judgement:
Civil Appeal No. 1331 of 1966.
Appeal by special leave from the order dated January 20, 1966 of the Bombay High Court in Special Civil Application No. 54 of 1966.
D. V. Patel and L N. Shroff for the appellant.
G. P. Pai, Bhajan Ram Rakhiani and R. K. Khanna, for respondent No. 1.
The Judgment of the Court was delivered by Mitter, J.
The question involved in this appeal by special leave from an order of the Bombay High Court rejecting summarily a petition under Art.227 of the Constitution for the issue of a writ of certiorari or other appropriate writ for examining the legality of the award made by the Industrial Tribunal, Maharashtra on July 27, 1965 and published in the Maharashtra Gazette on August 19, 1905 and for quashing the same appears to be one of first impression so far as this Court is concerned.
The appellant before e this Court is an institution which came into existence as far back as 1834.
It originated in the desire of certain Hindu and Parsee gentlemen of the City of Bombay to put a stop to the practice of killing of stray dogs by the stray dogs by the sepoys of the East India Company.
the deed of October 18, 1834 shows that certain Hindus , Parsees and Mahajuns had resolved to start a Panjrapole with suitable.buildings by raising subscription and also by promising to pay certain fees on stated mercantile commodities to the Panjrapole to be established for the keeping of stray cattle and other animals and for protecting their lives.
This was followed by a deed of declaration of trust executed on 2nd November, 1850.
This shows that the institution mentioned in the earlier document had 204 been established and the management of its funds had been placed in the hands of certain Banians.
under the superintendence of Sir Jamshedjee Jeejeebhoy and that out of the surplus funds collected Rs. 75,057/ had been invested in the purchase of Government Promissory notes.
The trustees were to stand possessed of the said notes and interest and dividends thereof upon trust for the use and benefit of the said institution.
On 2nd November, 1850 a deed of assignment and declaration of trust in favour of panjrapole was executed by Sir Jamshedjee Jeejeebhoy to Khimchand Motichand.
This document shows that a part of the surplus funds had been invested in the purchase of several pieces or parce Is ,of lands, houses etc.
and the new trustees were to stand possessed of the same upon trust for the use and benefit ,of the said institution.
Another trust deed was executed ,on 5th September, 1851 by Khimchand Motichand, Sir Jamshedjee Jeejeebhoy and others.
This document shows that the institution was then possessed of considerable wealth comprising of Government promissory notes, houses, lands and other immovable estate in the Islands of Bombay, besides cash balances.
The funds of the institution appear to have been augmented further under a deed of 10th June, 1871.
According to this document certain charitably disposed persons, Hindus and Parsees, had raised a fund for releasing animals in Surat meant for slaughter on the occasion of Bakrild and Id E Kurbani.
The trustees of the said fund being desirous of transferring the sums in their hands with all accumulations of interest, income etc.
and also the trust thereof to the trustees of the Bombay Panjrapole had requested the trustees of the said Panjrapole to become the trustees of Surat Bakri Id fund to which the latter had a in Surat meant for slaughter on the occasion of Bakrild and Id E Kurbani.
The trustees of the said fund being desirous of transferring the sums in their hands with all accumulations of interest, income etc.
and also the trust thereof to the trustees of the Bombay Panjrapole had requested the trustees of the said Panjrapole to become the trustees of Surat Bakri Id fund to which the latter had agreed.
This document shows further that the trustees of the Bombay Panjrapole had agreed to use the said funds towards the purchasing, releasing and redeeming from slaughter some of the cows, sheep and other animals intended or likely to be sacrificed at Surat on the Bakrid or Id Kurbani occasions and for conveyance of the animals so purchased to be kept there according to the custom and rules of that institution.
In 1915 the Government 205 declared the institution as an infirmary under the Preven tion of Cruelty to Animals Act (IX of 1890).
it would appear that the Bombay Panjrapole expanded its activities considerably over the years and had besides its original seat at Bombay, branches at three other places viz., at Raita, Bhiwandi and Chembur Cattle, birds and other animals were kept and maintained at all these places.
A very large number of persons was pursuing manifold acti vities at the said places.
Latterly the workers of the institution were not satisfied with their wage scales and other service conditions.
On the basis of the report submitted by the Conciliation Officer under sub s.(4) of s.12 of the Industrial Disputes Act the Government of Maharashtra referred the dispute for adjudication to the Tribunal constituted under a Government notification.
An order of reference was made on 25th June, 1963 and the heads of disputes were, the wages, privilege, sick and casual leave, bonus, gratuity and reinstatement of certain workmen.
In the written statement filed by Panjrapole it was stated inter alia (a) The main aims and objects of the institution were purely charitable.
Whatever income the institution had was not all to be distributed either to the donors or the trustees.
It was wholly and solely for the maintenance and treatment of animals of the Bombay Panjrapole.
To aehieve the above objects the means to be adopted were (i) maintenance of a shelter house for aged and unserviceable animals; (ii) the feeding and treatment of all animals entrusted to the institution either by the owners anxious to pension their old animals or rescued by philanthropic persons from the hands of butchers and the protection of animals remanded by magistrates; (iii) the breeding of bulls under ideal and sanitary conditions; (iv) the maintenance of a dairy farm with special attention to proper feeding, accommodation and water supply, the proceeds to go to the benefit of other animals of the Panjrapole; and 20 6 (v) bringing up of calves of the young cows under healthy conditions.
(b) The Managing Committee of trustees of the institution was advised that in fulfilment of their primary and only object of maintaining sick and infirm cattle and dogs etc.
it was necessary that they should have healthy food and nutrition.
Since milk from outside would not fulfil that condition it was decided to upgrade the infirm cattle and rear them into good animals so as to get good and pure milk for the inmates of the Panjrapole.
Thus the milk that was produced and remained surplus after feeding the old cows, motherless calves and dogs and other such animals was sold to members of public instead of being thrown off.
The income derived therefrom was again utilised only after maintenance of the Panjrapole animals.
The sale proceeds of the milk was never utilised nor meant for the benefit or the profit of the donors of of trustees nor was it produced and sold for the purpose or satisfying human needs or desires or with any object of rendering material service to the community.
The cows which yielded milk were kept by the Panjrapole till the end of their lives.
The milk derived from them could only be considered as natural and incidental product in the maintenance of cows.
It was submitted on the basis of the above that essentially object with which the institution received animals was not for doing service to their owners or others but to the animals themselves.
The Tribunal examined meticulously the activities of the institution over a number of years.
The workers served various interrogatories on the trustees to elicit from the various facts relating to the income by way of rent from building etc.
the income from milk and milk products, the income from sale of other commodities, the number and categories of animals in the Panjrapole, the number of animals, if any, purchased, the number of dry and wet cows owned by the Panjrapole and the number of stud bulls either purchased by or bred at the Panjrapole for the last ten years.
The society answered all the particulars.
