Judgment

MATHEW, J.:- These two appeals, by special leave, are from the common judgment passed by High court of Mysore on 16-6-1966 confirming the order of the District Court, Bangalore, allowing an application for execution of the compromise decree passed on 24-6-1959 in appeal from the decree in O.S. 85 of 1949-50 of that court.

2. The appellant was the defendant in the suit and the respondent the plaintiff. As matter in controversy between the parties in the appeal turns upon the construction of the compromise decree, it is necessary to set out its terms:

(i) The defendant agrees to receive from the plaintiff a lakh of rupees paid as consideration for the sale of the property No.44, Mahatma Gandhi Road, Bangalore, together with stamp charges of Rs.3,300/- (rupees three thousand and three hundred only) with interest at six per cent per annum of the above two sums from 10-3-1947 up-to-date together with Rs.7,000/- (rupees seven thousand only) deducted by the Corporation minus the rent received viz. Rs.22,500/- (rupees twenty two thousand and five hundred only) and give up all rights to the said property. The plaintiff will be entitled to the materials lying on the premises.

(ii) The period of time fixed for the payment by the plaintiff to the defendant of this amount stated above is till 1-1-1960.

(iii) The plaintiff agrees to deposit the amount in court for payment to the defendant.

(iv) On failure of the plaintiff to deposit the amount in court by 1-1-1960 his suit now in appeal will be dismissed with costs throughout.

(v) It is agreed by the parties that time is the essence of the contract and no further extension of time would be allowed and the dismissal of the suit with costs would be automatic.

3. The respondent applied for challan on 22-12-1959 to deposit the amount and a challan was issued to him on 24-12-1959, the last working day before the Court closed for Christmas holidays. December 31, 1959 and January 1, 1960, were holidays. Neither the lower courts nor the banks were open on these days. The respondent made the deposit on 2-1-1960 and sought to enforce his right under the decree by compelling the appellant to execute the conveyance in terms of the compromise decree by filing execution case No. 25/1960. The appellant also filed execution case No.45 of 1960 for cost on the basis that the suit stood dismissed as per the provision in the decree on the failure of the respondent to deposit the amount by 1-1-1960. These two petitions were heard together, and the court passed an order holding that the respondent had made the deposit in substantial compliance with the decree and allowing execution case No.25 of 1960 and dismissing execution case No.45 of 1960. Against this order, the appellant filed appeals 33 and 34 of 1960 before the High Court of Mysore. A Division Bench of the High Court, by its judgment dated 16-6-1966, dismissed the appeals with costs.

4. The short question for consideration in these appeals is whether the deposit made by the respondent on 2-1-1960 was within the time specified in the compromise decree and would enable him to compel the appellant to execute the sale deed in accordance with the provisions of the compromise decree.

5. It was argued on behalf of the appellant that the respondent had practically six months time to deposit the amount, that he should not have waited for the last day of the period allowed to him by the decree to deposit the amount and if he was not diligent to deposit the amount earlier, he must suffer the consequences if the Court happened to be closed on the last day on which he should have made the deposit. Counsel said that there is a distinction between a case where under a decree an act has to be performed by a party on a day certain and a case where the party has the liberty to perform the act within a certain time or by a certain day; that in the former case, if the act cannot be performed by reason of circumstances beyond his control, he will be relieved against the con