JUDGMENT : 1. Plaintiffs have claimed decree for Rs.1,66,63,07,750/- and consequential relief’s. This is their second suit. In their earlier suit no.454 of 1993 (Saloo Chowdhury & Anr. vs Guinness Publishing Ltd. & Ors.), they had claimed aggregate Rs.36,32,50,000/- as well as injunctions and consequential relief’s. First suit was compromised on terms of settlement being those reproduced below: "1.The defendant no.1, Guinness Publishing Limited agrees and undertakes to recognize and publish the plaintiffs, namely, Saloo Choudhury and Mrs. Neena Choudhury as the first and fastest man and woman to have circumnavigated the Earth by Car covering six continents under the applicable Rules in 1989 and 1991 in all future editions of "The Guinness Book of Records" published by Guinness Publishing Limited. 2. The plaintiff no.1, Saloo Choudhury will make his expert services available and use his best endeavour to ensure the global success of the proposed Guinness Book of Records, Milenium Challenge and the proposed Choudhury Trophy. 3. Saloo Choudhury will advise and counsel Guinness Publishing Limited for the period up to 1 July, 2000 and in connection therewith Guinness Publishing Limited shall reimburse all mutually agreed expenses that may be incurred by Saloo Choudhury. 4. All interim orders passed in the suit are vacated. 5. The plaintiffs do not claim any further reliefs against the other defendants and the suit against the other defendants will stand dismissed. 6. The parties will bear and pay their respective costs." 2. They have since been acknowledged by defendant to be first and fastest to circumnavigate the globe by car, covering six continents. A co-ordinate Bench had framed following issues on 29th April, 2014. (1) Is the suit barred by Resjudicata, Estoppel and Acquiescence and/or principles analogous thereto? (2) Is the claim in the suit barred by limitation? (3) Did the defendant commit breach of any term of the consent decree dated 2nd July, 1998 passed in the earlier suit between the same parties being suit No.454 of 1993? (4) Did the defendant agree to hold and sponsor the circumnavigation race to be termed as Guinness Book of Records Millennium Challenge subsequently renamed as Challenge 2000 and award Choudhury Trophy to the winner of such race? 5) Did the parties enter into any agreement dated 7th April, 1998 limiting expenses to be incurred by the plaintiffs USD 1,00,000 as alleged in paragraph 34 of the written statement? 5) Did the parties enter into any agreement dated 7th April, 1998 limiting expenses to be incurred by the plaintiffs USD 1,00,000 as alleged in paragraph 34 of the written statement? (6) Did the defendant refund entry fee of USD 11,500 to the plaintiffs as alleged in paragraph 36 of the Written Statement? (7) Are the plaintiffs entitled to Rs.30,00,00,000/- as loss and damage allegedly suffered in giving up various engagements? (8) Are the plaintiffs entitled to Rs.36,32,50,000/- as alleged compensation which was claimed in suit No.454 of 1993? (9) Are the plaintiffs entitled to Rs.1,00,00,00,000/- for loss and damage allegedly suffered on account of loss of goodwill and reputation? (10) To what relief, if any, are the plaintiffs entitled? 3. Proposed Guinness Book of Records Milenium Challenge was not held. Hence, this second suit. Trial of this suit took place before several co-ordinate Benches. After witnesses were examined, the suit came to be heard by this Bench. Defendant on having produced its evidence, first addressed Court on arguments. 4. Mr. Mookherjee submitted, at best, claims in this suit can be said to arise from alleged breach of those terms. He proceeded to argue on the issues. He demonstrated that defendant no.1 had agreed to be reimbursed for his expenses at a sum fixed at US$ 1,00,000/-. He referred to exhibits 12 and 15, which are a Memorandum of Understanding and, what his client termed, a side letter, together to be agreement between parties regarding the sum fixed and payment of it to defendant no.1, in instalments. He referred to exhibits 13A, 14 and 16 to demonstrate, payments were made as was agreed between parties in the prior suit and subsequently, for performance of such terms. He also referred to answers of plaintiff no.1 given to question nos. 187 to 206 and 256 to 261 in cross-examination. He then made submissions regarding issue no.6, that the defendant refunded entry fee of US$ 11,500/- to plaintiffs. He referred to exhibits 17 and 18, latter being a document to show payment made of a sum of UK £6,879.86, by cheque dated 12th June, 2000, drawn in favour of plaintiff no.1 by or on behalf of Atkinson Courage Limited, who, he submitted, was event manager appointed by his client. He submitted further, exhibit 17 is a document produced by plaintiff no.1 from the box. He submitted further, exhibit 17 is a document produced by plaintiff no.1 from the box. Said document is a statement at closing date 22nd July, 2000, in which the witness had indicated entry made on 26th June, 2000 to show, a sum of US$10,130.59/-, corresponding to the payment made by cheque evidenced by exhibit 18, was credited to his account. 