The chart below prepared by the respondent shows the total cattle strength of the Panjirapole in all its four branches comprising of productive animals (whether milch cows milch buffaloes, 207 stud bulls and working bullocks), the number of unpro ductive animals, including cows, buffaloes, buffalo calves, heifers and calves and bullocks.
The chart was compiled from the documents disclosed by the appellant and contains the figures for the years 1958 to 1962 Total strength in the following years.
1958 1959 1960 1961 1962 Total strength Bombay 149 117 150 201 214 Raita 833 595 508 604 538 Bhiwandi 501 653 503 408 426 Chambur 191 233 272 275 281 Total 1,674 1,598 1,533 1,4881,459 Sick, old and infirm Bombay.
Raita 32 19 10 16 31 Bhiwandi 424 364 132 150 171 Chambur.
Total 466 25 % 383 20% 142 10% 166 10% 202 15% Young animals Bombay Raita 181 44 120 50 36 Bhiwandi 6 47 5 99 59 Chambur 56 87 79 93 100 Total 243 178 204 242 185 Other cattle not sick Bombay 149 117 150 201 214 Raita 620 532 488 538 471 Bhiwandi 71 242 366 159 196 Chambur 135 146 193 182 181 Total.
975 1,037 1,197 1,080 1,602 The following chart was pared by the respondents showing the values of the milk supplied to the animals as 208 also the amounts fetched by sale of the surplus milk for the same years.
Chart.
Year Own consump Sale Total Percentage tion.
Rs. Rs. Rs. of sale approxima tely 1 2 3 4 5 1958 2,681 1,49,854 1,314 3,995 1,53,849 2.
6% 1959 5,256 6,716 5,475 17,447 1,69,465 1,86,912 9. 5% 1960 1,755 6,570 2,686 11,011 2,13,117 24,1185% 1961 2,046 3,286 3,504 8,836 2,23,095 2,31,9314 4% 1962 1,954 4,555 3,650 10,159 2,30,043 2,40,2024% The facts found by the Tribunal may be summarised as follows (1) At the end of the year 1962 there were altogether, 445 cows, 48 bulls, bullocks and oxen, other cattle (cows and bullocks) 508, calves 495, dogs 160, goats and sheep 32, horses 12, hares 18, cocks, hens and ducks ' 18 and parrots 8 : the total number was 1754.
(2) The total income for the year was Rs. 6,64,043 including the amount of Rs. 1,73,583 received by way of donation.
The income proper was thus Rs. 4,90,459.
, 20 9 (3) Some lands of the institution were under its personal cultivation.
The sale proceeds of the yield thereof was Rs. 6,492.
The rent fetched by the immovable property was Rs. 2,20.549.
The milk vielded by the cows was regularly collected and sold, the sale proceeds for the year being Rs. 4,30,034.
A large number of workmen was employed to attend to the cows and to feed them, to.
milk the cows and to carry and sell the milk to the public.
(4) The number of cows yielding milk at the end of the year was 242.
At that time there were 75 pregnant cows.
There were 57 other cows, 101 grown up calves (female) and 91 other small calves (female) all described as "reserved".
In the opinion of the Tribunal all these calves would in course of time grow into cows.
(5) The institution maintained some stud bulls.
Besides there were bullocks which were used for plying the carts or for cultivation of the lands of the institution.
(6) There were 36 heads of cattle described as arrivals from Bombay.
There were another 87 cows described as "danger"; the rest of the cattle (cows and bullocks) were 57 lame and blind, 177 weak, 51 infirm, quite infirm 80 and sick 108, the total of this category being 473; including the "danger" cows the total was 560.
These animals depended entirely on the charity of the institution.
The Tribunal found the activities of the institution in connection with its movable property and collection and sale of milk to be an industry while the maintenance of danger cows, blind, lame, infirm and sick, the dogs and other animals did not constitute an industry.
As already noted, the application under article 227 by the Panjrapole to the Bombay High Court was dismissed summarily and therefore we do not have the benefit of a judgment of the High Court.
As the records stand we must proceed one the facts found by the Tribunal and such light as is thrown thereon by arguments of counsel.
Before looking into the relevant authorities on the subject, we may note the points canvassed in support of or against the appeal by learned counsel on either side.
Referring to the trust deeds it was argued on behalf of the appellant that the essential purpose of the institution was 210 to keep and foster animals which were either rejected by their owners as old and infirm or of no use to them as suckling calves, dry cows etc.
It is not necessary to take into account the other animals which were maintained by the institution.
Leaving out of account the number of dogs kept, the number of other animals was insignificant.
It was argued that although the sale of milk produced a fair amount of income, certain portion of it was necessary for the maintenance of the sick and infirm animals and the sale of the balance of the milk ought to be regarded as incidental to the keeping of cows thrown on the hands of the institution and ought not to lead to an inference that the institution was pursuing an industry.
With regard to the immovable properties, it was said that they had been purchased out of surplus funds in the hands of the insti tution over 50 years back and on a conspirator of the acti vities of the institution it should be held that it was merely doing charity to animals and it was not producing food or giving service to humans to constitute its activity as an industry within the meaning of s.2(1) of the Industrial Disputes Act.
Learned counsel for the respondent drew our attention to certain facts which according to, him went to show that so far as the activity of keeping cattle, specially cows and she buffaloes was concerned, there could be little doubt that it was pursued as an industry.
He handed over two charts containing analysis of the cattle population as culled from the documents placed before the Tribunal by the institution itself.
The total strength of cattle in all the four branches of the institution in the year 1958 was 1674, 1598 in the year 1959, 1533 in the year 1960 and 1488 in 1961 and 1459 in 1962.
The sick, old and infirm cattle for the year 1958 was 456 or roughly 25 per cent of the total strength.
Young animals numbered 243 and other cattle which were not at all sick was 975 in number.
The percentage of sick, old and infirm cattle in the year 1959 was roughly 20 % in.
the year 1960 and 1961, 10 per cent and in the year 1962 15%.
The rest of the cattle according to counsel were neither old nor infirm but were either producing milk or being put to use immediately or capable of yielding milk or work in the future.
Another chart handed over by him went to show that the total value of milk produced in the year 1958 was Rs. 1,53,849 and 211 leaving out of account of Rs. 3,995 being the value of milk supplied to the sick cattle, the institution derived an in come of Rs. 1,49,854/ from the sale of milk.
The corres ponding figures for 1959 were total sales Rs. 1,86,912, value of milk consumed Rs. 17,447, income from milk, Rs. 1,69,465.
The figures for 1960 were Rs. 2,24, 118, Rs. 11,011 and Rs. 2,13,117/ ; those for 1961 were Rs. 2,31,931, Rs. 8,836 and Rs. 2,23,095/ .
The figures for the last year 1962 were Rs. 2,40,202, Rs. 10,159 and Rs. 2,30,043.
Thus according to the above figures, the percentage of milk given to the animals out of the total production was 2 6 in 1958, 9 5 in 1959, 5 in 1960 and 4 in the years 1961 and 1962.
