1. This Letters Patent Appeal is brought by the first respondent (first defendant) against the judgment of Krishnaswami Nayudu J. under Clause15 of the Letters Patent, leave to appeal having been granted by him.
2. The short question that falls to be determined in this appeal is whether it is open to the executing court to go behind the terms of the compromise decree, and refuse specific performance on the ground that the performance of the contract would involve hardship within the meaning of Section 22 of the Specific Relief Act, or on other equitable grounds.
3. Under the terms of the compromise decree, which was entered into on 7-8-1935 in O. S. No. 554 of 1932 on the file of the District Munsif Court, Tenali, the appellant and the second respondent agreed to convey to the first respondent the property situated in Kakarlamudi and Tenali villages and the plaint schedule property for Rs. 400 and Rs. 3000 respectively, and that proper documents would be executed within one month after the date of the compromise. The decree further provided that tooth the parties should be at liberty to have the right and interest, which they possessed, enforced in execution of the decree without reference to a separate suit. The first respondent herein filed in 1938 and 1941 two formal execution applications to keep alive the decree. In 1944 he filed E. P. No. 238 of 1944 under Order 21, Rule 34 of the Civil P. C., praying that the appellant and the second respondent should be directed to execute sale deeds in his favour as per the terms of the compromise decree.
4. The appellant and the second respondent contended that having regard to the long delay of nine years and the rise in prices of immoveable properties, the execution petition should be dismissed. The District Munsif of Tenali, as also the Subordinate Judge of Tenali on appeal in A. S. No. 28 of 1946, upheld their contention and dismissed the execution petition.
5. On the first respondent filing C. M. S. A. No. 159 of 1947 (A) to this Court, Krishnaswami Nayudu J. held, in a careful and well-considered judgment, that no hardship whatsoever was caused in the performance of the contract, that the hardship pleaded, namely, the rise in prices of immoveable properties, is not a hardship, as contemplated under Section 22(2), Specific Relief Act, and that it is not open to the executing court to go behind the terms of the compromise decree, and refuse specific performance on equitable grounds, or on the principles laid down in the Specific Relief Act.
6. After a careful consideration of the facts and circumstances of the case, and the contentions addressed on behalf of the appellant, we agree with the conclusion of the learned Judge, There is absolutely no doubt that the execution application is not barred by limitation but is in time. The mere fact that there has been any delay in enforcing the decree for specific performance does not extinguish his right or clothe the appellant with any rights. Even in an ordinary suit for specific performance, mere delay does not preclude the plaintiff from obtaining specific Performance, if the suit is otherwise in time. The delay must be such that it may be properly inferred that the plaintiff has abandoned his right, or on account of delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant. In the present case it is not possible to infer waiver or abandonment as the first respondent filed two earlier execution petitions indicating thereby his intention to enforce the decree for specific performance. So long as the decree is capable of being enforced, and the execution application is in time, no question of waiver orabandonment arises. Moreover, subsequent increase in prices of immoveable properties is not a hardship within the meaning of Section 22, Specific Relief Act.
In a recent Judgment, to which one of us wasa party, in -- 'Sankaralinga Nadar v. RatnaswamiNadar' : AIR1952Mad389 , it was held thatthe question of hardship, with reference to Section 22of the Specific Relief Act
'must be judged as on the date of the transaction, and not in the light of subsequent events, and that further the hardship should be one collateral to the contract, and not in relation, to a term of the contract such as quantum of consideration.'
It was clearly laid down in that decision that subsequent rise in prices will not entitle the court to refuse specific performance, if the transaction was originally entered into for proper consideration. We are, therefore, satisfied that there are no proper grounds for refusing to enforce the terms of the compromise decree. The appellant is also not entitled to complain about the delay, as it was open to her to enforce the terms of the compromise decree and recover the sum of Rs. 850 directed to be paid to her for maintenance.
7. The next question that arises for consideration is as to whether it is open to the executing court to go behind the terms of the decree and refuse specific performance, which will have the effect of nullifying the decree. The argument of the learned advocate for the appellant was that the decree, being a compromise decree, should be regarded merely as a contract entered into between the parties, and that in enforcing that decree, it is open to the court to apply the provisions of the Specific Belief Act. In dealing with the question as to how far a compromise decree operates as 'res judicata', it has been held by a Bench of this Court in -- 'Kumara Vcnkata-perumal v. Thatha Ramaswami Chetti', 35 Mad 75 (C), that the compromise decree cannot be regarded as a mere contract, but that it has got a sanction far higher than an agreement between the parties, inasmuch as the agreement or arrangement between them is adopted by the court and passes into an adjudication of the court and consequently acquires all the solemnity of a judicial pronouncement, and that the parties to the decree cannot, therefore, put an end to it at their pleasure in the manner that they could rescind a mere contract.
Courts have no doubt interfered and refused execution of compromise decrees in order to relieve parties against penal clauses, or against forfeiture on the ground that the compromise decrees passed by the courts amounted to a mere adoption of the contracts, which existed between the parties to it, and that the courts must be taken to have adopted the contracts with all their incidents; and that it was consequently competent to the courts to relieve against penal clauses or against forfeiture. Vide -- 'Bheema Venkatara-mana v. Bommini Gurappa', AIR 1916 Mad 1008 (D) and -- 'Nagappa v. Venkatarao', 24 Mad 265 (E). Compromise decrees embodying terms; which are opposed to public policy or any statutory provision would also not be enforced in execution by courts. Vide -- 'Lakshmanaswami Naidu v. Ran-gamma', 26 Mad 31 (P). But the principles laid down in the above decisions do not warrant any further extension for importing equitable considerations, or applying all the provisions of the Specific Relief Act, and regarding the compromise decree as a contract simpliciter, which is sought to be specifically enforced for the first time, as it is a well established principle of law that art executing court cannot alter, vary, or add to the terms of a decree, whether passed on contest or by consent.
8. The learned advocate for the appellant did not cite any authorities other than those referred to by Krishnaswami Nayudu J. in the judgment, under appeal. The learned Judge has rightly held that those decisions have no application to the facts of the present case, and do not support the broad proposition contended for by the appellant's advocate. It is, therefore, unnecessary for us to refer to those decisions.
9. The only decision, which requires to be considered, is the one in -- 'Shankar Sakharam v. Ratanji Premji', : AIR1923Bom441 (G). It was found in that case that time was of the essence of the contract, and that consequently, the defendants were not entitled to enforce the compromise decree after the lapse of the time prescribed, i.e., two months. But there are observations in that decision to the effect that,
'the contract of the parties is not the less a contract, because there is super-added the command of a Judge,'
and that it is open to the executing court to apply the provisions of the Indian Contract Act, and render the compromise arrived at by the parties nugatory under particular circumstances. We do not agree with that decision, and we do not wish to extend or add to the powers of the executing court any more than what has been recognised by the decisions of our court already referred to.
10. In the result, we agree with the decision of the learned Judge and dismiss the Letters Patent Appeal with costs of the first respondent,