5. The suit is also barred by res judicata since there was consent decree between the parties, which attained finality. He relied on judgments reported in AIR 1954 SC 352 (Shankar Sitaram Sontakke versus Balkrishna Sitaram Sontakke), paragraph 9; (1992) 1 SCC 31 (Byram Pestonji Gariwala versus Union Bank of India), paragraphs 28, 41-44 and AIR 1965 SC 1153 [Gulabchand Chhotalal Parikh versus State of Bombay (Now Gujarat)], paragraph 35. He also relied on sub-section (2) of section 2 and explanation (V) under section 11 in Code of Civil Procedure (CPC). Regarding issue no.7, Mr. Mookherjee submitted, plaint case is not for claim on loss of sponsorship. Evidence adduced does not have foundation in pleadings. Such evidence, therefore, is contrary to pleadings. For this proposition he relied on judgments of Supreme Court in Janak Dulari Devi vs Kapildeo Rai reported in (2011) 6 SCC 555 , paragraph 9 and Ramesh Kumar vs Furu Ram reported in (2011) 8 SCC 613 , paragraph 32 and 33. 6. On issue nos. 3, 4 and 8, Mr. Mookherjee submitted, first term in the terms of settlement stood complied with by his client. According to him there should be finding in favour of defendant on these issues. Guinness Book of Records, Milenium Challenge and Choudhury Trophy were in respect of a proposed race, to be held. Evidence is on record to show, sponsor withdrew. Another sponsor could not be found. Hence, the proposal to hold the race could not be carried through. It was a proposal as opposed to an agreed term. His client acted bona fide but unfortunately, the race could not be held. Evidence is on record to show, sponsor withdrew. Another sponsor could not be found. Hence, the proposal to hold the race could not be carried through. It was a proposal as opposed to an agreed term. His client acted bona fide but unfortunately, the race could not be held. He relied on several decisions as are noted below: (i) Thawardas Pherumal versus Union of India reported in AIR 1955 SC 468 , in particular paragraph 27 to submit, one sided hopes of a party to an agreement cannot be taken to be the contractual terms; (ii) Draupadi Devi versus Union of India reported in (2004) 11 SCC 425 , in particular 79 to submit, the declaration of law by Supreme Court to be, burden of establishing that plaintiff had sustained damages and the measure of damages, was squarely on plaintiff. Lack of pleadings and evidence on part of plaintiff would cause his claim to fail; (iii) Union of India versus Inland Construction Company reported in 2011(4) CHN (CAL) 298, in particular paragraphs 23 to 26 to submit, apart from there being drawn a distinction between cases where difficulties are due to uncertainty as to the causation of damages, where questions of remoteness arise and cases where they are due to the fact that assessment of damages cannot be made with any mathematical accuracy, even then burden of establishing damages having been sustained must be discharged, which was not discharged by plaintiff; (iv) Rabindra Nath Roy Chowdhury Versus Dhirendra Nath Roy Chowdhury reported in 43 CWN 1007; Hari Ravji Chiplunkar versus Shapurji Hormasji Shet reported in ILR 10 Bombay 461 and Sadananda Saha versus Union of India reported in AIR 1956 CAL 317 , to submit, a suit seeking damages for alleged breach of terms of compromise decree is barred under section 47 CPC. Mr. Pradip Ghosh, learned senior advocate appeared on behalf of plaintiffs. Referring to terms of settlement, being part of the decree in earlier suit, he relied on the second term. He submitted, there can be no dispute that the race was agreed to be held. Guinness had said, as a term of settlement, it would hold the race. He referred to defendant's disclosure, appearing at page 703 in Judges brief of documents and exhibit M, being communication made on 20th March, 2001 to plaintiff no.1, to