Case: C. F. Angadi Vs. Y. S. Mrannayya

2. The appellant was the defendant in the suit and the respondent 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.3,300/- (rupees three thousand and three hundred only) with interest at six per cent per annum of the above two sums from 10-3-1947 up-to-date together with Rs.7,000/- (rupees seven thousand only) deducted by the Corporation minus the rent received viz. Rs.22,500/- (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(ii) The period of time fixed for the payment by the plaintiff to the defendant of this amount stated above is till 1-1-1960(iii) The plaintiff agrees to deposit the amount in court for payment to the defendant(iv) On 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 automatic3. 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 No. 25/1960. 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.

Reasoning: 10. 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 law12. Although a contract is not the less a contract because it is embodied in a Judges order, or, as said by Parke J., in Wentworthv. Bullen (1829) 9 B. and C. 840, 850 = 109 ER313 "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 contract13. The Judicial Committee of the Privy Council ins Hubert Kinch v. Edward Keith Walcott, AIR 1929 PC289, 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 set aside by another order of the Court; the second stands unless and until it is discharged on appeal."In Govind Waman v. Murlidhar Shrinivas, AIR 1953 Bom 412  , 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 a 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 T.P. 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 consideration would apply when a contract is embodied in a judges order is also clear froms v. Barret, (1859) 141 ER768. In that case by a consent order it was provided that upon payment of 341, the debt and costs as agreed, in instalments 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 instalments were duly paid. The 25th of October, the day on which the fourth instalment became payable, being a Sunday, the defendant called at the office of the plaintiffs 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 ground 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 judges 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 C. J., 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 judges 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 judges 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 desire not to be understood as at all interfering 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."14. 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 or the 1st of January, 1960, would be holidays.