MOORIANTAKATH AMMOO Vs. MATATHANKANDY VATAKKAYIL POKKAN

JUDGEMENT

(1.) This appeal is preferred by the decree-holder against the dismissal of his petition for the execution of a compromise decree. The decree is dated 10 December, 1931 and it arose out of a suit for the eviction of a tenant under a Malabar Marupat. The terms of the compromise decree may be summarised as follows: The amount due from the defendant for arrears of rent was fixed at Rs. 89-3-5, the plaintiff agreeing to relinquish the balance of h's claim. The amount settled as due from the plaintiff for the value of improvements was Rs. 25-11-5. It was agreed that on the plaintiff depositing in Court before the 31 August, 1932, the sum of Rs. 236-8-0 (that is, Rs. 325-11-5 - Rs. 89-3-5) the defendant should surrender the property and should thereafter up to the date of surrender pay rent at a stipulated rate; any arrears of rent to be adjusted against the amount due for improvements. There was also a term regarding the settlement of a promissory note dispute between the parties.

(2.) Instead of making the deposit within the nine months allowed by the terms of the compromise decree the plaintiff did nothing until just before the date on which the decree would become barred under the ordinary law of limitation, the deposit being actually made in December, 1934 Without any explanation for the delay or any application to extend the time he sought to execute the decree, just as if it were an ordinary decree in an eviction suit passed after a full trial. The executing Court held that this was permissible. The lower appellate Court has dismissed the petition.

(3.) It seems to me a self-evident proposition that when there is a decree based on an agreement between the parties, an essential term of that agreement embodied in the decree cannot be changed by an act of the Court on the application of one only of the parties, but the consent of both parties to the original agreement would be necessary for its modification. The Court, after all, is doing nothing more than give judicial force to a contract and there is no basis for the decree other than the contract. It follows that the decree cannot be varied except by the consent of the contracting parties. It seems to me that this principle must apply to the terms of contract which fixes a definite period for the performance of an obligation as an essential part of the contract. So much has been recognised in an English case, Australasian Automatic Weighing Machine Co. V/s. Walter (1891) Weekly Notes Chan. p. 170. But two Indian cases have been quoted under the impression that they embody a different principle. The earlier case Venktaramanna V/s. Gurappa (1915) 28 M.L.J. 488, related to a compromise according to the terms of which a sum of money was to be deposited in Court, promissory notes which were then in Court were to be cancelled and both these things were to be done within a certain time. The deposit was made within time but there was some delay in cancelling the promissory notes. The Court held that the provision for the cancellation of the promissory notes was intended merely as a safeguard against fraudulent negotiation. This was in fact prevented by their being in the custody of the Court and therefore the time fixed for the cancellation of the promissory notes must not be regarded as being part of the essence of the contract but a mere penal clause and the Court could relieve against the penalty. The later case Jogamma V/s. Ramalakshmi (1915) 2 L.W. 635, was also a case in which it was held that the Court could relieve against the enforcement of a penal clause in a contract which had been embodied in a decree of Court. Neither of these decisions purports to lay down any general rule that when under a compromise decree a certain time is fixed for the performance of an obligation under the decree the Court has by virtue of Section 148 of the Code of Civil Procedure power to vary the terms of the decree by granting an extension of time. I am of opinion that the Court has no such power and that if the time stipulated is an essential part of the terms of the contract embodied in the decree and not a mere threat of a penal nature, there is no power in the Court to make a new contract for the parties fixing some other time than that which has been stipulated.