JUDGMENT Satish Chandra, J. - This execution appeal has been filed by the plaintiff-decreeholder. 2. On 31-5-1951, the plaintiff executed a deed of sale of the house in dispute in favour of the defendant-respondent. The same day, the parties entered into another agreement, whereunder the defendant-respondent agreed to retransfer the house back to the plaintiff on payment of Rs. 1,500/- within 5 years, i.e., by the 30th of May, 1956. In April, 1956, the plaintiff requested the defendant to execute the requisite sale-deed of the house on receipt of Rs. 1,500/-. Some correspondence ensued, where after, the 30h of May, 1956, seems to have been agreed between the parties for the execution of the sale-deed. The plaintiff filed a suit for the specific performance of the contract of sale of 30th May, 1956, on the allegation that the defendant did not come to Agra, as agreed by him, to execute the sale-deed, and praying that the defendant be, by a decree, directed to sell the house. In defence, the agreement to sell was admitted. It was pleaded that the plaintiff had taken the house at a monthly rent of Rs. 11/4/- and a sum of Rs. 652/8/- was payable by him as arrears of rent, but the same had not been paid. It was also pleaded that the plaintiff never had any ready money to pay. 3. On the date of the final hearing of the suit, the defendant gave up most of the pleas. It was stated on his behalf that the plaintiff was entitled to the specific performance of the contract provided he paid. the price, namely Rs. 1,500/-, the balance of the arrears of rent due upto the date of the delivery of possession to the plaintiff, the defendant's cost of the suit and the requisite expenses for the execution of the sale-deed. Thereupon the plaintiff stated that he was agreeable to pay the price, namely Rs. 1,500/-, as also the balance of the arrears of rent due upto the date of the suit at the rate of Rs. 11/4/- per month. He was also prepared to bear the expenses in relation to the execution of the conveyance. He was not prepared to pay the costs of the suit to the defendant. It was stated that the plaintiff was entitled to the costs. 11/4/- per month. He was also prepared to bear the expenses in relation to the execution of the conveyance. He was not prepared to pay the costs of the suit to the defendant. It was stated that the plaintiff was entitled to the costs. It was further stated that the defendant was not entitled to the pendente lite and future rent of the house. In this state of affairs, the trial court held that only two issues required consideration :- "(1) How much money, besides Rs. 1,500/- should the plaintiff pay to the defendant in order to get the reconveyance deed executed ? (2) To what relief, if any, is the Plaintiff entitled ?" 4. The court found that the plaintiff was always ready and willing to pay the requisite money to fulfil his promise. Under the contract, the defendant was not entitled to refuse to execute the sale-deed merely because the rent of the house was in arrears. In spite of it, the plaintiff had informed the defendant that he would pay the amount of rent, which was in arrears. Even on such assurance the defendant did not come to execute the sale-deed. The defendant had committed breach of contract, and so, he had no right to claim the costs of the suit. The plaintiff was entitled to his costs of the suit. The court also held that had the defendant executed the deed of re-conveyance, as agreed upon on 30th May, 1956, the plaintiff would have become the owner of the house. In that event, the defendant would not have been entitled to any rent after that date. Under the circumstances, the defendant was entitled only to the balance of the arrears of rent due upto the (late of the suit. This was calculated at Rs. 630/-. Consequently, on 26th October, 1957, the suit was decreed for specific performance of the contract on payment of Rs. 2,130/-, that is, Rs. 1,500/- as the price and Rs. 630/- as the arrears of rent. The plaintiff was directed to bear the requisite expenses for the execution and registration of the sale-deed. It appears that the plaintiff had already deposited in Court Its. 1,500/-. 5. The defendant filed an appeal (No. 334 of 1957) against the decree dated 26th October, 1957. The appeal was confined to three items-Rs. 630/- as the arrears of rent. The plaintiff was directed to bear the requisite expenses for the execution and registration of the sale-deed. It appears that the plaintiff had already deposited in Court Its. 1,500/-. 5. The defendant filed an appeal (No. 334 of 1957) against the decree dated 26th October, 1957. The appeal was confined to three items-Rs. 180/- as the amount of rent due from 30th May, 1956 to 26th December, 1957, Rs. 311-25 as costs of the suit allowed to the plaintiff, and Rs. 121.50, as costs of the defendant, which had been disallowed by the trial court. The appeal was valued at Rs. 612.75 P. It was prayed that the judgment and decree of the lower court be modified and the appeal be allowed. 