KANDARPA NAG Vs. BANWARI LAL NAG

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession of land upon declaration of title. The disputed property belonged to one Dina Nath Nag who left four sons, Kandarpa Nag (the plaintiff), Banwari Lal Nag (the first defendant), pasupati Nag (the second defendant) and Sasi Bhusan Nag, since decayed. The third and fourth defendants hold a decree for money against the Nag brothers and in execution thereof purchased the property at an auction-sale hold in 1911. The case for the plaintiff is that, as the ancsstral homestead of the Nags was situated on the property sold, the execution-purchasers agreed, on their request, to reconvey the pro-party to them upon payment of Rs. 250 and costs incidental to the sale, but that the first two defendants, his brothers, fraudulently took a conveyance on the 9th September 1913, in their memes alone. The plaintiff accordingly prayed that his brothers might be directed to transfer to him his one-fourth Dhare upon receipt of a proportionate amount of the purchase-money. The Nag defendants repudiated the claim as unfounded. Daring the pendency of the trial in the court of first instance, the plaintiff and his brothers arrived at a settlement on the 22nd Marsh 1916. The terms of the compromise were, that the plaintiff would get a decree declaring his title to the one-fourth share; that the plaintiff would pay to his brothers in two instalments Rs. 195 as the value of the share as also the amount of the costs of the suit that the first instalment of Rs. ICO would be paid on the 2 1st April 1916; that the second instalment of RB. 95 would be paid on the 21st May 1916, and that if payment was right made on the due dates, the defendants would become owners of the entire property, The petition of compromise was filed in court on the same date and a preliminary decree was made thereon by consent of parties., No money, however, was paid by the plaintiff on either of the dates mentioned, but on the 22nd May 1916, he applied to the court for extension of time, explaining that what had prevented performance of his part of the bargain, was, not his but the conduct of the defend-ants. The court extended the time for payment till the 21st June 1916. On that date Rs. 145 was paid and an application made for a further extension of time. Or the 5th July 1916, the balance due was deposited and accepted. The defendants contended that that plaintiff had forfeited his rights under the compromise and the consent decree, and that the Court had no authority to extend the time under Section 148, Civil Procedure Code. The objection was over, ruled on the 4th August 1916, and the preliminary decree are made absolute on the 5th September 1916. Upon appeal, the District Judge has reversed that decision and has dismissed the suit on the ground that Section 148, Civil Procedure Code, had no application, and that, where the time for performance has been fixed by a (Consent order, the time cannot be enlarged except by consent. The plaintiff has now appealed to this Court and has argued that, although Section 143, Civil Procedure Code might not in apply, the Trial Court was competent, on principles of carefully, to afford relief against forfeiture, even though the time for performance had been fixed originally by content of parties and a consent-decree made on the basis thereof. The question raised is by no means free from difficulty, and requires careful examination,

