlier would not affect his right or liberty to deposit the amount in court on 1 1 1960
In Fateh Khan and another vs Chhajju and others1 an argument similar to the one addressed by counsel for the appellant was advanced but was not countenanced by the court
That was a case where a pre emptor was unable to deposit the purchase money in court on the last day of the period allowed by the decree the period expired when the court was closed for the vacation and he deposited the amount on the reopening day
It was argued that the decree allowed the preemptor a period of time within which to deposit the amount that he could have deposited 1 AIR 1931 Lahore 386
519 the amount earlier that he should not have waited till the last day of the period and that if the last day happened to be a holiday he can take no advantage of that circumstance
The court repelled the argument by saying that if the argument is accepted it will have the effect of curtailing the days allowed to him by the decree without any reason
It was next contended for the appellant that it was open to the respondent to pay the amount to the appellant either on December 31 1959 or January 1 1960 and that he should not have waited till the 2nd to deposit the amount in court
Counsel submitted that under Order XXI Rule 1 the respondent could have paid the amount to the appellant on January 1 1960 or earlier that he should not have waited till the 2nd to deposit the amount in court and if the last day of the period happened to be a day on which the court was closed that is not a circumstance which would relieve the respondent from his obligation to pay the amount within the time specified
In support of this argument counsel referred to Kunj Bihari and others vs Bindeshri Prasad and others1 Roshan Lal vs Ganpat Lal 2 Indal vs Chaudhary Ram Nidh3 and Ram Kinkar Singh and another vs Smt
Kamal Basini Devi4 Kunj Behari and others vs Bindeshri Prasad and others1 was a case where an installment decree provided that the first installment was payable on a certain date the date specified expired during the vacation of the court and the amount was deposited in court on the re opening day
It was held that the judgment debtors had the power to make the payment direct to the decree holder that depositing in court was not the only course open to them and so they could not take advantage of the fact that the court was closed on the specified date and the payment made by them was not made in time
The other cases cited are to the same effect
The Principle underlying these decisions is that when the judgment debtor has the option to pay the decree amount to the decree holder or to deposit it in court he cannot choose one of them and act in a manner so as to prejudice the rights of the other party
Although under Order XXI Rule 1
it is open to a judgment debtor to pay the amount direct to the decree holder or to deposit in court he cannot choose the alternative when that will prejudice the decree holder
Even here there is a conflict of opinion among the High Courts
In Chatlapali Suryaprakasa Rao vs Polisetti Venkataratnam and others5 the compromise decree there in question provided that the decretal amount should be paid in certain yearly 1 ILR Vol
51 1929 Allahabad 527
2 AIR 1938 Allahabad 199 3 AIR 33 1946 Oudh 156
4 AIR 1938 Patna 451
5 AIR 1938 Madras 523
520 instalment on certain fixed date in each year
The decree further provided that in case of default of two successive instalments the whole amount would be recovered
The decree however did not provide to whom the money was to be paid
The judgment debtor failed to pay the first instalment
On a day previous to that on which the second instalment was due he obtained a challan
The day on which the instalment was due being a holiday he paid the instalment next day in the Bank
It was held by the Madras High Court that the judgment debtor did not commit default in payment of the second instalment and consequently there was no default of two successive instalments
This is also the view that was taken in Premchand Bhikabhai vs Ramdeo Sukdeo Marwadi1
It is not necessary to resolve the conflict of opinion on this aspect as we are concerned with a decree which specifically provided that the respondent should deposit the amount in court
He had therefore no option to pay the same to the appellant and the appellant perhaps would have been within his right if he refused a tender of the amount to him
Ile parties for obvious reasons agreed that the amount should be deposited in court and that was made a rule of the court and therefore the principle of the decision in Kunj Behari and others vs Bindeshri Prasad and others and the other cases cannot be applied here
The question then arises as to what is the principle which should be applied in a case where a party to a consent decree is given time to do an act within a specified day or by a specified lay and fails to do it on the ground of impossibility of performance on the last day specified but does it on the next practicable day