submit, sponsorship was by "The Guinness Book of Records". Guinness had said, as a term of settlement, it would hold the race. He referred to defendant's disclosure, appearing at page 703 in Judges brief of documents and exhibit M, being communication made on 20th March, 2001 to plaintiff no.1, to submit, sponsorship was by "The Guinness Book of Records". Two paragraphs from exhibit M are reproduced below: "In early 2000 we came very close to securing an attractive deal with General Motors. Sadly in February, GM pulled out of the negotiations at a time when there were no other avenues open to us. Simultaneously our client, Guinness World Records, having invested a significant amount of money and resources into developing the event with us decided - for very good reasons - that they were no longer prepared to fund further development. Since that time Guinness World Records has seen many significant senior management changes to support a completely new business strategy within which the Guinness World Records Road Challenge would not have been an appropriate event. Our main contacts, Chris Irwin and Malcolm Roughead are no longer with the company." Exhibit V is minutes of meeting of Board of Directors, Guinness Publishing Ltd., held on 17th February, 1998. He referred to that part in the minutes relating to the company's interest in India. It would be sufficient to extract following from said minutes: "CAS confirmed that, whilst it would not be acceptable for the GUINNESS brand itself to be associated with sponsorship of such a driving event, he could foresee no Group objection to sponsorship by THE GUINNESS BOOK OF RECORDS" He pointed out, there was record of agreement regarding obtaining a detailed evaluation of the project, for discussion with his clients. He then referred to exhibit 12, which is Memorandum of Understanding dated 7th April, 1998. He submitted, this memorandum was pursuant to said minutes and agreement contained therein, to become a term of settlement in his clients' earlier suit. Race was to be held. It was not a proposal for holding race but that it would be held, as proposed to be held on a future date. There can be no doubt regarding who was to sponsor the race. Race was to be held. It was not a proposal for holding race but that it would be held, as proposed to be held on a future date. There can be no doubt regarding who was to sponsor the race. In that context, he relied on paragraph 37 in plaint where plaintiffs' alleged, defendant had decided "for very good reasons" that they were no longer prepared to fund the event, inter alia, because of change in senior management and a changed business strategy and as such the event would not be an appropriate event. He demonstrated from paragraph 39 in written statement, these allegations stand admitted as not specifically dealt with, required by rule 5 in order 8, CPC. Referring to paragraph 44 in plaint and claim (e), he submitted, said claim stood settled by relevant term in terms of settlement, regarding holding the race. Defendant deliberately not having held the race, is in breach of the term. Hence, plaintiffs are entitled to decree for said claim. Defendant's argument based on section 47 CPC, that suit is barred, cannot be by said provision as interpreted in Rabindra Nath Roy Chowdhury (supra). In that case specific performance of contract was sought by subsequent suit to compel grant of mourashi lease in respect of 8 annas share of estate being subject matter of first suit. Hence, claim in the case to compel performance of compromise suit by granting lease, agreed to be granted in first suit, became a question of execution of decree in that suit and thus barred from being agitated by subsequent suit. Facts in his clients' this suit are distinguishable from subsequent suit in that case. Points of compromise relating to proposed race were not subject matter of his clients' earlier suit. There was no contemplation of holding such a race, as would appear from pleadings in first suit. Thus, the term of compromise in first suit cannot be said to become an integral part of the adjustment of claim in that suit. Referring to the terms, he submitted, claims for injunction have been complied with by defendant. Monetary claim in first suit was given up by his client as forbearance consideration for compromise on holding proposed race, which did not have any connection with subject matter of that suit. Mr. Ghosh next relied on judgment of Division Bench, High Court of Patna