6. During the pendency of the appeal, the parties entered into a compromise dated 8-8-1958. It was agreed that if the plaintiff further deposited a sum of Rs. 319/- in the trial court by 15-9-1958, the defendant (who was the appellant there) would get the sale-deed registered by 26-9-1958, and then he would be entitled to receive the sum of Rs. 1,819/-. The expenses regarding the execution and registration of the sale-deed would be borne by the plaintiff. It was also provided in the compromise that in case the plaintiff failed to deposit the money within the stipulated period or he failed to pay the necessary expenses for the execution and registration of the sale-deed on 26-9-1958, the suit would be dismissed. In case the defendant, on his part, failed to execute the sale-deed on 26-9-1958, the sale-deed may be got registered through court. On 8-8-1958, the appeal was decided in terms of the compromise, which was to form part of the decree. Deducting the plaintiff's costs Rs. 311.25 P. from the rent due is Rs. 630/- the balance was Rs. 318.12 P. This was rounded off to Rs. 319/- which the plaintiff had to deposit. 7. The plaintiff-decree-holder actually deposited a sum of Rs. 318/12/- in court. Then he moved an application for the execution of the decree- stating that in spite of the deposit of the requisite money, the defendant had failed to execute the sale-deed. It was prayed that the court should now get the sale-deed executed and registered. 7. The plaintiff-decree-holder actually deposited a sum of Rs. 318/12/- in court. Then he moved an application for the execution of the decree- stating that in spite of the deposit of the requisite money, the defendant had failed to execute the sale-deed. It was prayed that the court should now get the sale-deed executed and registered. At this stage, the defendant appeared and filed an objection, stating that since the plaintiff had failed to deposit the entire amount of Rs. 319/-, the suit stood dismissed in terms of the compromise decree. The decree was, therefore, not executable at the instance of the plaintiff. Thereupon, the plaintiff moved an application praying for the permission of the court to deposit the remaining amount of four Annas. It was stated that the plaintiff's counsel had been suddenly arrested. The file of the case was not traceable. The plaintiff engaged an-other Counsel and gave the papers which were in his possession, namely, the copy of the plaint and the decree, to his new Counsel, and since on a calculation of the amount due, it was found that a sum of Rs. 31812/- was payable, that amount was duly deposited. The newly engaged Counsel did not have the compromise and that is how, by inadvertance, a sum of Rs. -/4/-remained undeposited. 8. The trial court held that neither Section 148 nor Sec., 151, C. P. C. was applicable, and the court had no jurisdiction to extend the time for depositing the balance of Rs. -14/-. The compromise contained a default clause, under which the suit of the plaintiff stood dismissed on his having failed to deposit the agreed amount within the prescribed date. In view of the default clause, the suit stood automatically dismissed. The objection of the defendant was allowed and the plaintiff's applications were dismissed. 9. The plaintiff went up in appeal. The appellate court held that the order of the trial court was under Section 151, C. P. C., because it determined a question as to what shape the decree should take in consequence of the default committed by the plaintiff. The determination of such a question did not fell within Section 47, C. P. C. and an order under Section 151, C. P. C. is not appealable. The appeal filed by the plaintiff-decree-holder was held to be incompetent. The court then went into the merits of the case. The determination of such a question did not fell within Section 47, C. P. C. and an order under Section 151, C. P. C. is not appealable. The appeal filed by the plaintiff-decree-holder was held to be incompetent. The court then went into the merits of the case. It held that the default clause was clear and categorical. It came into operation the moment the decree-holder committed default in depositing the agreed amount. The extent by which the deposit fell short was immaterial. The court had no jurisdiction to extend the time to enable the decree-holder to deposit the balance. The appeal was consequently dismissed. The decree-holder has now come to this Court in Second Appeal. 