Sasadhar Ganguly vs Raghab Singh Pradhan and Another

Wort, J.—The parties to the appeal entered into a compromise and a compromise decree was passed on 26th March 1927, the terms of which were that the plaintiff who is the respondent before this Court would surrender certain lands and execute a conveyance and register the same within one week of the decree, and that the defendant appellant would within four months of such surrender and registration pay to the plaintiffs the sum of Rs. 1,075.

The appellant before us raised objections and they were based upon the fact that the plaintiff-respondent executed the conveyance on 8th April, which conveyance was registered on 9th April, and in fact was some 13 days after the decree and not seven days as agreed upon in the compromise. The appellant therefore contended that he was not liable to pay Rs. 1,075. The learned Munsiff overruled the objection. There was an appeal to the District Judge and the objection sufferred a like fate before that Court. I should say that the judgments both of the learned Munsiff and of the learned District Judge were based on the proposition that time was not the essence of the contract; and therefore there was no substance in the objection raised by the judgment-debtor.

The argument before this Court is that the effect of the judgments of the Courts below was that the consent decree had been varied as regards the time of performance and it is argued that the Court had no jurisdiction to vary or alter in any manner whatsoever a decree which has been, pronounced by reason of a compromise in the suit. The matter may be looked at in this way. In the case of Budhu Ahir Vs. Emperor, , Mookorjee, A.C.J., considered all the authorities and during the course of his judgment referred to the decision of Kay, L.J. in the case of Huddersfield Banking & Co. v. Lister [1895] 2 Ch. 273, Kay, L.J. laid down a proposition which, if I may say so, is well established that a consent decree or order is only the order of the Court carrying out the agreement between the parties and that "a consent order is a mere creature of the agreement" and no greater sanctity can be placed upon the decree than upon the agreement itself. That in substance is saying that a consent decree is a contract and must be construed accordingly. For this purpose we must consider the provisions of Section 55, Contract Act. Without setting out in detail the provisions of that section, it can be stated that in a matter like the present the question of whether the time was the essence of the contract would depend on the facts and circumstances of each case. In the case of Jamshed Khodaram v. Burjorji Khunjibhai AIR 1915 P.C. 83. Viscount Haldane delivering the judgment of the Judicial Committee of the Privy Council states that their Lordships did not think that section (i. e., Section 55, Contract Act,).

lays down any principle which differs from those which obtain under the law of England as regards contracts to sell land. Under that law equity, which governs the rights of the parties in cases of specific performance of contracts to sail real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should take place within a reasonable time.

It also stated in the course of that judgment that in order to consider in a contract of this kind whether time was the essence of contract.

the language or stipulation must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable.

On the authority of this decision I have no doubt in my mind that in this case the parties agreed and one of the terms of that agreement was that the plaintiffs were to surrender certain lands within seven days; but that term did not make time the essence of that agreement. If that be so, there can be no doubt that the decision of the Court below in this case is one which cannot be assailed. The learned advocate who appears on behalf of the appellant contends that this question of whether time was the essence of the contract was one which was to be considered not by the executing Court but by the Court who pronounced the decree. It is admittted on behalf of the appellant that had term of the compromise decree stated that this act to be done by the plaintiff was to be done within a reasonable time then that would have been a matter which the executing Court had jurisdiction to consider u/s 47, Civil P.C. Once having made that admission, it seems to me that the argument which he advances in this connexion must necessarily fail. I have pointed that in the case reported in Jamshed Khodaram v. Burjorji Khunjibhai AIR 1915 P.C. 83, the Judicial Committee stated that naming a specific time in a contract for sale of land is nothing more than provision which is tantamount to an agreement that the act shall be performed within a reasonable time. That, in my judgment, disposes of the argument which is advance in this connexion. There is no doubt in my mind that the executing Court had jurisdiction to consider this question; and having decided the first point against the appellant it seems to me that the appeal must fail.

In connexion with the last point advanced, the learned advocate relies upon the case of Maharana Shri Ranmalsangji Bhagwatsangji v. Bai Sri Kundankuwar [1902] 26 Bom. 707. That was a decree pronounced in an action in which the plaintiff the wife had recovered maintenance as against her husband. In the execution of that decree a question was raised as to whether the wife by her action had forfeited her right to maintenance and the Court held that that was a matter which the Court had no jurisdiction to enquire into, it seems to me for perfectly obvious reason, because it was in substance really trying the case over again. The case docs not assist the argument of the learned advocate in this connexion.

The appeal fails and must be dismissed with costs.

Kulwant Sahay, J.

I agree.