in Jagdish Chandra Vs. Monetary claim in first suit was given up by his client as forbearance consideration for compromise on holding proposed race, which did not have any connection with subject matter of that suit. Mr. Ghosh next relied on judgment of Division Bench, High Court of Patna in Jagdish Chandra Vs. Kameshwar Singh reported in AIR 1953 Patna 178. He relied on paragraphs 1 to 5, for facts in that case and paragraphs 9 to 13 on views expressed. He submitted, a view expressed was, if section 47CPC applies to the case then, of course, the suit is barred also because of the rule of res judicata. He submitted, reference was made in the judgment to order XXIII rule 3, for a lawful agreement of compromise of suit to be in respect of whole or any part of subject matter of the suit. In the judgment, legal position, in regard to effect of compromise decrees, which embody terms of agreement relating to matters forming subject matter of the suit and matters beyond the subject matter of the suit, have been referred to as enunciated in the well known decision of Privy Council in Hemanta Kumari Debi Vs. Midnapur Zamindari Co. reported in AIR 1919 P.C. 79 . He reiterated, plaintiffs' claims in this suit were not subject matter of the earlier suit. He pointed out, the Division Bench had taken pains to go into background of the case on facts, in expressing views, including regarding the compromise not being subject matter of the suit it compromised, for same to be barred from being urged in subsequent suit. With regard to judgment of Supreme Court in Shankar Sitaram (supra) he relied on paragraphs 2 and 3 therein to demonstrate facts in that case to be, brothers engaged in various businesses had compromised the suit of 1945 on 7th March, 1946 agreeing, inter alia, each was to take 1/6th share in cash balance as found on 31st March, 1946, upon examination of accounts of the businesses, from 1st April, 1942 upto 31st March, 1946 and that plaintiff in subsequent suit had also obtained, by that settlement, consideration for his 1/6th share in motor- bus garage business from the brothers who were carrying on with it, to hold that plaintiff's subsequent suit for accounts of period commencing 1st April, 1946 was barred by res judicata. He submitted, this judgment is thus distinguished on facts. He submitted, this judgment is thus distinguished on facts. Here too Supreme Court went into background of the case on facts to find on res judicata. Same is to be done here. On Gulabchand (supra) he relied on paragraphs 8, 13 and 15 to submit, the High Court had dismissed the writ petition of appellant, whereby he had claimed discharge, as surety for contractors to fell timber. Appellant then had filed suit giving rise to the appeal before Supreme Court, for it to find same barred by res judicata. He submitted, paragraphs 34 and 35 were relied upon on behalf of defendant. Those paragraphs are of academic interest, being regarding evolution of doctrine of res judicata. Supreme Court in its very recent judgment in Canara Bank Vs. N.G. Subbaraya Setty reported in AIR 2018 SC 3395 , has traced the evolution from Roman Law and before that, Hindu Texts. He moved on to question of damages as compensation on breach of term of settlement committed by defendant. He referred, inter alia, to paragraph 44 of plaint. He submitted, there is clear notice of case, that his clients gave up claim of Rs.36,32,50,000/- in earlier suit on inducement of defendant that it would sponsor, conduct and hold race, Challenge 2000 on it having agreed as a term in settlement to do so, but did not. As such, his clients are entitled to compensation of said amount. He drew attention to paragraph 50 in written statement. He submitted, there is bare denial of said case on omission of defendant to urge its case for agreeing to such a term. Thus there is admission of measure of damages and there should be a decree for the sum in favour of his client. He submitted, proof of measure of damages is on admission by pleadings. He relied on view taken by a learned single Judge of Delhi High Court in Rajiv Salujia v. Bhartia Industries Limited reported in AIR 2003 Delhi 142, based on observations made by Supreme Court in Badat & Company v. East India Trading Company reported in AIR 1964 SC 538 . He relied on view taken by a learned single Judge of Delhi High Court in Rajiv Salujia v. Bhartia Industries Limited reported in AIR 2003 Delhi 142, based on observations made by Supreme Court in Badat & Company v. East India Trading Company reported in AIR 1964 SC 538 . He then submitted on law declared by Supreme Court regarding breach of contract, in Naihati Jute Mills Ltd. v. Hyaliram Jagannath reported in AIR 1968 SC 522 , to paragraph 10 where it was said, inter alia, that:-, "Courts have no general power to absolve a party from the performance of his part of the contract merely because its performance has become onerous on account of enforcing turn of events". 