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10. I agree that the first question should be answered in the affirmative.

Niamatullah, J.

11. I agree generally with the view expressed by the Hon'ble Acting Chief justice, but I would like to add a few observations of my own on the principal question which calls for decision in this reference. It seems to have been assumed by the learned Judges who decided Raghunandan v. Ghulam Alauddin AIR 1921 All 689, that if the Court executing the decree applies Section 74, Contract Act, to a compromise which has become merged in a decree, it must necessarily interfere with the decree itself. The argument of the learned Counsel for the respondent proceeded on the same assumption. In my opinion, Section 74, Contract Act, viewed in its proper perspective, does not involve any interference with the decree when applied to a compromise on which a decree is passed. Section 74 enacts the rule that 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 for.

13. What is reasonable compensation is to be determined whenever a dispute arises and the contract is sought to be enforced. The Court executing the compromise decree can only enforce covenants either expressly mentioned in the promise or therein implied from the-legal incident attaching to the compromise on which the decree is based. In determining the compensation to-which the party complaining of the breach of the contract is entitled the Court executing the decree is not going behind the decree. Its action may seemingly appear to amount to interference with the apparent tenor of the decree. In reality however far from interfering with the decree the Court is giving effect to it in accordance with its real legal import. In this view, I do not think it necessary to hold that the well-established rule that a Court executing the decree cannot go behind it admits in Shirakuli v. Mahablya (1886) 10 Bom 435. But in Krishna Bai v. Hari Govind (1907) 31 Bom 15, a Full Bench of that Court dissented from this view. It is true that the case before the Full Bench did not arise of exceptions or that an exception would be drafted on that rule if Section 74, Contract Act, be applied to a compromise which has become merged in the decree. Nor do I think for the reasons already stated, that there is any conflict between the aforesaid, rule and the view that, acting under Section 74, Contract Act, a Court executing a decree can relieve against the penal provision contained in the compromise. For these reasons I agree with the Hon'ble Acting Chief justice, in answering the first question referred to this Bench in the affirmative. I also agree that the second question does not arise.