# C. F. ANGADI v. Y. S. HIRANNAYYA

- **Citation:** [1972] 2 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 1971-11-23
- **Bench:** C. A. Vaidjalingam, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-f-angadi-v-y-s-hirannayya-5672
- **Pages:** 11

## Headnote

515
Co1npromise decree-Party to decree given time to do an act within a
specified period or by a sptcifid day-Party failing to do it on tlle
ground of impossibility of performance on the la.>t day specified-Principles
to be applied-Compromise decree, construction of according to lawDoes not amount to varying of decree-Decree though in the nature of
conJrgct, different consideration apply when embodied in Judge's order.
Under a compromise decree the respondent plaintiff agreed to deposit
in court the sale amount by January I, 1960. December 31, 1959 am>
January 1 1960 were holidays. The respondent made the de;ro•it on
Jwuary 2: 1960 and sought to enforce his right under the decree compcllin1 the appellant defendant to e_xecutc the co!'veyance .. 'f?e appellant
filed execution for cost on the basL~ that the suit stood d1sm1ss_ed as per
the provision in the compromise decree on the failure of the respondent
to deposit the amount by January I , 1960. The Court held that the respondent had made the deposit in substantial compliance with tho decree.
•ppeals against this order were :tlso dismissed.
In appeals. to. this Court
it was contended (1) where a party had to perform an act w1thm a certain
p.eriod of by a certain date the law would not talre notice of the circumstance that the act became incapable of performance by reason of circumstances beyond hi• control on the last day of the period; (ii) the executing
court bad no riiiht to alter or modify the terms of the decree and hold that
the deposit made on January 2, 1960 had to be deemed to he a deposit
made on January I, 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 wa-; absolute dismis&ing 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
hi& right or liberty to <foposit the amount in court on January I, 1960.
[518 F-GJ
Halsbury vol. 37 3rd Edn. p. 96; Fc.'teh Khan v. Chlrniiu & Ors .•
A .l.R. 1931 Lab. 386, referred to.
It is a generally reco&nised principle of law that parties who are prevw.ted from doing a thini 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 sub•eG
quent opportunity. [520 .G]
H
Halsbury Vol. 37, 3rd Ed. p. 97, para 172, Muhammad Jan v. Shiam
T.al; I.LR. XLVJ All. 328 (1924); Shoo.,hee BushGn Rudro v. Gohind
Chander Ray, I.LR. Cal. Vol. XVIII (1891) 231. Samba.<iva Chari v.
Ramasami Red.ii. !.L.R. 22 Mad. (1899) 179 and Mayor v.
Harding,
!1867] 2 Q.B. 410, 'referred to.
. The present case is concerned with a decree which
specificailv
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]
Kuni Bihari v. Bindeshri Prasad, I.L.R. vol. 51, 1929. All. 527,
Roshan Lal v.
Ganpat Lal. A.l.R.
1938 AIL,
Indal
v.
Chaudhary
516
SUPREME COURT REPORTS
[1972] 2 S.C.R.
Ram Nidlt, A.1.R. 33 (1946] Ouclh. 156 and Ram Kinkar Singh v. ~mt.
Kamal Basini Devi, A.LR. 1938 Pat.. 451, distinguished.
l'hatlapali
Suryaprakasa
Rao v. Poliserti
VenkG.taratnam,
A.I.R.
I 938 Mad. 523, referred to.
(ii) The executing court has the right to construe the
decre< 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 accordigg to law a deposit in compliance with the
terms of the decree, then, the executing court was not varying the terms
of th~ l.!·~crcc but r.:xcC'uting the decree as it stood. [.522 E]
(iii) Although a contract is not the less a contract because it is em·
hodied in a Judge's order; it is something more than a contract. Different
considerations would apply

## Text

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C. F. ANGADI
v.
Y. S. HIRANNAYYA
November 23, 1971
[C. A. VAIDJALINGAM AND K. K. MATHEW, JJ.)
515
Co1npromise decree-Party to decree given time to do an act within a
specified period or by a sptcifid day-Party failing to do it on tlle
ground of impossibility of performance on the la.>t day specified-Principles
to be applied-Compromise decree, construction of according to lawDoes not amount to varying of decree-Decree though in the nature of
conJrgct, different consideration apply when embodied in Judge's order.