7. Said Court relied on its earlier decision in Prasad & Sons Ltd. v. The Union of India reported in AIR 1960 SC 588 , at page 594. He then relied on an English case, Victoria Laundry (Windsor) Ld. v. Newman Industries Ld. reported in (1949) 2 King's Bench Division 528, to part of the report appearing in page 537, extracted below. "Three of the authorities call for more detailed examination. First comes Hadley v. Baxendale (I) itself. Familiar though it is, we should first recall the memorable sentence in which the main principles laid down in this case are enshrined: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." The limb of this sentence pre-faced by "either" embodies the so-called "first" rule ; that prefaced by "or" the "second". The English case The Haron II dealt with, inter alia, Victoria Laundry (Windsor) Ld. (supra) on question of award of remote damages on basis of knowledge imputed. He relied on another English case Attorney General v. Blake (Jonathan Cope Ltd., third party), reported in (2000) 4 AER 385. He submitted, by this decision House of Lords considered measure of damages on breach of contract or obligation other than commercial contract. (supra) on question of award of remote damages on basis of knowledge imputed. He relied on another English case Attorney General v. Blake (Jonathan Cope Ltd., third party), reported in (2000) 4 AER 385. He submitted, by this decision House of Lords considered measure of damages on breach of contract or obligation other than commercial contract. Next he relied on a passage in Adam Haji Peera Mohamed Ishack versus Sekavath Hussain Akbari reported in AIR 1923 Madras 103. To apply latter part of section 73, Contract Act, 1872, the parties, that is, not only plaintiffs but defendant also are to have known, when the contract was made, loss suffered on breach of it was a likely result. According to him, in this case defendant knew plaintiffs had adjusted their claim for the term of settlement of holding proposed race and on breach of it, the claim forgone on adjustment, would be lost. He submitted, this is applicable to the first part as well. On defendant not having held the race, plaintiff lost the sum, which they had claimed in earlier suit, as adjusted by way of consideration for settlement. He relied on English decision in East Ham Borough Council Vs. Bernard Sunley & Sons, Ltd., reported in (1965) 3 AER 619, in particular to speech of Lord Pearson. He placed placitum (G) onwards from page 640 to submit, it is sufficient for his client to show that the loss was liable to result. This liable or likely result stands proved on it being a serious possibility, as of a real danger, as being on the cards consequent of breach. That the result would be applicable to both rules and, in context of section 73, both parts, is what was expressed in this speech. On admission he relied on judgment of Supreme Court in Basant Singh Vs. Janki Singh, reported in 1967 SC 341, paragraphs 4 and 5. He submitted, there is admission by pleadings, which is good proof. He relied on judgment of Supreme Court in Bharat Singh Vs. Bhagirathi reported in AIR 1966 SC 405 , to paragraph 19. He submitted, Supreme Court declared admissions to be substantive evidence, in view of sections 17 and 21 of Indian Evidence Act, 1872. He distinguished cases relied upon by defendant. On Janak Dulari Devi (supra), he submitted, this decision is not applicable. Bhagirathi reported in AIR 1966 SC 405 , to paragraph 19. He submitted, Supreme Court declared admissions to be substantive evidence, in view of sections 17 and 21 of Indian Evidence Act, 1872. He distinguished cases relied upon by defendant. On Janak Dulari Devi (supra), he submitted, this decision is not applicable. His client's case in plaint is also of consideration for settlement. Same stands proved on admission by there being no specific denial thereto in written statement. He reiterated, admissions are substantive evidence. Regarding Ramesh Kumar (supra), he submitted, adjudication on acceptance