Learned counsel drew our attention to the figures of expenses of tending the sick and infirm cattle either by employment of hospital workers or medical expenses and compared the same with the total expenses of the institution and the number of men employed.
The value of medical relief to animals either by way of salary to workers, dearness allowance paid to them, medical expenses and feeding of milk to the animals for the Bombay Panjrapole in the year 1961 was Rs. 11,762, 'for Raita Rs. 5,551, for Chembur Rs. 5,028 and for Bhiwandi Rs. 28,805.
The expenses of feeding and maintenance of sick animals for the said branches were Rs. 1,825, 13,596, 7,554 and 81,464.
But it is pertinent to note that medical expenses accounted for very small sums, namely, Rs. 1,267 for Bombay, Rs. 559 for Raita, Rs ' 1,696 for Chembur and Rs. 552 for Bhiwandi.
The figures of medical expenses for the year 1962 were equally negligible.
The number of people employed for giving medical relief at the Bombay Panjrapole in the year 1961 was only 7, namely, a doctor, a dresser, 4 coolies and other workers and a sundry worker.
Their total salary came to Rs. 6,000 besides dearness allowance of Rs. 2,448.
Similarly at Raita there were a doctor, two coolies, two dressers and sundry workers and expenditure was only Rs. 552 out of the total expenditure on all these items Rs. 4,992.
It was argued oil the basis of these figures that if the object of the Panjrapole was only to maintain and treat the old, diseased or infirm or rejected cattle on its hands acquired from different sources, the number of men employed would be very small and the milk required for the sick and infirm cattle could be had from only a few milch 212 cows and she buffaloes.
It was urged that the fact that a large number of milch cattle were to be found every year among the cattle population yielding milk regularly of the value of over Rs. 2,00,000 for the last 3 or 4 years went to show that the institution was pursuing an activity mole or less like that of, a dairy farm.
It was maintaining a number of stud bulls and had actually purchased one, the obvious object behind it being improving the cattle wealth of the institution by the production of good and healthy cattle, the females of which would come to yield milk in future.
It was said that the value of milk sold could not be as high as disclosed by the figures unless the institution was getting a number of milch cattle every year to replace those which were going dry for the time being.
This could only be possible if the institution was in a position to keep up its number of milch cattle from the young ones either given to the Panjrapole or those which were bred at the Panjrapole.
The only difference between the Panjrapole and a well organised dairy farm was that the Panjrapole was not buying milch cattle of good quality nor destroying or getting rid of any which were found to become useless.
As the objects of the institution did not permit it to get rid of any cattle it undoubtedly had to maintain whatever cattle came to it but nevertheless the activities displayed by the facts were enough to show that it was being run on the lines of a business or an undertaking, though not of the normal type of a well organised dairy business.
In our view the arguments of learned counsel for the respondent have considerable force.
The main heads of the income of the institution were income from immovable properties, donation from charitably disposed members of the public and the sale of milk.
No doubt the immovable property had been acquired many years back from the surplus funds in the hands of the trustees.
These were old houses and buildings but the Panjrapole was maintaining them in tenantable condition by incurring considerable expenses every year over the repairs.
The more significant factor was the steadily growing income from the sale of milk derived from milch cows and buffaloes, the number of which though not steady was always considerable.
Regard must also be had to the written statement of the institution itself before the Tribunal showing 213 that the Managing Committee of the trustees had decided some time back to upgrade the infirm cattle and rear them into good animals so as to get good and pure milk for the inmates of Panjrapole.
In fact however the upgrading was to such an extent that the milk yielded always was far in excess of the needs of the inmates of the Panjrapole.
Although the sale proceeds of the milk was never utilised nor was ever meant for the benefit or profits of the donors or trustees, the very production of it in such large bulk wholly unrelated to the needs of the sick cattle showed that the institution was pursuing an activity with the central idea of obtaining a steady income therefrom.
In our view, the facts justifiably lead to the conclusion that the institution deliberately diversified its objects from only tending to the sick, infirm or unwanted cattle by adopting the policy of keeping cattle not merely for their own sake but for the sake of improving the cattle population committed to its care with an eye to serve human beings by making large quantities of good milk available to them and thereby getting an income which would augment its resources.
It pursued its policy just as any dairy owner, would by having a few good quality bulls to impregnate the cows and thereby ensuring a steady production of milk and also improve the quality of the progeny.
We have then to consider whether on the above facts an inference ought properly to be drawn that the activities of the Panjrapole constituted an industry.
It is not necessary to go through the plethora of cases decided by this Court to find out whether the Tribunal had come to a proper conclusion.
Although there is no decision of this Court arising out of the affairs of a Panira Dole, there are several dealing with the question as to whether hospitals constituted industries.
The contention of learned counsel for the appellant W. as that the main and chief object of the appellant institution being the keeping and fostering of ' animals incidental activities ought to be disregarded and the institution ought to be considered as a hospital.
If the activities relating to the production of milk could be said to be incidental to the maintaining of sick, infirm and diseased or rejected cattle, the argument would, in our opinion, rest on solid foundation.
2 1 4 At the time when the application under article 227 of the Constantine was presented before the Bombay High Court, the decision of this Court in State of Bombay vs The Hospital Mazdoor Sabha (1) held the field and it can be assumed that it was on the strength of this decision that the Bombay High Court did not feel called upon to examine the merits of the case by issuing a rule.
In the 'Hospital Mazdoor Sabha 's case (supra) the dispute arose out of the retrenchment of respondents 2 and 3 before this Court who ' had been engaged as ward servants in the J.J. Group of Hospitals, Bombay under State control and management without payment of compensation as required by section 25 F(b) of the Industrial Disputes Act.
The decision of this Court shows that there was a group consisting of five hospitals under the administrative control of the Surgeon General of the appellant and its day to day affairs were conducted and controlled by a Superintendent who was a full time employee of the appellant.
The residential staff including the Resident Medical Officers, Horsemen, Nurses etc. were all full time employees of the appellant and their salaries were drawn on the establishment pay bills of the appellant and paid entirely by the appellant.
According to this Court : "This group serves as a clinical training ground for students of the Grant Medical College which is a Government Medical College run and managed by the appellant for imparting knowledge of medical, sciences leading to the Degrees of Bachelor of Medicine and Bachelor of Surgery of the Bombay University as well as various Post Graduate qualifications of the said University and the College of Physicians and Surgeons, Bombay; the group is thus run and.
managaed by the appellant to provide medical relief and to promote the health of the people of Bombay.
" On the question as to whether the activities of this group of hospitals would be covered by the definition of 'in dustry ' in s.2(j) of the Industrial Disputes Act, the Court ,observed (see at p. 878) "In considering the question as to whether the group of Hospitals run by the appellant undoubtedly (1) ; 21 5 for the purpose of giving medical relief to the citizens and for helping to impart medical education are an undertaking or not, it would be pertinent to enquire whether the activity of a like nature would be an undertaking if it is carried on by a private citizen or a group of private citizens.