Under a compromise decree the respondent plaintiff agreed to deposit
in court the sale amount by January I, 1960. December 31, 1959 am>
January 1 1960 were holidays. The respondent made the de;ro•it on
Jwuary 2: 1960 and sought to enforce his right under the decree compcllin1 the appellant defendant to e_xecutc the co!'veyance .. 'f?e appellant
filed execution for cost on the basL~ that the suit stood d1sm1ss_ed as per
the provision in the compromise decree on the failure of the respondent
to deposit the amount by January I , 1960. The Court held that the respondent had made the deposit in substantial compliance with tho decree.
•ppeals against this order were :tlso dismissed.
In appeals. to. this Court
it was contended (1) where a party had to perform an act w1thm a certain
p.eriod of by a certain date the law would not talre notice of the circumstance that the act became incapable of performance by reason of circumstances beyond hi• control on the last day of the period; (ii) the executing
court bad no riiiht to alter or modify the terms of the decree and hold that
the deposit made on January 2, 1960 had to be deemed to he a deposit
made on January I, 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 wa-; absolute dismis&ing 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
hi& right or liberty to <foposit the amount in court on January I, 1960.
[518 F-GJ
Halsbury vol. 37 3rd Edn. p. 96; Fc.'teh Khan v. Chlrniiu & Ors .•
A .l.R. 1931 Lab. 386, referred to.
It is a generally reco&nised principle of law that parties who are prevw.ted from doing a thini 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 sub•eG
quent opportunity. [520 .G]
H
Halsbury Vol. 37, 3rd Ed. p. 97, para 172, Muhammad Jan v. Shiam
T.al; I.LR. XLVJ All. 328 (1924); Shoo.,hee BushGn Rudro v. Gohind
Chander Ray, I.LR. Cal. Vol. XVIII (1891) 231. Samba.<iva Chari v.
Ramasami Red.ii. !.L.R. 22 Mad. (1899) 179 and Mayor v.
Harding,
!1867] 2 Q.B. 410, 'referred to.
. The present case is concerned with a decree which
specificailv
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]
Kuni Bihari v. Bindeshri Prasad, I.L.R. vol. 51, 1929. All. 527,
Roshan Lal v.
Ganpat Lal. A.l.R.
1938 AIL,
Indal
v.
Chaudhary
516
SUPREME COURT REPORTS
[1972] 2 S.C.R.
Ram Nidlt, A.1.R. 33 (1946] Ouclh. 156 and Ram Kinkar Singh v. ~mt.
Kamal Basini Devi, A.LR. 1938 Pat.. 451, distinguished.
l'hatlapali
Suryaprakasa
Rao v. Poliserti
VenkG.taratnam,
A.I.R.
I 938 Mad. 523, referred to.
(ii) The executing court has the right to construe the
decre< 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 accordigg to law a deposit in compliance with the
terms of the decree, then, the executing court was not varying the terms
of th~ l.!·~crcc but r.:xcC'uting the decree as it stood. [.522 E]
(iii) Although a contract is not the less a contract because it is em·
hodied in a Judge's order; it is something more than a contract. Different
considerations would apply when a
contract is
embodied in a Judge's
••rdcr [523 CJ
We111worth v. Bullen,
E.LR. 141 769, Charles
H"bert
Kinclz v.
lldward Keitlz Walcott, A.I.R. 1929 Journal
& P.C.
289.
Govind
~Vaman v. f\,f11rlidh:1r Shrinivas, A.LR, 1953 Born. 412 and Morris v.
/J<;rret, E:L.R. 141, 768, referred to.
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C1v1L APPELLATE JURISDICTION :
Civil Appeals Nos. J 74
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and 175 of 1967.
Appeais by special leave from the judgment and order dated
June 16, 1966 of the Mysore High Court in Ex. Regular Appeals
Nos. 33-34 of 1961.
V, S. Desai, Naunit Lal and Swaranjit Sodhi, for the appellant
E
(in both the appeals).
D. V. Patel, 0. 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 comnllrn judgment passed by High Court of Mysore on
16-6-1966 confir!}1ing 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 O.S.
85
of
1949-50 of that court.
The appellant was the defendant in the suit .and the resoondent the plaintiff,
As 1ualter in controversy between the parties
in the appeal tnrns 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
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c. F. ANGADl v. Y. s. HlRANNAYYA (Mathew, J.)
511
and thr.ee 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 vi:., 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 l-!-1960.
(iii) The pbin!iff agrees to deposit the amount in
court for payment to the defondant.
(iv) On failure of the plaintiff to deposit the amount
in court by 1- l-l 960 his suit now in appeal will
be dismissed with costs throughout.
( v) It is agreed by tht: 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 holidavs.