of evidence, was on finding three different versions, as appearing from written statement, oral and documentary evidence. This judgment too does not have any application to his clients' case. Lastly he dealt with judgment of a learned single Judge of this Court in Union of India Vs. Inland Construction Company reported in 2011 (4) CHN (Cal) 298. He submitted, on behalf of defendant reliance was placed on paragraphs 23 to 26 in the judgment. In paragraph 25 there is extract of earlier judgment of this Court in Gambhirmull Mahabirprasad Vs. The Indian Bank Ltd. reported in AIR 1963 Cal 163 . He cited the judgment on paragraphs 66 and 68 to submit, where some degree of damages have been proved, nominal damage should not be decreed on reason of remoteness or difficulty to prove. In that case there was finding of difference in price, which could not be obliterated because freight and other charges were not proved. In Gambhirmull Mahabirprasad (supra) yet earlier case of A. V. Joseph Vs. R. Shew Bux reported in AIR 1918 Privy Council 149 was relied upon. In A. V. Joseph (supra) their Lordships recommended decree for sum of gross profits less Court assessed freight charges, against decree of nominal damages by impugned judgment. In reply Mr. Mookherjee drew attention to amendment in provision made by order XXIII rule 3 CPC. Relied upon amendment is regarding agreement relating to parties to the suit, whether or not subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit as would make a distinction against application of Jagdish Chandra (supra) for plaintiffs to run their case of breach of contract of an agreement, not subject matter of their earlier suit. He relied on judgment of a learned single Judge of Orissa High Court in Shyam Sundar Chaudhury vs. Judhistir Jena reported in AIR 1983 Orissa 187, paragraph 4 where the learned Judge said, inter alia, "... Prior to the amendment there was a conflict of decisions as to whether the Executing Court could refuse to execute the decree where it gave effect to the terms of a compromise which did not relate to the suit. But after the amendment the position has been clarified and such a decree will now be executable. ..." 8. On the question he also relied on view expressed by a learned single Judge of this Court by judgment dated 28th September, 2011 in GA 2239 of 2007 with CS 486 of 1991 (Khem Chand Dhingra & Anr. vs. Prabir Roy Chowdhury & Ors.). He relied on that in the judgment, extracted below : "Before the amending Act of 1976 the scope under Order 23 Rule 3 was limited to such compromise which relates to the subject matter of the suit but by amendment Act of 1976 the provision under Order 23 Rule 3 have undergone a sea change which envisage that compromise can be effected in respect of a subject matter not similar to the subject-matter of the suit." 9. He then relied on judgment of Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh and Others reported in (2006) 5 SCC 566 , paragraphs 18 and 19. On query from Court regarding definition of 'decree' given in sub-section (2) of section 2 in CPC he submitted, the definitions section says, in the Act, unless there is anything repugnant in the subject or context, the definition would be as given there. Definition given of decree is Court's expression, conclusively determining rights of the parties with regard to all or any of the matters in controversy in the suit. This expression must be on adjudication. Present provision in rule 3 of order XXIII does not contemplate adjudication and, therefore, is repugnant to the definition given. 10. He referred to section 51 and rule 32 in order 21 CPC to demonstrate that a party having had had his suit adjusted on compromise and decree obtained, on disobedience of the decree, including one relating to specific performance or mandatory injunction, the party had resort to provisions in levying execution so as to not leave such a party remediless. He referred to section 51 and rule 32 in order 21 CPC to demonstrate that a party having had had his suit adjusted on compromise and decree obtained, on disobedience of the decree, including one relating to specific performance or mandatory injunction, the party had resort to provisions in levying execution so as to not leave such a party remediless. 