There is no doubt that if a hospital is run by private citizens for profit it would be an undertaking very much like the trade or business in their conventional sense. .
Trust the character of the activity involved in running a hospital brings the institution of the hospital within s.2(j).
Does it make any difference that the hospital is run by the Government in the interpretation of the word "undertaking" in s.2(j)? In our opinion, the answer to this question must be in the negative.
It is the character of the activity which decides the, question as to whether the activity in question attracts the provision of s.2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference.
" As to the attributes which made the activity an under taking it was stated (see at p. 879) : "It is difficult to state these possible attributes denitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking.
Such an activity generally involves the co operation of the employer and the employees; and its object is the satisfaction of material human needs.
It must be organised or arranged in a manner in which trade or business is generally organised or arranged.
It must not be casual or must it be for oneself nor for pleasure.
Thus the manner in which the activity in question is organised or arranged, the condition of the co operation between the employer and the employee necessary for its success and its object to render material service to the community can be regarded as some, of the features which are distinctive of activities,, 5 Ml 1245 Sup.
Cl/71 216 to which s.2(j) applies.
Judged by this test, there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals in question.
" The recent decision of this Court in Safdar Jung Hospital, New Delhi vs K. section Sethi and Management of M/s T.B. Hospital, New Delhi vs The Workmen (1) is a pointer in the contrary direction.
There was also another appeal relating to the Kurji Holy Family Hospital.
The Court proceeded to consider the general proposition whether a hospital could be considered to fall within the concept of industry in the Industrial Disputes Act and whether all hospitals of whatever description could be covered by the concept or only some hospitals under special conditions.
According to this Court in Safdar Jung Hospital case , '(see p.1412 paragraph 1.3) "an industry is to be found when the employers are carrying on any business, trade , under taking, manufacture or calling of employers.
If they are not, there is no industry as such.
" The Court referred to the decision of this Court in Gymkhana Club Union vs Management (2) and the conclusion therein that : "Primarily, therefore, industrial disputes occur when the operation undertaken rests upon co,operation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the co operation is to reduce material services.
The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions, trade, business or manufacture.
" With regard to trade and business it was said : "Business too is a word of wide import.
In one sense it includes all occupations and professions.
But in the collocation of the terms and their defi (1) A. I.R. 1970 S.C. 1407.
(2) [1968] 1 S.C.R. 742.
217 nitions these terms have a definite economic content of a particular type and all the authorities of this Court have been uniformly accepted as excluding professions and are only concerned with the production, distribution and consumption of wealth and the production and availability of material services.
" With regard to the Hospital Mazdoor Sabha case (1) was remarked (see p. 1414) "The case proceeds on the assumption that there need not be an economic activity since employment of capital and profit motive were considered unessential.
It is an erroneous assumption that an economic activity must be related to capital and profit making alone.
An economic activity can exist Without the presence of both.
Having rejected the true test applied in other cases before, the test applied was 'can such activity be carried on private individuals or group of individuals? ' Holding that a hospital could be run as a business proposition and for profit, it was held that a hospital run by Government without profit must bear the same character.
With respect, we do not consider this to be the right test.
This test was employed to distinguish between the administrative functions of Government and local authorities and their functions analogous to business but it cannot be used in this context.
When it was emphasised in the same case that the activity must be analogous to business and trade and that it must be productive ,of goods or their distribution or for producing ,material services to the community at large or a part of it, there was no room for the other proposition that privately run hospitals may in certain circumstances be regarded as industries.
" This Court held that the Hospital Mazdoor Sabha case(1) "took an extreme view of the matter which was not justi fied".
With regard to the activities of the individual hospitals it was said the Safdar Jung hospital had not embarked on an economic activity which could be said to be analogous to trade or business.
There was no (1) [1960] 2 section C. R. 866, 218 evidence that it was more than a place where persons could get treated.
This was a part of the functions of Government and ,the hospital was run as a Department of Government and could not therefore be said to be an industry.
Again, with regard to Tuberculosis hospital it was found not to be an independent institution but a part of the Tuberculosis Association of India.
The hospital was wholly charitable and was a research institute.
The dominant purpose of the hospital was research and training, but as research and training could not be given without beds in a hospital, the hospital was run.
According to this Court, treatment is thus a part of research and training.
In these circumstances the Tuberculosis hospital could not be described as an industry.
With regard to the Kurji Holy Family Hospital again it was found to be entirely charitable.
It carried on the work of training, research and treatment; its income was mostly from donations and distribution of surplus as profit is prohibited.
It could not therefore be an industry as laid down in the Act.
Reference may also be made to the case of Lalit Hari Ayurvedic College Pharmacy vs Its Workers ' Union (1).
In this the appellate Tribunal found that the pharmacy run by the appellant sold medicines in the market and realised about Rs. one lakh per annum whereas in the hospital run by it about 30% of the medicines manufactured by it were consumed and about 70% were sold in the market.
This judgment was delivered on the same date by the same Bench which decided the Hospital Mazdoor Sabha case (supra).
On the facts found this Court held that there could be no doubt "that the activity of the appellant in running the pharmacy and the hospital was an undertaking under s.2(j) and was an industry".
The only case of Panjrapole which appears to have come before the High Courts was that of the Madras Panjrapole vs Labour Court(2)which was the subject matter of an industrial dispute referred to in the year 1958 by the State Government for adjudication by the Labour Court, Madras.
This was decided after the Hospital Mazdoor, Sabha case.
The facts referred to by the High Court were that the Madras Panjrapole was a charitable society (1) A.I.R. 1960] S.C. 1261.
(2) 219 registered under the Societies Registration Act occupying an area of about Ac.
12 00 of land within the city of Madras on which the munificence of several donors had enabled the construction of shelters for animals as well as sanctuary for birds.
The objects of the society, as stated in the memorandum of association, are protection, care and treatment of old, infirm and injured cows, calves, bullocks etc.
and affording freedom to such animals from being slaughtered unnecessarily and to guarantee old age relief to the old, infirm and unserviceable animals till they die of natural causes.
To achieve these objects, the means envisaged to be adopted were : (a) maintenance of shelter house for aged and unserviceable animals ' (b) the feeding and treatment of all animals entrusted to the care of the society either by the owners anxious to pension their old animals or rescued by philanthropic persons from the hands of butchers and the protection of animals remanded by magistrates; (c) the breeding of bulls under ideal and sanitary conditions (d) the maintenance of a dairy farm with special attention being paid to proper feeding, accommodation and water supply, the proceeds of which will go to the benefit of the other animals of the Panjrapole; and (e) the bringing up of the calves of the young cows under healthy conditions.
The Court observed (see p. 689): " It is a matter of common knowledge that a number of dry cows in the City of Madras are sold away to butchers by the poor milkmen who could not support them.
Butchers themselves offer tempting prices for such cows, a temptation which the poverty of the milkmen could not but lead him to succumb.
