(1) This appeal arises out of execution proceedings in O. S. 297 of 1961, a suit instituted by the respondent for specific performance of an agreement to reconvey the suit property dated 13-6-1959 executed by the appellant to the respondent. The suit itself was compromised and a consent decree was passed in and by which the respondent (plaintiff) 15-11-1962 and also deposit the necessary general stamp papers into court for the appellant to reconvey the property to the respondent on such deposit of the said amount by the respondent. The respondent did not deposit the amount as mentioned in the said decree on or before 15-11-1962 but filed F. P. 605 of 1962 on 26-11-1962, after depositing the sum of Rs.800 any praying the court that the appellant might be directed to execute a sale deed in favour of the respondent as per the terms of the compromise decree. By abundant caution, the respondent filed M. P. 935 of 1962 in O. S. 297 of 1961 for extension of time for payment of the said sum of Rupees 800 as per the terms of the consent decree. He set up a plea that on or before 15-11-1962 he tendered the money to the judgment debtor (appellant here) and that as he refused to receive the same, he did not deposit and therefore he had come to court to execute the decree after depositing the said sum of Rs.800 and praying the court to extend time for payment from 15-11-1962 till the date of deposit made by him in the court. The courts below disbelieved the story of the respondent but they came to the conclusion that time was not the essence of the contract in respect of the immovable properties, granted the extension of time and directed the appellant here to execute a sale deed in respect of the suit property in favour of the respondent. It is against the order of the Subordinate Judge, Cuddalore in appeal that the judgment debtor has preferred this civil miscellaneous second appeal.
(2) In this appeal, it is seriously contended by learned counsel for the appellant that time is the essence of the contract in the case of reconveying the suit property. In this connection he has drawn my attention to the decision of the Federal court in Shanmugham Pillai v. Annalakshmi Ammal, 1949 FCR 537 = AIR 1950 FC 38 It has been laid down at page 546 (of FCR)= (at p. 41 of AIR).
'It is well settled that when a person stipulates for a right in the nature of a concession or privilege on fulfilment of certain conditions, with a proviso that in case of default the stipulation should be void, the right cannot be enforced if the conditions are not fulfilled according to the terms of the contract. Such conditions, though relating only to payment of money, are not regarded as a penalty and courts of equity will not afford relief against a forfeiture for their breach'.
(3) This principle has been consistently followed later by the Supreme Court in Simrathmal v. Nanjalingiah : AIR1963SC1182 and this court in Balasundar v. Muthuvenkatachala : AIR1954Mad799 . There seems to be some force in the contention urged by learned counsel for the appellant,. But we have to consider whether the extension of time can be granted in the circumstances of the instant case. It is common ground that this is a suit for specific performance of the agreement to reconvey the suit property which originally belonged to the respondent here. There is also the compromise decree in any by which certain time was fixed for depositing the sum of Rs.800. Unfortunately, as noted by the Courts below, there is no default clause. In such a case, the court should take into consideration that the suit should be deemed to be pending but not finally disposed of. In Abdul Shaker Sahib v. Abdul Rahiman Sahib, 44 Mad LJ 107=AIR 1923 Mad 284 the facts are similar. In that case a decree for specific performance of a contract for sale provided (a) that, upon payment by the plaintiffs of a sum named within two months from the date of the decree, the first defendant to execute and registrar a proper deed of conveyance of the properties in the schedule and (b) that upon payment the first defendant do put the plaintiffs in possession of the said properties together with all title deeds. In such a case, Sri Walter Schwabe C. J. for the Bench observed at page 113:
'Lastly it was contended and this is a more difficult point, that as two years head elapsed from the date of the original offer of the money, the plaintiffs were too late in bringing this suit. It is a well established principle that persons who desire the assistance of the court in obtaining equitable relief must be decided on the facts whether the delay on the part of the plaintiff is such that the court ought not to exercise its powers. In this case on the facts I think that the delay should be excused, for on the evidence, the plantiffs were put of for sometime by the first defendant himself. The case has, however, been brought very late but in my judgment, no late enough to compel us to refuse relief at not being shown that the defendant had been prejudiced.'
Veeraswami J. in similar circumstances in Palanichami Nadar v. Gomathinayagam, 78 Mad LW 186 has held = (headnote AIR 1966 Mad 46).
'Even though the finding of the court is to he accepted that the default was on the part of the purchaser as he was not ready with the funds to complete the sale on 30-4-1959, this is a case in which time was not of the essence of the contract and therefore the plaintiff will be entitled to a decree for specific performance. Equity will look not at the letter, but the substance of the transaction in ascertaining the intention of the parties to the agreement, and notwithstanding an express stipulation, for execution of the sale within specified time, it would in substance regard the intention of the parties as that the agreement should be performed within reasonable time. Prima facie equity treats the importance of such time limits as being subordinate to the main purpose of the parties and it will enjoin specific performance notwithstanding, that from the point of view of a court of law, the contract has not been literally performed by the plaintiff as regards the tile limit specified. But, equity will not assist where (1) there has been undue delay on the part of the party seeking specific performance of a contract, (2) the other side has given reasonable notice to him that he should complete within a definite time and (3) the exercise of the equitable jurisdiction will result in injustice.'
There is also a decision which will be useful to refer, namely, Bhagwatsaran Singh v. Mithila Saran Singh : AIR1953Pat158 . There a party by an order of the court was required to deposit certain amount in court under a compromise and a time-limit was prescribed for it. But there was no provision as to the effect of the non-payment of the said amount. In such a case the learned Judges held:
'But if the time has expired and on account of absence of a provision in the petition of compromise, or in the order as to the effect of non-payment, the order has not operated automatically, then the court has season of the matter and can still deal with it'.
(4) Therefore, applying the above principles to the facts of the present case like the Patna case, there is no provision for the default clause in the preliminary decree. The respondent herein filed an application M. P. 935 of 1962 for extension of time. But it is not clear whether it is filed in the execution side or in the original side itself. But the printed judgment reveals that the petition is filed on the original side in the District Munsif Court Tindivanam. But the learned counsel for the appellant contends before me that this order should be taken to have been passed in the execution proceedings and if this is an order in the execution proceedings, certainly he is entitled to file an appeal. Without going into this question whether M.P. 935 of 1962 has been filed on the original side or in the execution proceedings. I am of opinion that the courts below have rightly decided that the time should be extended to enable the respondent to deposit the money as per the terms of the compromise decree.
(5) Whatever the might be, there is to my mind as observed by the Federal Court when a concession is given for the reconveyance of the suit property, the respondent here should have implicitly discharged that obligation as stipulated in the compromise. But at the same time is a specific performance of an agreement to reconvey the immovable property which originally belonged to the respondent. Taking all the facts into consideration and in the interests of justice, I direct the respondent here to deposit another sum of Rs.200 in addition to Rs.800 already deposited to the credit of the suit O. S. 297 of 1961 on the file of the District Munsif Court, Tindivanam. The respondent is entitled to have the reconveyance of the property by executing the decree against the appellant.
(6) The civil miscellaneous second appeal is dismissed, subject to the above modification. No costs. Time for payment two months. No leave.
(7) Order accordingly.