This question arose for consideration in Muhammad Jan vs Chiam Lal2
There a decree in a pre emption suit gave the plaintiff a period of one month within which to deposit the purchase money in order to obtain the benefit of the decree in his favour and the period expired on a date on which the court Was closed for the vacation and the plaintiff made the deposit on the day on which the court re opened
Piggott Lindsay and Sulaiman JJ
held that the deposit was in time under the terms of the decree
They said that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day not by an act of their own but by the court itself are entitled to do it at the first subsequent opportunity
The court quoted with approval the decision in Shooshee Bhusan Rudro and another vs Gobind Chunder Roy3 where it was observed that the broad principle is that although the parties themselves cannot extend the time for doing an act in court yet 1 AIR 36 1949 Nagpur 141
2 ILR Allahabad Series Vol
XLVI 1924 p 328
3 ILR Calcutta Vol XVIII 1891 p 231
521 If the delay is caused not by any act of their own but by some act of the court itself such as the fact of the court being closed they are entitled to do the act on the first opening day
In Satnbasiva Chari vs Ramasami Reddi1 the Madras High Court held that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day not by any act of their own but by the court itself are entitled to do it at the first subsequent opportunity
We have already referred to Fateh Khan and another vs Chhajju and others where the Lahore High Court applied this principle to a pre emption decree
Mayor vs Harding2 is a case in point
In that case the appellant had applied to justices to state a case under the Summary Jurisdiction Act 1857
He received the case from them on Good Friday and transmitted it to the proper court on the following Wednesday
It was held that he had complied sufficiently with the requirement of the Act directing him to transmit the case within three days after receiving it as it was impossible for him to transmit the case earlier than he did because of the closure of the offices of the court from Friday till Wednesday
Mellor J dealt with the matter as follows  Here it was impossible for the appellant to lodge his case within three days after he received it
As regards the conduct of the parties themselves it is a condition precedent
But this term is sometimes used rather loosely
I think it cannot be considered strictly a condition precedent where it is impossible of performance in consequence of the offices of the court being closed and there being no one to receive the case
The appellant lodge the case on Wednesday that is he did all that it was practicable for him to do In Halsbury s Laws of England Vol 37 3rd Edition page 97 para 172 it is observed  172
The fact that the last day of a prescribed period is a Sunday or other non juridical day does not as a general rule give the person who is called upon to Act an extra day it is no excuse for his omission to do the act on some prior day
This general rule does not hold good where the effect of it would be Lo render performance of the act impossible
This would be the case if the whole of the prescribed period consisted of holidays in Which case the act may lawfully be done on the next possible day
1 ILR 22 Madras 1899 p 179 2 522 Again the general rule does not hold good where the last day is a Sunday and the act be done is one the performance of which on a Sunday is prohibited by the Sunday Observance Act 1677 or where the act has to be done not by the party only but by the court or by the party in conjunction with the court
In such cases the act may when the last day limited for the performance of it happens to be a day when the court or its office is closed be done on the next practicable day
 We think that the second exception to the general rule stated in the passage and in effect followed in the rulings cited above must apply to the facts here
But counsel for the appellant argued that the compromise decree provided that on default of the respondent to deposit the amount in court on 1 1 1960 there was to be an automatic dismissal of the suit by virtue of clause v thereof and the execution court had no right to alter or modify the terms of the decree and hold that the deposit made on 2 1 1960 shall be deemed to be a deposit made on 1 1 1960 and order the execution of the decree on that basis
A court executing the decree shall execute it as it stands
It cannot modify or vary the terms of the decree
No exception can be taken to that general principle
But the execution court has the right to construe a decree in the light of the applicable provisions of law and if in this case on a construction of the decree in the light of the applicable provision of law it found that the deposit made by the respondent on 2 1 1960 was according to law a deposit in compliance with the terms of the decree then the execution court was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law