Dry cows were admitted into the Panjrapole to prevent them from going into the slaughter house.
Maintenance of the dry cows called for stud bulls Stud bulls were presented to the society by the Government.
In the course of time, the dry cows brought forth their progeny and began to yield milk.
220 The Panjrapole was, therefore, in a position to sell milk yielded by the cows which were received by it with a view to protect them from the slaughter house details of the sale amounts in respect of the milk produced shows that the institution had been receiving substantial sums every year by sale of milk." So for as the activities of the Madras Panjrapole and Bombay Panjrapole are concerned they are Practically identical except that in the present case the maintenance, of a dairy farm is not explicitly referred to anywhere but the facts as culled from the evidence makes the same only too obvious.
There was however a certain difference in the case of the Madras Panjra pole inasmuch as the Madras High Court found that (see p. 691) "During certain years, it even went a step further.
The Panjrapole purchased cows, maintained a dairy farm and supplemented their own production of milk with out side milk and sold them.
These activities would certainly partake the character of a business, though the profit of such business might have gone to the humanitarian activities undertaken by the society.
But the activities have long ago ceased.
What the society is now having is the milk yielded by its own cows.
Those cows are admittedly kept by the Panirapole till their lives.
They are not sold.
They are the property of the Panjrapole.
The milk yielded by those cows could only be considered as an incidental product in the maintenance of the cows.
The sale of cowdung cakes and menure and of the calves after the mother cows become dry are also incidental.
It cannot be held that a trade or business is conducted by the institution.
" According to the learned single Judige who heard the peti tion the activities of the Panjrapole had nothing to do with human needs.
They were solely devoted to the needs of helpless animals; though incidentally such activities have a business tinge about them it cannot be said to be for human need or material welfare.
The objects were mainly religious and humanitarian.
Following the test laid down in the Hospital Mazdoor Sabha case the learned Judge was of opinion that there was no industrial dispute which could be referred by the State Government to the 221 Labour court for adjudication.
The case went in appeal to a Letters Patent Bench : Workmen Employed in Madras Panjrapole vs Madras Panjrapole (1).
The Bench took a somewhat different view from that of the learned single Judge.
It demurred to the observations of the trial Judge that "there is no element of trade or business involved in the various activities of the society".
According to the Bench : "These observations, however, do not extend to subsequent developments, the result of the growth of the institution, and its attempt to achieve self sufficiency.
There were (1) purchase and sale of milk, a fairly wide upon scale, (2) the maintenance of a dairy farm during a period of the history of the institution, and (3) similarly, the maintenance of stud bulls, to enable dry cows to conceive and bear calves." The Bench felt compelled to allow the appeal to the extent of modifying the writ of certiorari and laying down that the actual decision would have to be arrived at after the record of adequate evidence by the Labour court in the light of the principles formulated, the available evidence being both inadequate and contradictory.
For the guidance of the Labour court the Bench observed Even if the institution at the inception, and as basically defined, be purely humanitarian,.
non industrial and not amenable to any of the tests.
upon which the definition has been applied,, it cannot be gainsaid that, if the.
institution had largely altered its complexion through the years, so as to have become a focus of economic production, the definition again night be applicable.
" The Bench also examined the question whether the activity of the Panjrapole was in essence religious, or spiritual, as according to it a temple or a church could not be considered to be an industry.
(1) [1962]2 L.L.J. 472.
222 The net result of the above seems to be that although the Bench was inclined to hold that the Madras Panjrapole at its inception was not an industry the complexion of its activities might have been altered by later developments so, as to render the institution as then organised an industry within the meaning of, the Act.
Further according to the Bench individual units of the Organization (like the dis trict dairy farm) might constitute an industry though the society itself may not be one.
The matter came up again before the Madras High Court (see , The Tribunal held in favour of the workmen and the learned Judge dismissed the application for the issue of a writ by the Panjrapole.
The learned Judge referred to the reports of the institution in several years past from 1937 to 1957.
He found that the object of the society had been amended in 1937 to enable it to receive young cows and charge fees from the owners.
The idea of starting a dairy farm was for supporting the infirm cows, bullocks and horses and in pursuance of that idea stud bulls were acquired for improving the cattle breeding.
, The income from the sale of milk rose phenomenally reaching the figure of Rs. 60,000 in the year 1957.
The learned Judge found himself unable to hold that maintaining cows and stud bulls and selling milk were only Subsidiary in nature to the humane the society, namely, to provide Shelter for the de CrePit and useless and infirm animals.
The learned Judge held that "if the Madras Panjrapole had confined itself to the objectives at its inception, namely, to give protection to the old, infirm and decrepit animals, it could well be con tended that it was only for the purpose of satisfying purely spiritual needs, as it is common knowledge that Hindus 'consider cow protection.
as one of their religious duties.
If the Madras Panjrapole had not extended its activities, following 'the, authorities cited above, would have had no hesitation in holding that it is not an industr) A reading of the annual reports show that a large number of high milk yielding cows and buffaloes were pur ,chased, by the society and due to the successful working of the dairy farm the Panjrapole was able to supply milk to various institutions .
The reports show that considerable profits were made by the Panjrapole, the sale of milk fetching a sum of Rs. 60,000 in the year 1957".
In the 223 result the petition was dismissed and the labour court was directed to determine the other issues.
We have referred at some length to the Madras Panjle case to show the analogy of the activities of the radoras Panjrapole to the.
Bombay Panjrapole.
Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing mulch cows and stud bulls there is very little difference between the facts of the case before us from those in the Madras Panjrapole case.
In the present case only one stud bull w s purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using ,stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk.
For the last few years, from 1958 to 1962 the number of milch cows was always Considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundate by the bulls maintained for the purpose of keeping up a steady supply of milk.
We have already referred to the fact that ' the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market.
The expenses incurred in connection with the treatment of sick and infirm animals was also negligible compared to the total expenses of the institution.
The number of men employed for such treatment was very small at all times.
The mere fact therefore that the Panjra pole never purchased milch cows and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment.
It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any Use.
The value of the milk supplied for the last 3 or 4 years was well in excess of Rs. 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as possible.
224 In this view of the matter, it is hardly necessary to consider the other cases which were cited at the Bar, namely, Gymkhana Club Union case (1), Cricket Club vs Labour Union (2) and Harinagar Cane Farm vs State of Bihar (1).
It was remarked in the Gymkhana Club case that the activity of the club is conducted with the aid of employees, who follow callings or avocations and that the activities of the club was not a calling or business of its members, of Managing Committee and there was no undertaking analogous to trade or business.
In the Cricket Club 's case (2) the Court examined the different activities of the club and came to the conclusion that they did not lead to the inference that the club was carrying on an industry.
On the facts of this case we hold that the activities of the Panjrapole as disclosed in this case constituted an industry within the meaning of section 2(j) of the Industrial Disputes Act and the appeal must therefore be dismissed with costs.
S.C. Appeal dismissed. (1) [1968] 1 S.C.R. 742.