11. On issue nos. 2, 3 and 4 he submitted, he had made his submissions on merit, regarding facts, in his argument at the beginning. In event Court finds that the suit is barred by reason of claim of plaintiffs being a question in execution, then whether or not disobedience was committed would be for executing Court to decide. He submitted, of issues no. 7, 8 and 9, only issue no. 8 was urged by plaintiffs for decision. He pointed out significance of issue no. 8 in the context of rules 3 and 5 of order 8 CPC to submit, there can be no proof of damages by admission in pleadings. 12. He submitted, the English cases cited on interpretation of two limbs that give rise to claims for damages are decisions, with which he has no quarrel. These two limbs are codified in section 73 of Contract Act, 1872. He drew attention to Blake (supra) to submit, that was a case where just response to breach found was in directing account of profits. Measure for damages has to relate to loss suffered and cannot be a measure of what some one else has profited. Even the case East Ham Borough Council (supra) does not dispense with proof of damages. He pointed out, judgments of Supreme Court reported in Basant Singh (supra) and Bharat Singh (supra) do not relate to admission on measure of damages. Referring to Gambhirmull (supra) he submitted, there was evidence laid. Interpretation of that case by later decisions must be in that context. 13. He then relied on judgment of Supreme Court in Kailash Nath Associates Vs. Referring to Gambhirmull (supra) he submitted, there was evidence laid. Interpretation of that case by later decisions must be in that context. 13. He then relied on judgment of Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority reported in (2015) 4 SCC 136 , to paragraphs 32, 33, 35 and 43 to submit, even though section 74 provides for situation where it says whether or not actual damage or loss is proved to have been caused by breach, Supreme Court has declared law to be that reasonable damages must be proved for decree on damages, capped at what parties had stipulated in the contract. 14. Since submissions regarding amendment made to order XXIII in CPC were made for the first time in reply on arguments, Court gave opportunity to plaintiffs to respond thereto. Mr. Ghosh relied on Shyam Sundar Chaudhury (supra) to emphasise, the decision expressed view that the amendment was clarificatory. There thus could not be any change in the position of law interpreted and expressed in earlier judgments. It only resolved conflict of views by clarification. On Pushpa Devi Bhagat (supra) he submitted, the second point that was dealt with in paragraphs 18 and 19, relied upon by Mr. Mookherjee, was whether the compromise was a valid compromise under order XXIII rule 3 CPC. In answering the point Supreme Court took into account clarification made by the amendment. He then relied on view expressed by a learned single Judge of Delhi High Court in Rajiv Saluja Vs. Bhartia Industries Ltd. reported in 2002 (64) DRJ 569 [decided on 7th May, 2002], paragraphs 9 and 10 to emphasise, his client had specifically pleaded in plaint, consideration by forbearance of not pressing with claim for term of agreement in the compromise as not relating to the suit, regarding proposed race. According to him, those facts stand proved on admissions implied from pleadings. 15. Lastly, he relied on view expressed by a learned single Judge of High Court of Judicature of Madras in Appeal 23 of 1979, dated 28th November, 1983 (Jeevanandam Vs. American Advent Mission School, Madras), paragraph 16, for admission on question of damages with regard to rule 3 in order 8. 16. Defendant had, by arguing first, taken the point of the suit carrying claim for breach of terms of compromise decree and thus barred under section 47 CPC. American Advent Mission School, Madras), paragraph 16, for admission on question of damages with regard to rule 3 in order 8. 16. Defendant had, by arguing first, taken the point of the suit carrying claim for breach of terms of compromise decree and thus barred under section 47 CPC. Plaintiffs argued on distinction between enforcement of compromise term, it being and not being subject matter of suit compromised. Defendant in reply relied upon amending Act of 1976 to argue, thereby scope under order XXIII rule 3 was enlarged to include compromise effected in respect of subject matter not similar to subject matter of the suit compromised. Plaintiffs' rejoinder was that said amendment was clarificatory. It cannot purport to have changed law laid down by views expressed earlier. 