Counsel then contended that a compromise decree is none the less a contract notwithstanding the fact that an order of court is super added to it and a provision in a contract that an act shall be done within a certain period or by a particular day by a party is absolute
In other words counsel said that duties are either imposed by law or undertaken by contract and the ordinary rule of law is that when the law creates a duty and a party is disabled from performing it without any default of his own the law excuses him but when a party by his own contract imposes a duty upon himself he is bound to make it good not withstanding any accident by inevitable necessity 
Counsel in this connection referred to the passage in Halsbury s Law  of England Volume XIV page 622 para 151 which reads as under 523  1151
Where under a contract conveyance or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner or a stated time the act must be performed accordingly in order to obtain the enjoyment of the right and in the absence of fraud accident or surprise equity will not relieve against a breach of the terms
Although a contract is not the less a contract because it is embodied in a judge s order or as said by Parke J in Went worth vs Bullen1 B  C 840 850 the contract of the parties is not the less a contract and subject to the incidents of a contract
because there is super added the command of a judge
still we think it is something more than a contract
The Judicial Committee of the Privy Council in Charles Hubert Kinch vs Edward Keith Walcott and others 2 observed  An order by consent not discharged by mutual agreement and remaining unreduced is as effective as an order of the court made otherwise than by consent and not discharged on appeal
A party bound by a consent order must when once it has been completed obey it unless and until he can get it set aside in proceedings duly constituted for the purpose
The only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is s et aside by another order of the court  the second stands unless and until it is discharged on appeal
 In Govind Waman vs Murlidhar Shrinivas and others3 the Bombay High Court held that a consent decree passed by a court of competent jurisdiction cannot be treated on the same footing as a contract between the parties that although it is true that before a court passes a consent decree it can and should examine the lawfulness and validity of the terms of the proposed compromise but when once that stage is passed and a decree follows different considerations arise and therefore where I compromise decree contains a term against alienating certain property and gives the other party right to its possession on such alienation the decree is not a nullity in spite of the fact that the term is opposed to section 10 TP Act
And the fact that it is contrary to law would not affect its binding character unless it is set aside by taking proper proceedings
That different conside 1 English Law Reports 2 AIR 1929 journal  Privy Council P 289
3 AIR 1953 Bombay 412
524 ration would apply when a contract is embodied in a judge s order is also clear from Morris vs Barret1
In that case by a consent order it was provided that upon payment of 341
 the debt and costs as agreed in installments on the 28th of May on the 25th of June and on the 25th of every succeeding month until the whole is paid all further proceedings in the cause be stayed
The order further provided that in case default be made in any payment as aforesaid the plaintiff be at liberty to sign final judgment for the said sum of 341 and issue execution for the amount unpaid
The first and two following installments were duly paid
The 25th of October the day on which the fourth installment became payable being a Sunday the defendant called at the office of the planitiff s attorney on Monday the 26th and offered to pay it but was told he was too late and that judgment had been signed
No judgment however was signed until the following morning
The defendant took out a summons to set aside the judgment on the round that under the circumstances he had the whole of Monday to pay the money and that the judgment signed after the money was offered was irregular
The court held that the defendant had the whole of Monday to pay the money
One of the arguments advanced in that case was that as the judge s order was a consent order the principle governing contract must regulate the rights of parties and therefore the defendant was not excused from performing the contract by the accident of the day being a Sunday
In repelling this contention Erle CJ said  I desire not to be understood as giving any decision as to the rights of parties under a contract  but in arriving at the conclusion I come to I seek only to give effect to the duty which the law imposes upon a party who is directed by a judge s order to pay money