(2) ; (3) ; 225.

summary:
The appellant Panjrapole was started in 1834 as a charitable institution for the care and protection of animals.
it expanded its activities considerably over the years.
The institution gradually diversified its objects from only tending to the sick, infirm and unwanted cattle by adopting a policy of keeping cattle not merely for their own sake but for the sake of improving the cattle population in order to get large quantities of milk for sale and there by get an income which would augment its sources.
The institution was using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a sizable income from the sale of milk.
The value of the milk sold was considerable compared to the value of milk supplied to the sick and infirm cattle of the institution.
The expenses for treating the sick animals was also very little compared to the total expenses of the Institution.
A large number of workers were employed at the institution.
They raised an industrial dispute in relation to their wages and other service benefits.
The dispute was referred for adjudication to the Industrial Tribunal.
It was contended by the Appellant that the Institution was a charitable institution and therefore was not an 'industry ' within the meaning of section 2(j) of the Industrial Disputes Act.
The Tribunal found that the activities of the institution in connection with its movable property and collection and sale of milk to be an "industry" while the maintenance of lame, infirm and sick cows, dogs and other animals was held not to constitute an "industry".
A petition under article 227 was moved in the High Court for quashing the award of the Industrial Tribunal but the same was summarily rejected.
Dismissing the appeal, HELD:On the facts and circumstances of the case, the Bombay Panjrapole is an "Industry" within the meaning of Sec.
2(j) of the Industrial Disputes Act.
The activities of the Panjrapole, though charitable at the.
beginning, was not exclusively so in later years, and the later activities show that it was carried on as a business concern.
Even the value of the milk supplied for the last 3 or 4 years itself was well in excess ,of Rs. 2 lakhs per annum and this could only be possible if the cows ,and buffaloes had been kept and maintained not merely to keep them ,alive but with the idea of getting as much production out of them as possible and the Panjrapole was run like a dairy firm.
[223H] State of Bombay vs The Hospital Mazdoor Sabha, ; , Safdar Jung Hospital, New Delhi vs K. section Sethi & Management of M/s T. B. Hospital, New Delhi vs The Workmen, A.I.R. 1970 'S.C. 1407.
Gynmkhana Club Union vs Management, [1968].
1 S.C.R. 742, Lalit Hari Ayurvedic College Pharmacy vs
Its Workers Union, A.I. R. , Madras Panjrapole vs Labour Court, , Worknien Employed in Madras Panjapole vs Madras Panjropole , Cricket Club vs Labour Union, ' [1969] 1 S.C.R. 60, Harinagar Cone Firma vs State of Bihar, [1964] 2 S.C.R. 458, referred to.


judgement:
Appeals Nos. 174 and 175 of 1967.
Appeals by special leave from the judgment and order dated June 16, 1966 of the Mysore High Court in exhibit Regular Appeals Nos.
33 34 of 1961.
V.S. Desai, Naunit Lal and Swaranjit Sodhi, for the appellant (in both the appeals).
D.V. Patel, O. P. Malhotra, P. C. Bhartari, for the respondent (in both the appeals).
The Judgment of the Court was delivered by 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.
The appellant was the defendant in the suit and the respon dent 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 517 and three hundred only) with interest at six per cent per annum of the above two sums from 16 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.
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.
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 518 enable him to compel the appellant to execute the sale deed in accordance with the provisions of the compromise decree.
It was argued on behalf of the appellant that the respondent had practically six month 's 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 ease where the party has the liberty to perform the act within a certain time a certain day .
that in the former case, if the act cannot be pet formed by reason of circumstances beyond his control, he will be relieved against the consequences of his default by reason of the maxim Lexnon cogit ad impossibility (the law does not cornpel a man to do that which he cannot possibly perform) if he performs the act at the next available opportunity, but where he has to per form an act within a certain period or by a certain date, as in this case, the law will not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period.
Whether there is any logical or reasonable basis for making the distinction, we clear that in this case the respondent had the right or, perhaps, more accurately, the liberty to deposit the amount in court till and including 1 1 196O.
In Halsbury 's Laws of England vol.
37, 3rd Edition, page 96, :it is observed "Subject to certain exceptions, the general rule is that, when an ,let may be done or a benefit enjoyed benefit enjoyed upto the last moment of the last of that period.
" if the respondent had the right or liberty to deposit the amount III court on 1 1 1960 under the compromise decree the fact that he did not choose 'Lo make the deposit earlier would not affect his right or liberty to deposit the amount in court on 1 1 1960.
In Fateh Khan and another vs Chhajju and others(1), an argument similar to the one addressed by counsel for the appellant was advanced but was not countenanced by the court.
That was a case where a pre emptor was unable to deposit the purchase money in court on the last day of the period allowed by the decree; the period expired when the court was closed for the vacation and he deposited the amount on the reopening day.
It was argued that the decree allowed the preemptor a period of time within which to deposit the amount, that he could have deposited (1) A.I.R. 1931 Lahore 386.
519 the amount earlier, that he should not have waited till the last day of the period and that if the last day happened to be a holiday, he can take no advantage of that circumstance.
The court repelled the argument by saying that if the argument is accepted it will have the effect of curtailing the days allowed to him by the decree without any reason.
It was next contended for the appellant that it was open to the respondent to pay the amount to the appellant either on December 31, 1959, or January 1, 1960, and that he should not have waited till the 2nd to deposit the amount in court.
Counsel submitted that under Order XXI Rule 1, the respondent could have paid the amount to the appellant on January 1, 1960, or earlier, that he should not have waited till the 2nd to deposit the amount in court and if the last day of the period happened to be a day on which the court was closed, that is not a circumstance which would relieve the respondent from his obligation to pay the amount within the time specified.
In support of this argument counsel referred to Kunj Bihari and others vs Bindeshri Prasad and others(1), Roshan Lal vs Ganpat Lal (2), Indal vs Chaudhary Ram Nidh(3), and Ram Kinkar Singh and another vs Smt.
Kamal Basini Devi(4), Kunj Behari and others vs Bindeshri Prasad and others(1) was a case where an installment decree provided that the first installment was payable on a certain date; the date specified expired during the vacation of the court and the amount was deposited in court on the re opening day.
It was held that the judgment debtors had the power to make the payment direct to the decree holder, that depositing in court was not the only course open to them and so they could not take advantage of the fact that the court was closed on the specified date and the payment made by them was not made in time.
The other cases cited are to the, same effect.
The Principle underlying these decisions is that when the judgment debtor has the option to pay the decree amount to the decree holder or to deposit it in court, he cannot choose one of them and act in a manner so as to prejudice the rights of the other party.
Although under Order XXI, Rule 1.
it is open to a judgment debtor to pay the amount direct to the decree holder or to deposit in court, he cannot choose the alternative when that will prejudice the decree holder.
Even here there is a conflict of opinion among the High Courts.