10. In my opinion, the decision of the trial court fell within the purview of Section 47, C. P. C. The plaintiff had applied to the Court for execution of the sale-deed on the ground that the defendant had failed to do so within the time provided by the compromise decree. That was in substance an application to execute the decree. The defendant's objection was that the decree was not executable because of the default committed by the decree-holder. The determination of this question related to the excitability of the decree. It was clearly within the purview of Section 47, C. P. C. The decision of the trial court was a decree under the provision and was appealable. 11. The finding of the courts below that Section 148 or Section 151, C. P. C. did not enable the court to extend the time fixed by the compromise decree for making the deposit, was perfectly correct and is in accordance with the authorities on the subject. Reference may be made to Jagjit Singh v. Sankatha Singh, 1950 ALJ 424 and Ramdhani Rain v. Shital Prasad Ram, A.I.R. 1959 Patna 181. 12. Mr. S. N. Verma appearing for the appellant raised the following submissions :- (1) The default clause in the compromise decree was, in view of the facts and circumstances of the case, virtually in the nature of a penalty and was consequently not enforceable in view of Section 74 of the Contract Act. (2) The decree-holder had performed his part of the contract; a trivial or trifling defect in the performance would not bring the default clause in operation or discharge the judgment-debtor from his obligations under the decree. (2) The decree-holder had performed his part of the contract; a trivial or trifling defect in the performance would not bring the default clause in operation or discharge the judgment-debtor from his obligations under the decree. (3) The clause that in default of deposit within the prescribed time, the suit shall stand dismissed was outside the purview of the suit as well as the appeal. The compromise decree not having been registered, this part thereof was not enforceable. 13. In my opinion, all the submissions have substance. 14. In respect of the first point, a Full-Bench decision of this Court in Mohiuddin v. Fist. Kashmire Bibi, A.I.R. 1933 Alld. 252 is instructive. There, it was held that Section 74 of the Contract Act applies to a compromise decree and it is open to the court executing such a decree to go behind it so as to interfere with a stipulation by way of penalty contained in the compromise. It was held that a compromise decree has no status higher than that of a contract between the parties, upon which solely it is based. The court, while passing such a decree. has only to find whether the compromise is lawful or not. Thereafter, the court is left with no choice in the matter. An agreement, which contains a penal clause, is not necessarily an unlawful agreement. An agreement. which is otherwise lawful but which contains a penalty clause, would, nonetheless, be entitled to be recorded and the court will have to pass a decree in its term. A compromise decree is not appeal-able; vide Section 96 (3) , C. P. C. Thus, the validity of the compromise decree could only be adjudicated in execution proceedings. It was also held that the provisions of Section 74 of the Contract Act are implied in every contract and so, they would be deemed to be implicit in a compromise decree. 15. Section 74 of the Contract Act enacts :- "If a contract contains any stipulation by way of penalty, the party complaining of the breach is entitled to receive from the party who has broken the contract a reasonable compensation not exceeding the penalty stipulated." 16.The injured party is not entitled to insist on exclusion of its obligations, but only to a reasonable compensation for any loss or damage it may have suffered. This rule being implicit in every contract and in every decree based on a compromise, the execution court can see whether any clause was by way of penalty and, if so, to relieve a party from it. 17. A clause would be by way of penalty if it entitles a party to something which he would not have been otherwise entitled to at all in the suit. In the present case, the defendant-judgment-debtor would never have been entitled to the dismissal of the suit for specific performance of the contract of sale. That plea had been given up at the final hearing of the suit. In appeal, the decree granting specific performance of the contract was not challenged. The clause that if the plaintiff failed to deposit the requisite money within the prescribed time, the suit was to stand dismissed, was, in my opinion, a clause in the nature of penalty in so far as it provided for the dismissal of the suit for specific performance of the con-tract. It would not be enforceable as such. The defendant-judgment-debtor as the injured party would only be entitled to such compensation as would recompense him for any damage or loss that he may have