December 3 l, 1959 and January 1, 1960, were holidays. Neither
I he 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
F ·
the conveycncc in .terms of the compromise
decree
by filing
l'.Xecution case NJ. 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 lhe amount by 1-1-1960.
These two peti1ions were heard together. and the court passed an order holding
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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
I 960.
Against
this order. the appellant filed appeals 33 and 34 of I 960 before
the High Court of Mysore.
A Division Bench of the High Court,
by its judgment dated ! 6-6- l 966. dismissed the
appeals
with
costs.
TI1c shnn 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
SUPREME COURT REPORTS
fl 972] 2 S.C.R.
enabl.e 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
A
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 dili- - 8
gent to deposit the amount earlier, he must suffer the consequ~ 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 case where the
party has the liberty to perform tbe act within a certain time or
by a certain day; that in the former case, if the act cannot be
performed by reason of circumstances beyond his control, he will
be relievea against the consequences of his default by reai;on of
the maxim 'lex non cog it ad impossibilia (the law does not compel a -man to do that which he cannot possibly perform) if he
perlorms the act at the next available opportunity, but where he
has to perform an act within a certain period or by a certain date.
a~ in this case, the law will not take notioe of the circumstance
that the act became incapable of performance by reason of circWIUitllnce8 beyond his control on the last day of the period.
Whether there is any logical or reasonable basis for making the
dimnction, we are clear that in thi3 case the respondent had the
right or, perhaps, more accurately, the liberty to deposit the
amount in court till and including
1-1-1960.
In
Halsbury's
Lawli of England, vol. 37, 3rd Edition, page 96, it is observed :
"Subject to certain exceptions, the general rule is
that, when an act may be done or a benefit enjoyed
during a certain periOd, the act may be done or the
benefit (llljoyed upto the last moment of the last day of
that period."
-
If the respondent had the right or liberty to deposit the amount in
court on 1-1-1960 under the compromise decree the fact that he
did not choose to make the deposit earlier would not affect his
right or liberty to deposit the amount in court on 1-1-1960.
l n
Fateh Khan and another v. Chhajju anti others(1). an argument
similar to the one addressed by counsel for the appellant wa•
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
deocee; the period expired when the court was closed for the vac11tion and he deposited the amount on the re-opening day.
It was
argued that the decree allowed the pre-emptor a period of time
within which to deposit the amount, that he could have deposited
0) A.1.R. 1931 Lahore 386.
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·c. F. ANGADI v. Y. s. HIRANNAYYA (Mathew, J.)
519
the amount earlier, that he should not have waited till the las!
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 "~thout any reason.
It was next contended for the appellant that it was open to
the respondent to pay the amount to the appell:\Ot either on
December 31, 1959, or January l, 1960, and that he should not
h11.vc waited till the 2nd to deposit the amount in court. Counsel
submitted that under Order XXI Ruic 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 d~it
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 v. Bindeshri Prasad
and others('), Roshan Lal v. Ganpat T.,a/( 2 ), Indal v. Chaudh'lrr
Rlflft Nidh('). and Ram Kinkar Singh and another v. Sm'. Kamal
Ba&ini Devi('), Kunj Behari and others v. Bindeshri Prasad and
oth~rs( 1 ) was a case where an instalment decree provided that the
first instalment was payable on '! certain date; the date specified
expired during the vacation of the court and the amount was
deposited in cou1t on the re-opening day. It was held that the
j11dgment 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 ill open to a judgment debtor to pay the amount direct to the
decree holder or to deposit 'in court, he cannot ch<>Ose the alternative when that will prejudice the decree holder.
Even here there is a conflict of opinion
amon)!
the High
Courts.
In Chat/apali Suryaprakasa Rall v.
Po/isetti Venkatarlflnam and others('), the compromise decree there in questioo
p1ovided that the decretal amount should be paid in certain yearly
ii) 1.1..R. Vol.<!. 1929 Allalub,d 527.
(J) A.1.R. (J'l 1946 Oudh 156.
i') A.1.R. 1938 Madras 521.
(2) A.1.R. 1938 Al!ahaba<l\<14
(4) A.I.R. 1938 Patna 451.
520
SUPREME COURT REPORTS
[1972] 2 S.C.R
instalment on certain fixed date in each year.
The decree furtber provided that in case of default of two successive instalments
tbe whole amount would be recovered.
The decree however did
not provide to whom th"' 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
cballan.
The day on which the instalment was due being a holiday, he paid the ir;stalment 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 v. Ramdeo Sukdeo Marwadi(').