The defendant was ready and offered to pay it on Monday but the plaintiff conceiving that the offer came too late
declined to receive it and on the following day signed the judgment for the balance due
Confining myself to the judge s order and the remedy and duty thereon and to what ought to be the fair meaning and understanding of the instrument I find no authority for saying that the defendant was bound to search for his creditor and pay him the money on the Sunday
 Crowder J said  This is not like the case of an ordinary contract and I de sire not to be understood as at all interfering 1 English Law Reports 141 p 768
525 with any of the cases which have been referred to with reference to contracts
The cases upon the construction of statutes are also founded upon an entirely different consideration
 We may also state that there is no evidence in this case that at the time when the compromise was entered into either of the parties knew that the 31st of December 1959 and the 1st of January 1960 would be holidays
In these circumstances we think that the deposit made by the respondent on 2 1 1960 was in substance and in effect a deposit made in terms of the compromise decree and that the High Court was right in its conclusion
We dismiss the appeals but in the circumstances without any order as to costs
KBN Appeals dismissed


Summary:
Under a compromise decree the respondent plaintiff agreed to deposit in court the sale amount by January 1 1960
December 31 1959 and January 1 1960 were holidays
The respondent made the deposit on January 2 1960 and sought to enforce his right under the decree compelling the appellant defendant to execute the conveyance
The appellant filed execution for cost on the basis that the suit stood dismissed as per the provision in the compromise decree on the failure of the respondent lo deposit the amount by January 1 1960
 The Court held that the respondent had made the deposit in substantial compliance with the decree
appeals against this order were also dismissed
In appeals to this Court it was contended i where a party had to perform an act within a certain of by a certain date the law would not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period ii the executing court had no right to alter or modify the terms of the decree and hold that the deposit made on January 2 1960 had to be deemed to be a deposit made on January 1 1960 and iii a compromise decree was a contract notwithstanding the fact that an order of court was superadded to it and a provision in a contract that an act had to be done within a certain period or by a particular day by a party was absolute dismissing the appeal
HELD  i The respondent had the right or the liberty to deposit the amount in court till and including January 1 1960
That being so the fact that be did not choose to make the deposit earlier would not affect his right or liberty to deposit the amount in court on January 1 1960
518 F G Halsbury vol
37 3rd Edn
p 96 Fateh Khan vs Chhajju  Ors AIR 1931 Lah 386 referred to
It is a generally recognised principle of law that parties who are prevented from doing a thing in court on particular day not by an act of their own but by the court itself are entitled to do it at the first subsequent opportunity
520 G Halsbury Vol
37 3rd Ed
p 97 para 172 Muhammad Jan vs Shiam Lal ILR XLVI All 328 1924 Shooshee Bushan Rtidro vs Gobind Chander Roy ILR Cal
XVIII 1891 231 Sambasiva Chari vs Ramasaini Reddi ILR 22 Mad
1899 179 and Mayor vs Harding  referred to
The present case is concerned with a decree which specifically provided that the respondent should deposit the amount in court
He had therefore no option to pay the same to the appellant 520 C D Kunj Bihari vs Bitndeshri Prasad ILR vol
51 1929 All
527 Roshan Lal vs Ganpat Lal
AIR 1938 All
 Indal vs Chaudhary 516 Ram Nidh AIR 33 1946 oudh
156 and Rain Kinkar Singh V Smt
Kamal Basini Devi AIR 1938 Pat 451 distinguished
Chatlapali Suryaprakasa Rao vs Polisetti Venkataratnam AIR 1938 Mad
523 referred to
iiThe executing court has the right to construe the decree in the light of the applicable provisions of law If in this case on such a construction
the court found that the deposit made by the respondent on January 2 1960 was according to law a deposit in compliance with the terms of the decree then the executing court was not varying the terms of the decree but executing the decree as it stood
522 E iiiAlthough a contract is not the less a contract because it is embodied in a Judge s order it is something more than a contract
Different considerations would apply when a contract is embodied in a Judge   order 523 C Wentworth vs Bullen ELR 141 769 Charles Hubert Kinch vs Fdward Keith Walcott AIR 1929 Journal  PC 289 Govind waman vs Murlidhar Shrinivas AIR 1953 Bom 412 and Morris vs Barret EIR 141 768 referred to