suffered by reason of the breach. Here the breach consisted of non-deposit of Rs. -/4/-by 15th September, 1958. The plaintiff-decree-holder was always willing to deposit this amount. He actually made an application for permission to deposit the same. The defendant-judgment-debtor was, under the agreement, not entitled to the payment of the price till he had registered the sale-deed. Admittedly, he had never done that. Consequently, he did not suffer any loss or damage by reason of the deposit in court being deficient by four Annas. In the peculiar circumstances of the case, it could not be said that the judgment-debtor was entitled to any amount by way of compensation for the imprecise performance of his part of the contract by the plaintiff-decree-holder. 18. The compromise decree admittedly was not registered. Section 17 of the Registration Act. 1908, deals with the documents of which the registration is compulsory. Clause (b) of sub-sec. (1) of Section 17 mentions non-testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, to or in any immoveable property. Sub-sec. Section 17 of the Registration Act. 1908, deals with the documents of which the registration is compulsory. Clause (b) of sub-sec. (1) of Section 17 mentions non-testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, to or in any immoveable property. Sub-sec. (2) provides that nothing in clauses (b) and (c) of sub-sec. (1) applies to the documents mentioned therein. Clause (VI) of sub-sec. (2) deals with decrees or orders of a court. It states :- "(VI). Any decree or order of a. Court except a decree or order expressed to be made on a compromise comprising immoveable property other than that which is the subject-matter of the suit or proceeding; or". 19. So, a decree or order made on a compromise and comprising immoveable property other than that which is the subject-matter of the suit or proceeding would require registration if it is covered by Clause (b) . The compromise decree did purport to declare the right and interest of the parties in the house in dispute which was an immoveable property and which was admittedly of the value of more than Rs. 100/-. Clause (b) was, therefore, clearly applicable. The decree was on a compromise. The question would be whether it comprises immoveable property which is not the subject-matter of the suit or proceeding. In the trial court, the contest to the plaintiff's right to specific performance of the contract of sale of the house was given up at the date of the hearing of the suit. The defendant required adjudication of the court only on the question whether he was entitled to arrears of rent after the date of the suit and costs of the suit. The right to purchase the immoveable property was outside the purview of the suit. In the appeal filed by the defendant, he wanted a decree for recovery of Rs. 612.75 P. The decree for specific performance of the contract of sale was not challenged. Consequently, the right, title or interest in the house in dispute was not the subject-matter of the appeal either. But the compromise decree provided that if the plaintiff committed default in making the deposit within the prescribed time or in filing the requisite stamp, the suit shall stand dismissed. Consequently, the right, title or interest in the house in dispute was not the subject-matter of the appeal either. But the compromise decree provided that if the plaintiff committed default in making the deposit within the prescribed time or in filing the requisite stamp, the suit shall stand dismissed. That meant that the plaintiff's suit in relation to the right of specific performance of the contract of sale would also stand dismissed. This was outside the purview of the appeal. Since this clause in the compromise affected the rights to the house in dispute, which was not the subject-matter of the appeal, this part of the decree did comprise immoveable property other than that which was the subject-matter of the proceeding in which the decree was passed. Consequently, it was within the exception mentioned in Clause (VI) . The part of the decree not having been registered, and being outside the purview of the appeal, would not affect the rights of the parties, nor would it be enforceable in any manner. The judgment-debtor, therefore, could not rely upon the default clause. He could not plead that because the plaintiff had not deposited the entire amount by 15th September, 1958, the suit stood dismissed and consequently, the decree of the trial court was no longer executable. 