In Chatlapali Suryaprakasa Rao vs Polisetti Venkataratnam and others(5), the compromise decree there in question provided that the decretal amount should be paid in certain yearly (1) I.L.R. Vol.
51, 1929 Allahabad 527.
(2) A.I,R, 1938 Allahabad 199 (3) A.I.R. (33) 1946 Oudh 156.
(4) A.I.R. 1938 Patna 451.
(5) A.I.R. 1938 Madras 523.
520 instalment on certain fixed date in each year.
The decree further provided that in case of default of two successive instalments the whole amount would be recovered.
The decree however did not provide to whom the money was to be paid.
The judgment debtor failed to pay the first instalment.
On a day previous to that on which the second instalment was due he obtained a challan.
The day on which the instalment was due being a holiday, he paid the instalment next day in the Bank.
It was held by the Madras High Court that the judgment debtor did not commit default in payment of the second instalment and consequently there was no default of two successive instalments.
This is also the view that was taken in Premchand Bhikabhai vs Ramdeo Sukdeo Marwadi(1).
It is not necessary to resolve the conflict of opinion on this aspect; as we are concerned with a decree which specifically provided that the respondent should deposit the amount in court.
He had, therefore, no option to pay the same to the appellant and the appellant, perhaps, would have been within his right if he refused a tender of the amount to him.
Ile parties, for obvious reasons, agreed that the amount should be deposited in court and that was made a rule of the court and, therefore, the principle of the decision in Kunj Behari and others vs Bindeshri Prasad and others and the other cases cannot be applied here.
The question then arises as to what is the principle which should be applied in a case where a party to a consent decree is given time to do an act within a specified day or by a specified (lay and fails to do it on the ground of impossibility of performance on the last day specified but does it on the next practicable day.
This question arose for consideration in Muhammad Jan vs Chiam Lal(2).
There a decree in a pre emption suit gave the plaintiff a period of one month within which to deposit the purchase money in order to obtain the benefit of the decree in his favour, and the period expired on a date on which the court Was closed for the vacation and the plaintiff made the deposit on the day on which the court re opened.
Piggott, Lindsay and Sulaiman, JJ.
held that the deposit was in time under the terms of the decree.
They said that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by an act of their own but by the court itself, are entitled to do it at the first subsequent opportunity.
The court quoted with approval the decision in Shooshee Bhusan Rudro and another vs Gobind Chunder Roy(3) where it was observed that the broad principle is that although the parties themselves cannot extend the time for doing an act in court, yet (1) A.I.R. (36) 1949 Nagpur 141.
(2) I.L.R. Allahabad Series, Vol.
XLVI, 1924, p. 328.
(3) I.L.R. Calcutta, Vol. XVIII (1891) p. 231.
521 If the delay is caused not by any act of their own, but by some act of the court itself such as the fact of the court being closed they are entitled to do the act on the first opening day.
In Satnbasiva Chari vs Ramasami Reddi(1), the Madras High Court held that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity.
We have already referred to Fateh Khan and another vs Chhajju and others where the Lahore High Court applied this principle to a pre emption decree.
Mayor vs Harding(2) is a case in point.
In that case the appellant had applied to justices to state a case under the Summary Jurisdiction Act, 1857.
He received the case from them on Good Friday, and transmitted it to the proper court on the following Wednesday.
It was held that he had complied sufficiently with the requirement of the Act directing him to transmit the case within three days after receiving it, as it was impossible for him to transmit the case earlier than he did because of the closure of the offices of the court from Friday till Wednesday.
Mellor, J., dealt with the matter as follows : "Here it was impossible for the appellant to lodge his case within three days after he received it.
As regards the conduct of the parties themselves, it is a condition precedent.
But this term is sometimes used rather loosely.
I think it cannot be considered strictly a condition precedent where it is impossible of performance in consequence of the offices of the court being closed, and there being no one to receive the case.
The appellant lodge the case on Wednesday, that is, he did all that it was practicable for him to do." In Halsbury 's Laws of England, Vol. 37, 3rd Edition, page 97, para 172, it is observed : "172.
The fact that the last day of a prescribed period is a Sunday or other non juridical day does not as a general rule give the person who is called upon to Act an extra day; it is no excuse for his omission to do the act on some prior day.
This general rule does not hold good where the effect of it would be +Lo render performance of the act impossible.
This would be the case if the whole of the prescribed period consisted of holidays, in Which case the act may lawfully be done on the next possible day.
(1) I.L.R. 22 Madras (1899) p. 179 (2) 522 Again the general rule does not hold good where the last day is a Sunday and the act be done is one the performance of which on a Sunday is prohibited by the Sunday Observance Act, 1677, or where the act has to be done, not by the party only, but by the court or by the party in conjunction with the court.
In such cases the act may, when the last day limited for the performance of it happens to be a day when the court or its office is closed, be done on the next practicable day.
" We think that the second exception to the general rule stated in the passage and in effect followed in the rulings cited above must apply to the facts here.
But counsel for the appellant argued that the compromise decree provided that on default of the respondent to deposit the amount in court on 1 1 1960, there was to be an automatic dismissal of the suit by virtue of clause (v) thereof and the execution court had no right to alter or modify the terms of the decree and hold that the deposit made on 2 1 1960 shall be deemed to be a deposit made on 1 1 1960, and order the execution of the decree on that basis.
A court executing the decree shall execute it as it stands.
It cannot modify or vary the terms of the decree.
No exception can be taken to that general principle.
But the execution court has the right to construe a decree in the light of the applicable provisions of law and if in this case on a construction of the decree in the light of the applicable provision of law, it found that the deposit made by the respondent on 2 1 1960 was according to law a deposit in compliance with the terms of the decree, then the execution court was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law.
Counsel then contended that a compromise decree is none the less a contract, notwithstanding the fact that an order of court is super added to it and, a provision in a contract that an act shall be done within a certain period or by a particular day by a party is absolute.
In other words counsel said that duties are either imposed by law or undertaken by contract and the ordinary rule of law is that when the law creates a duty and a party is disabled from performing it without any default of his own, the law excuses him, but when a party by his own contract imposes a duty upon himself, he is bound to make it good not withstanding any accident by inevitable necessity .
Counsel in this connection referred to the passage in Halsbury 's Law, , of England Volume XIV, page 622, para 151, which reads as under 523 " 1151.
Where under a contract, conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not ,relieve against a breach of the terms".
Although a contract is not the less a contract because it is embodied in a judge 's order, or, as said by Parke J. in Went worth vs Bullen(1) B. & C. 840, 850 "the contract of the parties is not the less a contract, and subject to the incidents of a contract.
because there is super added the command of a judge".
still we think it is something more than a contract.
The Judicial Committee of the Privy Council in Charles Hubert Kinch vs Edward Keith Walcott and others (2) observed " 'An order by consent, not discharged by mutual agreement and remaining unreduced is as effective as an order of the court made otherwise than by consent and not discharged on appeal.
A party bound by a consent order must when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose.