(2.) Two principles are well settled with regard to the nature and operation of consent-decree. In the first place, there is high authority for the proposition that a consent-decree is just as binding on the parties thereto as a decree after a contentious dial, South American and Mexican Co, In, re (1895) 1 Ch.37 : 12 R. 1 : 71 L.T. 594 : 43 W.R. 131 : 64 L.J. Ch. 189, The Bellcaim (1885) 10 P.C. 161 : 55 L.J.P. 3 : 5 Asp. M.C. 503 : 53 L.T. 685 : 34 W.R. 55, Jenlins v. Robertson (1867) 1 Sc. And Div. 117, Thomson v. Moore (1889) 23 L.R. Ir. 599, Irish Lord Commission v. Ryan (1900) 2 Ir. Rep. 565 : at.P. 584 : 5 Ir. L.R. 518. This rule has been repeatedly recognised and applied in Indian Court, Nicholas v. Asphar 24 C. 216 : 12 Ind. Dec. (N.S.) 810 , Bajlakshmi Dassee v. Katyayani Dassee 12 Ind. Cas. 464 : 38 C. 639 at. p. 674, Fate Chand v. Narsingh Das 16 Ind. Cas. 988 : 22 C.L.J. 383, Amriia Hundari v. Sherajud-din Ahamed 29 Ind. Casa. 156 : 19 C.W.N. 565, Kumara Venkata Perumal v. Thatha Ramaswamy Chetty 9 Ind. Cas. 875 : 35 M. 75 : (1911) M.W.N. 290 : 9 L.T. 487 : 21 M.L.T. 709, Thiruvambala Detikar v. Chinna Pandaram 34 Ind. Cas. 57 : 40 M. 177 : 30 M.L.T. 274 : (1916) 2 M.W.N. 43 : 4 L.W. 303. In the second place, it is equally well-settled that a consent- decree cannot have greater validity than the compromise itself. As was observed by the Court of Appeal in Hudders-field Banking Go, v. Lister 16 Ind. Cas. 988 : 22 C.L.J. 383, the real truth of the matter is that a consent order is a mere creature of the agreement, and if greater sanctity were attributed to it than to the original agreement itself, it would be to give the branch an existence which is independent of the tree. To use the language of Kay, J., the consent order is only the order of the Court carrying out the agreement between the parties. The same idea was expressed in different terms when Parte, J., said in Went-worth v. Bullen (1829) 9 B. and. C. 840 : 33 R.R. 353 : 9 L.J. (C.S.) K.B. 33 : E.R. 313, that "the Contract of the parties is cot the less a contract and subject to the incidents of a contract, absence there is superadded the command of the Judge." This statement was quoted with approval by Erie, C.J., in Lievesley v. Gilmore (1866) 1 C.P. 570 : 1 H. and R. 849 : 35 L.J.C.P. 351 : 12 Jur. (N.S.) 874 : 15 L.T. 386 and by Chitty, J., in Conolan v. Leyland (1884) 27 Ch. D. 632 : 54 L.J. Ch. 123 : 51 L.J. 895. The doctrine has been recognised and applied in a long series of cases in this Court; Bajlakshmi Dassee v. Katyayani Dassee 12 Ind. Cas. 464 : 38 C. 639 : at .p. 674, Kshetra Moni Dasi v. Amodini Dasi 16 Ind. Cas. 611, Keshab Panda v. Bhobarti Panda 21 Ind. Cas. 538 : 18 C.L.J. 187, Umeshananda Dut Jha v. Mohendra Prosad Jha 11 Ind. Cas. 280 : 14 C.L.J. 337 : at P. 345, Lal fiehary Mitra v. Nagendra Nath Chitterjee 16 Ind. Cas. 690 : 22 C.L.J. 266, Amrita Sundari v. Kherajuddin Ahamed 29 Ind. Cas. 156 : 19 C.W.N. 565, Calstaun v. Woomesh Chandra Bannerjee 35 Ind. Cas. 850 : 44 C. 789 : 25 C.L.J. 303.

(3.) From the second of the two principles enunciated above, Jenkins, C.J., in Krishna Dat v. Hari Govind Kulkarni 31 B. 15 : 8 Bom. L.R. 813 : 1 M.L.T. 370 drew the conclusion that, where the consent-decree gives effect to an agreement which embodies a right to forfeiture, the Court, in the exercise of its equitable jurisdiction, is competent to grant such relief against forfeiture as it might have granted if there had been no consent decree and a suit had been instituted to enforce the compromise. It was pointed out that are, under the Code of Civil Procedure, Order XXIII, rules, the decree is to be in accordance with the agreement, it cannot be deemed to have altered the relations of the parties as they existed under the agreement, and as it was an incident of those relations that the right of forfeiture was subject to relief that incident must still apply when those relations are established by a decree passed in accordance with the agreement. This coincides with the view previously expressed by the Madras High Court in Nagappa v. Venkat Row 24 M. 265 and Lakshmanaswami Naidu v. Rangavima 24 M. 265 followed in Kumara Vemkata Perumal v. Thatha Ramaswamy Chetty 9 Ind. Cas. 875 : 35 M. 75 : (1911) M.W.N. 290 : 9 L.T. 487 : 21 M.L.T. 709; Beaman, J., amplified the same point of view when ha stated, referring to the decision in Great North West Central Railway v. Charlebois (1899) A.C. 114 : 68 L.J.P.C. 25 : 79 L.T. that by private agreement converted into a decree, parties Court not empower themselves to do what they could not have done by private agreement alone. This logically leads to the conclusion that the Court could not be compelled to enforce the agreement unquestioningly and literally; the decree is to be deemed, So long as it stands, as only the indisputably correct presentment of the contract, subject necessarily to the incidents of such a contract which include equitable relief against a forfeiture as not the least important and well-established, A party to a contrast embodied in a constant decree cannot be held to have renounced any incidental advantages for equitable relief a of which, upon the face of the contrast itself as presented in the decree, he might ordinarily have claimed the benefit: Kumara Venkata Perumal v. Thatha Ramaswamy Chetty 9 Ind. Cas. 875 : 35 M. 75 : (1911) M.W.N. 290 : 9 L.T. 487 : 21 M.L.T. 709.