20. The next question is as to the effect of the alleged non-compliance of the clause requiring the plaintiff to deposit a sum of Rs. 319/- by 15th September, 1958. The courts in India are courts of law as well as of equity. It is settled that the courts of equity in England have treated stipulations in contracts as to time, as not of the essence of the contract, unless it was expressly made so or the nature or structure of the contract implied that the real intention of the parties was to make time the essence of the contract. In Fry on Specific Performance (5th Edition Page 528 Paragraph 1077) , it has been stated :- "In order to render time thus essential it must be clearly and expressly stipulated, and must also have been really contemplated and intended by the parties that it shall be so. It is not enough that a time is merely. mentioned during which or before which something shall be done." 21. In the present case, the compromise merely provided that the decree-holder would deposit a sum of Rs. It is not enough that a time is merely. mentioned during which or before which something shall be done." 21. In the present case, the compromise merely provided that the decree-holder would deposit a sum of Rs. 319/- by 15-9-1958 whereafter the judgment-debtor would execute the deed by 26-9-1958. There is no express stipulation in the compromise that time would be of the essence in all respects. The fact that the plaintiff's right to a sale deed was really not questioned; the fact that the plaintiff had deposited a major part of the purchase money, namely, Rs. 1,500/-, prior to the compromise and the further fact that the compromise contemplated that the judgment-debtor would be entitled to the purchase money only after he had registered the sale-deed, coupled with the conduct of the judgment-debtor himself that he did not on the expiry of the prescribed time either informed the plaintiff or the court that he treated the contract as having come to an end; all go to show that the parties really never intended that the term as to time was really the object and consideration for the compromise and so, was of the essence of the contract. Courts of equity have always held 'that the breach of a term which is not of the essence could not be insisted upon as a bar to the enforcement of the right of the party in default. The aggrieved party was, on the other hand to be recompensed for the loss or damage he might have suffered by reason of the default or delay. Here, out of the sum of Rs. 1,819/-, the plaintiff had deposited Rs. 1,818/12/-. A microscopic proportion of the total amount remained to be deposited. There is no evidence that the judgment-debtor suffered any loss or damage by reason of this discrepancy. This would certainly be a fit case, where a trivial incompleteness in the performance of his side of the contract by the plaintiff would not disentitle him from enforcing his right under the decree. 22. But assuming that the term as to the time was of the essence of the contract, the position would be the same. In Chitty on Contracts (22nd Edition Volume I) , this matter has been dealt with in Chapter 23, which relates to discharge by breach. 22. But assuming that the term as to the time was of the essence of the contract, the position would be the same. In Chitty on Contracts (22nd Edition Volume I) , this matter has been dealt with in Chapter 23, which relates to discharge by breach. A contract can be discharged by renunciation by the party in default or by his making the performance impossible or by his failing to perform the contract. 'While dealing with discharge of a contract by failure of the performance, the learned author states in paragraph 1272 (at page 1270) :- "An exception exists where one party has substantially performed the act which he has bound himself to do. Even though the contract may be one which is entire and indivisible, a trivial departure from the exact performance of a condition precedent will not discharge the promiser from his liability under the agreement." 23. The same matter is dealt with in that book at page 1450 in paragraph 1451 under the heading- 'Breach of Essential Term'. It has been stated :- "If the plaintiff breaks an essential term 9f the agreement, he will be deprived of his right to specific performance, but this principle does not extend to trivial breaches." 24. Thus, a trivial breach of even an essential term of the agreement does not work to deprive the defaulting party of his right to specific performance. 