The only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is s et aside by another order of the court : the second stands unless and until it is discharged on appeal.
" In Govind Waman vs Murlidhar Shrinivas and others(3), the Bombay High Court held that a consent decree passed by a court of competent jurisdiction cannot be treated on the same footing as a contract between the parties, that although it is true that before a court passes a consent decree, it can and should examine the lawfulness and validity of the terms of the proposed compromise, but when once that stage is passed and a decree follows, different considerations arise and therefore, where I compromise decree contains a term against alienating certain property and gives the other party right to its possession on such alienation, the decree is not a nullity in spite of the fact that the term is opposed to section 10, T.P. Act.
And the fact that it is contrary to law would not affect its binding character, unless it is set aside by taking proper proceedings.
That different conside (1) English Law Reports, (2) A.I.R. 1929 journal & Privy Council, P. 289.
(3) A.I.R. 1953 Bombay 412.
524 ration would apply when a contract is embodied in a judge 's order is also clear from Morris vs Barret(1).
In that case by a consent order it was provided that, upon payment of 341.
, the debt and costs as agreed, in installments on the 28th of May, on the 25th of June and on the 25th of every succeeding month until the whole is paid, all further proceedings in the cause be stayed.
The order further provided that, in case default be made in any payment as aforesaid, the plaintiff be at liberty to sign final judgment for the said sum of 341., and issue execution for the amount unpaid.
The first and two following installments were duly paid.
The 25th of October, the day on which the fourth installment became payable, being a Sunday, the defendant called at the office of the planitiff 's attorney on Monday the 26th, and offered to pay it, but was told he was too late, and that judgment had been signed.
No judgment, however, was signed until the following morning.
The defendant took out a summons to set aside the judgment, on the round that under the circumstances he had the whole of Monday to pay the money, and that the judgment signed after the money was offered was irregular.
The court held that the defendant had the whole of Monday to pay the money.
One of the arguments advanced in that case was that as the judge 's order was a consent order, the principle governing contract must regulate the rights of parties and therefore the defendant was not excused from performing the contract by the accident of the day being a Sunday.
In repelling this contention Erle, C.J. said : "I desire not to be understood as giving any decision as to the rights of parties under a contract : but, in arriving at the conclusion I come to, I seek only to give effect to the duty which the law imposes upon a party who is directed by a judge 's order to pay money.
The defendant was ready and offered to pay it on Monday; but the plaintiff, conceiving that the offer came too late.
declined to receive it, and on the following day signed the judgment for the balance due.
Confining myself to the judge 's order and the remedy and duty thereon and to what ought to be the fair meaning and understanding of the instrument, I find no authority for saying that the defendant was bound to search for his creditor and pay him the money on the Sunday.
" Crowder, J. said : "This is not like the case of an ordinary contract; and I de sire not to be understood as at all interfering (1) English Law Reports 141, p. 768.
525 with any of the cases which have been referred to with reference to contracts.
The cases upon the construction of statutes are also founded upon an entirely different consideration.
" We may also state that there is no evidence in this case that at the time when the compromise was entered into, either of the parties knew that the 31st of December, 1959 and the 1st of January, 1960, would be holidays.
In these circumstances we think that the deposit made by the respondent on 2 1 1960 was in substance and in effect a deposit made in terms of the compromise decree and that the High Court was right in its conclusion.
We dismiss the appeals but in the circumstances without any order as to costs.
K.B.N. Appeals dismissed.

dataset_name: IN-Abs

summary:
Under a compromise decree the respondent plaintiff agreed to deposit in court the sale amount by January 1, 1960.
December 31, 1959 and January 1, 1960 were holidays.
The respondent made the deposit on January 2, 1960 and sought to enforce his right under the decree compelling the appellant defendant to execute the conveyance.
The appellant filed execution for cost on the basis that the suit stood dismissed as per the provision in the compromise decree on the failure of the respondent lo deposit the amount by January 1, 1960.
, The Court held that the respondent had made the deposit in substantial compliance with the decree.
appeals against this order were also dismissed.
In appeals to this Court it was contended (i) where a party had to perform an act within a certain of by a certain date, the law would not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period; (ii) the executing court had no right to alter or modify the terms of the decree and hold that the deposit made on January 2, 1960 had to be deemed to be a deposit made on January 1, 1960 and (iii) a compromise decree was a contract notwithstanding the fact that an order of court was superadded to it and a provision in a contract that an act had to be done within a certain period or by a particular day by a party was absolute dismissing the appeal.
HELD : (i) The respondent had the right or the liberty to deposit the amount in court till and including January 1, 1960.
That being so, the fact that be did not choose to make the deposit earlier would not affect his right or liberty to deposit the amount in court on January 1, 1960.
[518 F G] Halsbury vol.
37 3rd Edn.
p. 96; Fateh Khan vs Chhajju & Ors., A.I.R. 1931 Lah. 386, referred to.
It is a generally recognised principle of law that parties who are prevented from doing a thing in court on particular day, not by an act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity.
[520 G] Halsbury Vol.
37, 3rd Ed.
p. 97, para 172, Muhammad Jan vs Shiam Lal; I.L.R. XLVI All. 328 (1924); Shooshee Bushan Rtidro vs Gobind Chander Roy, I.L.R. Cal.
XVIII (1891) 231, Sambasiva Chari vs Ramasaini Reddi, I.L.R. 22 Mad.
(1899) 179 and Mayor vs Harding, , referred to.
The present case is concerned with a decree which specifically provided that the respondent should deposit the amount in court.
He had, therefore, no option to pay the same to the appellant [520 C D] Kunj Bihari vs Bitndeshri Prasad, I.L.R. vol.
51, 1929, All.
527, Roshan Lal vs Ganpat Lal.
A.I.R. 1938 All.
, Indal vs Chaudhary 516 Ram Nidh, A.I.R. 33 [1946] oudh.
156 and Rain Kinkar Singh V. Smt.
Kamal Basini Devi, A.I.R. 1938 Pat. 451, distinguished.
Chatlapali Suryaprakasa Rao vs Polisetti Venkataratnam, A.I.R. 1938 Mad.
523, referred to.
(ii)The executing court has the right to construe the decree in the light of the applicable provisions of law, If in this case, on such a construction.
the court found that the deposit made by the respondent on January 2, 1960, was according to law a deposit in compliance with the terms of the decree, then, the executing court was not varying the terms of the decree but executing the decree as it stood.
[522 E] (iii)Although a contract is not the less a contract because it is embodied in a Judge 's order, it is something more than a contract.
Different considerations would apply when a contract is embodied in a Judge ' .; order [523 C] Wentworth vs Bullen, E.L.R. 141 769, Charles Hubert Kinch vs Fdward Keith Walcott, A.I.R. 1929 Journal & P.C. 289, Govind waman vs Murlidhar Shrinivas, A.I.R. 1953 Bom, 412 and Morris vs Barret, E.I.R. 141, 768, referred to.