17. At framing of issues parties appear not to have been at variance regarding maintainability of the suit as barred under section 47 CPC. No issue was framed. Order sheet records arguments advanced by both parties on this point. Rule 5 in order XIV empowers Court to, at any time before passing decree, inter alia, frame additional issues on such terms it thinks fit. On term of arguments heard on the point, an additional issue is framed. 18. Is the suit barred under section 47 CPC on amended rule 3 in order XXIII? 19. The additional issue framed is an issue of law relating to bar to the suit created by law, for the time being in force. It is, therefore, taken up for consideration first. 20. Rule 3 in order XXIII as it stood before amendment is reproduced below: "R. 3. Compromise of suit. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." 21. Said rule, after amendment but without the proviso stands as under: "R. 3. Said rule, after amendment but without the proviso stands as under: "R. 3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit." 22. In Pushpa Devi Bhagat (supra) a question arisen for consideration was whether the compromise resulting in consent decree was not a valid compromise under order XXIII rule 3 CPC. In answering the question Supreme Court said, inter alia, the rule consists of two parts. The second part provides that where a defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such satisfaction to be recorded and shall pass a decree in accordance therewith. The rule also makes it clear that, inter alia, compromise or agreement may relate to issues or disputes, which are not the subject matter of the suit. Said Court went on to say, agreement/compromise spells out agreed terms, by which the claim is admitted or adjusted by mutual concessions or compromises, so that the parties thereby can be held to their compromise(s) in future and performance can be enforced by execution of the decree to be passed in terms of it. This is in line with given meaning of decree in CPC, being that it is Court's expression, conclusively determining rights of the parties with regard to all or any of the matters in controversy in the suit. This expression can only be on adjudication, as a compromise between the parties is not Court's expression on the controversy. Present provision in rule 3 of order XXIII does not contemplate adjudication and, therefore, a compromise decree is repugnant to the given meaning, of decree. This expression can only be on adjudication, as a compromise between the parties is not Court's expression on the controversy. Present provision in rule 3 of order XXIII does not contemplate adjudication and, therefore, a compromise decree is repugnant to the given meaning, of decree. This repugnancy is saved also by section 2, which says, in the Act, unless there is anything repugnant in the subject or context, the meanings are as given by the several sub-sections. 23. Considering arguments advanced on issue no.8, it is found, controversy between the parties is on how there should be enforcement of the compromise term, by decree for damages or enforcing execution on disobedience by judgment debtor? Meaning of word 'proposed' is not given in Concise Oxford English Dictionary, 11th Edition, readily available in Court, for reference. If the meaning is taken to be an offer made earlier, then applying it to the term as pleaded, evidence laid and arguments thereon, there can only be finding that offer of holding the race, earlier made, stood accepted for it to be held on a date in future. On perusing the term, Court does not accept the contention that 'proposed race' was an offer to offer later. The race not having had been held at instance of defendant, the issue of enforcement thereof, either by way of damages for breach or execution levied for disobedience of a term of compromise. 24. In view of the amendment made to rule 3 in order XXIII CPC and interpretation in regard thereto given by Supreme Court in Pushpa Devi Bhagat (supra), this Court holds that plaintiffs must find remedy for disobedience of the term of compromise decree. A claim in this suit gave rise to issue no.8. The claim is barred by section 47 CPC since it relates to a question on a decree passed in plaintiffs' earlier suit. On holding as such and where plaintiffs have ultimately only pressed for adjudication on issue no.8, of issues nos. 3, 4 and 8 taken together and all others, the additional issue is answered against plaintiffs and in favour of defendant. Issue nos. 3, 4 and 8 stand accordingly answered. The suit is dismissed as barred by law.