25. The matter has also been dealt with in Anson's Principles of the English Law of Contract (21st Edition). In Chapter XIII at pages 406 and 407, it has been stated :- "The general rule is that performance must be precise and exact. If there is the slightest deviation from the terms of the contract, the party not in default will be entitled to sue for damages, or, in certain cases, to elect to treat the contract as discharged....the only qualification would seem to be that where deviation is microscopic, the contract must be taken to have been correctly performed, for de minimis no curat lex." 26. This statement of law was based upon the observation of Lord Atkin in the case of Arcos Ltd. v. E.A. Renaasen & Som, 1933 AC 470 at p. 479. In that case, it was contended that in all commercial contracts, the question is whether there is substantial compliance with the contract. There always must be some margin. This statement of law was based upon the observation of Lord Atkin in the case of Arcos Ltd. v. E.A. Renaasen & Som, 1933 AC 470 at p. 479. In that case, it was contended that in all commercial contracts, the question is whether there is substantial compliance with the contract. There always must be some margin. His lordship did not agree with this proposition. He observed that 'a ton does not mean about a ton or a yard about a yard'. He then observed that 'no doubt, there will be miscroscopic deviation which businessmen and therefore lawyers will ignore'. On the question of a discharge of a contract by failure of performance, Anson at page 417 states :- "But one of the parties may claim that though he has broken the promise wholly or in part, yet his breach does not entitle the other to rescind the contract and to regard himself as discharged from his own liabilities under it. In order to determine that it is so, it is necessary to ask two questions: (1) whether performance of his promise by the party injured was conditional upon the performance of the promise by the party in default, and (2) whether the promise of the party in default was divisible in the sense that something less than complete performance will suffice." 27. In the present case, it can be said that performance of his promise by the judgment-debtor was conditional upon the performance of his promise by the plaintiff-decree-holder who was in default. But then is the second condition fulfilled ? In respect of the second condition, Anson points out at page 420 that one relevant question, which is also material to be considered, is whether the conduct of the party in default, when viewed against the background of the contract and its purpose, in such that it shows an intention no longer to be bound. That is to say, did the party in default by his conduct show an intention to repudiate or renounce the contract ? That certainly cannot be said of the plaintiff-decree-holder in the present case. He was, right from the very beginning, keen to purchase the house. The deficiency of four Annas has been held to be due to inadvertence, and not intentional. In this connection, the degree of non-performance gains importance. That certainly cannot be said of the plaintiff-decree-holder in the present case. He was, right from the very beginning, keen to purchase the house. The deficiency of four Annas has been held to be due to inadvertence, and not intentional. In this connection, the degree of non-performance gains importance. At page 422, Anson states :- "We have already seen that performance of a contract must be precise and exact, and...that where..... one party's promise is made conditional on complete and entire performance by the other, the party in default cannot recover anything if he incompletely performs his side of the contract. But this rule, if rigorously applied, would be productive of great injustice. It would be hard to contend, for example, that even the most trivial defect in the quality of goods sold, and some momentary slip or inefficiency on the part of a servant, should entitle the 'injured' party to treat the contract as discharged.... In these cases, therefore, the law provides that if the contract is substantially performed, the injured party cannot treat himself as discharged although he will have a right of action for any damage which he may have sustained by reason of the incomplete performance." 28. Thus, a trivial or trifling deviation or a microscopic deficiency in the performance of the duty by the party in default would not entitle the injured party to claim a right to treat the contract as discharged. He will nonetheless be liable to carry out his part of the promise. In view of this state of law, the plaintiff-decree-holder would be treated as having performed his part of the promise substantially enough to call upon the defendant-judgment-debtor to carry out his promise. The judgment-debtor refused to do so. Under the circumstances, the plaintiff-decree-holder was entitled to the execution of the decree for specific performance through court. 29. In the result, the appeal succeeds and is allowed. The decree of the court below is set aside. The objection of the judgment-debtor is dismissed. The execution court will now proceed to execute the decree for specific performance in favour of the plaintiff according to law. In view of the peculiar circumstances of the case, the parties will, however, bear their own costs in all courts.