It is not necessary to resolve the conflict of opinion on this aspect; as we are concerned with a decree
which ~pecifically 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.
The
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
v. 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
day and fails to do it on tile 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
v.
Chiam Lal('). 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 wa~
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 term> of the
decree.
They said that there is a gepera)ly recognised principle
of Jaw 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 Shoosh~e
JJhusan Rudro and an?ther v. Gobind Chunder Roy(') where it
was observed that the broad principle is that although the parties
themselves Cimnot extend the time for doing an ~ct in court, yet
(1) A.I.R. (36) 1949 Nagpur 141.
(2) J.L.R. Allahabad Series, Vol. XLVI, 1924, p. 328.
(3) J.L.R. Calcutta, Vol. XVIII (1891) p. 231.
.
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(', F .. \t-.liADI \', '. s. lllRANNA \'l'A ( 1V/111/inv, J. J
521
1f the delay is caused not by any act of their own, ilut by some
act of the court itself-such as the fact of !lie court being closcdthcy arc cn111icd
to do the act on the Jirst
op~riing duy.
In
Sambasira Chari v. Ram.,sami R1•ddi( 1 ). the Madrns High Courl
held 1h:1t th~rc is a ~cncrally recognised principle or law under
which parties who :ire prevented from doing a thing in court on
a parlicular day, not by any act of their own, but by the court
iL~elf, are entitled to llo it at the first
subsequent opportunity.
We have already referred to Fateh Kharj and an.other v. Chhaij11
a11d 01/Jers where the L1hore High Court applied this principle to
a pre-emption decree.
Mayor v. Harding(') is a case in point.
In that case the appeUant had applied to justices to state a case
m1dcr 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 ho 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 thi> 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 'here 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 tile person who is called upon to
Act c.n 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 wou.ld be to render perfonnance of tile act
i:npossibl~. 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.
(l) l.L.R. 22 Madras (1899) p. 179
(2) [1867] 2 Q,B, 410.
5°2
SUPREME COURT REPORTS
(1972) 2 S.C.R.
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
ca'>eS 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 mTMt
apply to the facts here.
But COL1nsel for the appellant argued that the compromi!e
decree provided that on default of the respondent to deposit the
amount in court on 1-1-1960, .there was to be an automatic dil!-
missal 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
:ind 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 :he 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
10 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.
Coumel 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 Jaw excuses him, but when a party by his own contract
impo~s a duty upon himself, he is bound to make it good notwithstanding any accident by inevitable necessity.
Counsel in
this connection referred to the passage in Halsbury's Laws of
England Volume XIV, page 622, para 1151, which reads as
under:
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c. F. ANGADI v. Y. s. HIRANNA\'YA (Mathew, J.)
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 tho enjoyment of the right, and in the
absence of fraud, accident or surprise, equity will not
.relieve ag~inst 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 Wentworth v. Bullen(') B. cfc C. 840, 850 "the contract of tho partias
is not the less a contract, and subject to the incidents of a co•-
tract, because there is super-added the command of a
jud!je'',
still we think it is something more than a contract.
The Judicial Committee of the Privy Co11ncil
in
Charles
Hubert Kinch v. Edward Keith Wmcott and others(") observed:
"An order by consent, not discharged by mutual
agreement and remaining i.nreduced 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 ho 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 and others(1 ), the
Bmnbay High Court held that a consent decree passed by a
court of competent jurisdiction cannot be treated on tho 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
exaniine the lawfulness and validity of the terms of the prOJ)08ed
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 ~uch
alierratio,n, the decree is not a nullity in spite of the fact that the
term is opposed to S. 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 conside-
(1) English Law Repqrts, 141, P. 769.
(2) A.I.R.
1929 Joum•l & Privy Council,
P.
289.
(3) A.I.R. 1953 Bombay 412.
°524
SUPREME COURT REPORTS
[1972] 2 s.c.R.
ration would apply when a contract is embodied in
a judge's
-0rder is also clear from Morri$ v. Barret (1).
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 instalment~
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 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 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 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, C.J. said :-
"I desire not to be understood as giving any deci·
sion 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 1 ate. declined to receive it, and on
the following day signed the judgment for the balance
due.
Confining myself to the judge's order and tile
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;
A
B
c
D
E
F
G
and I desire not to be understood as at all interfering
H
(I) English Lnw Reports 141, P. 768.
c. F. ANGADI v. Y. s. HIRANNAYYA (Mathew, J.)
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
m.ade 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.
K.B.N.
Appeals dismissed.
•
3--L643SupCI/72