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Charu Chandra Poali v. Birendra Nath Dutta And Others
Summary of Opinion by P.N. Mookerjee, J. (concurred by S.K. Chakravarti, J.)
Factual and Procedural Background
These two appeals arise from two suits brought by respondent no. 1 seeking a declaration that an ex parte decree obtained by the appellant (who had been defendant No.1 in the court below) in Title Suit No. 93 of 1950 was not binding on respondent no.1, was null and void, and should be set aside on the ground of fraud and collusion.
The suits were contested by the appellant. The trial Judge (learned Subordinate Judge) accepted the appellant's defences — including that the decree was not a nullity and that the plaintiff's claim was hit by lis pendens — and dismissed the plaintiff's suit. The lower appellate court (learned Additional District Judge), however, reversed that decision only on the ground that the ex parte decree in T.S. No. 93 of 1950 was a nullity because the suit was said to be barred by Section 47 of the Code of Civil Procedure (CPC); on all other points the appellate court accepted the trial Judge's findings.
Before the court delivering the opinion, the appellant challenged the lower appellate court's conclusion that the ex parte decree was a nullity, and respondent no.1 relied primarily on that point while not seriously contesting the other concurrent findings below.
Material facts for the dispute: the property (79A Manicktolla Main Road) originally belonged to the appellant. The appellant instituted Title Suit No. 65 of 1943 for declaration and possession; that suit ended in a compromise decree dismissing the suit but incorporating a petition of compromise which gave the appellant a right to a conveyance from the defendants in that suit. Relying on that agreement for conveyance, the appellant instituted T.S. No. 93 of 1950 for specific performance. That suit was decreed ex parte and the decree is impugned in the current suits.
Legal Issues Presented
- Whether the ex parte decree passed in Title Suit No. 93 of 1950 was a nullity on the ground that the suit was barred by Section 47 of the Code of Civil Procedure because the contract sued upon was already the subject-matter of the compromise decree in Title Suit No. 65 of 1943.
- Whether a term in a compromise decree (specifically an agreement for sale/conveyance incorporated in a dismissal decree) is enforceable by execution, or whether the remedy for specific performance remains a fresh suit.
- Whether the doctrine of lis pendens (Section 52, Transfer of Property Act) and the concurrent factual findings below affect the maintainability of the appellant's claim in T.S. No. 93 of 1950.
Arguments of the Parties
Appellant's Arguments
- The compromise decree in Title Suit No. 65 of 1943 was a decree of dismissal and, lacking any term indicating that the relief (conveyance/specific performance) would be enforceable in execution, it was not an executable decree.
- Because execution was not the appropriate remedy for enforcing the rights under the compromise decree, Section 47 CPC does not operate to bar a fresh suit; therefore Title Suit No. 93 of 1950 (suit for specific performance) was maintainable.
- The trial Judge's finding that the contract provision was outside the operative scope of the decree supported the conclusion that execution could not be invoked, and that view ought to be preferred.
Respondent No. 1's Arguments
- The contract sued upon in T.S. No. 93 of 1950 was already the subject-matter of the decree in T.S. No. 65 of 1943; therefore the relief should have been sought by execution of that decree and not by filing a fresh suit.
- Consequently, T.S. No. 93 of 1950 was barred by Section 47 CPC and hence not maintainable; a decree in such a suit would be without jurisdiction and thus a nullity.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (1908) 7 Cal LJ 492 | Authority relied upon by the learned Additional District Judge to support his view that a contract inserted in a compromise may be within the scope of the suit and subject to execution. | The court said this decision is distinguishable from the instant case and did not overrule or contradict it; the court did not follow it as determinative here. |
| 43 Cal WN 1007 | Authority relied on by the learned Additional District Judge (similar purpose as above). | The court treated this authority as distinguishable and did not apply it to hold the ex parte decree void in the present facts. |
| AIR 1940 Cal 82 | Authority cited by the learned Additional District Judge to justify that terms of compromise can be operative within the decree and enforceable. | The court observed the decision to be distinguishable on the facts and did not adopt it as controlling here. |
| AIR 1954 SC 340 | Authority relied upon below in support of the view that the contract term might bring the matter within the scope of the decree and its execution. | The court noted it was distinguishable and did not depart from its reasoning; it did not consider that authority sufficient to render the decree a nullity on the facts before it. |
| 60 Cal WN 99 : AIR 1956 Cal 317 | Authority which apparently supported the learned Additional District Judge's view that the suit was barred by Section 47 CPC. | The court found this decision distinguishable on its facts and criticised its wide interpretation of Section 47; the court declined to accept it as determinative for the present case and pointed out that Section 47(3) permits conversion between execution and suit proceedings, so a mere filing does not render a later decree void. |
Court's Reasoning and Analysis
The court approached the matter by limiting its enquiry to the single legal point of alleged nullity of the ex parte decree in T.S. No. 93 of 1950. It accepted that the other contested questions were primarily factual and that the concurrent findings of the two courts below on those points were binding in second appeal; the court agreed with those concurrent factual findings in favour of the appellant on the materials before it.
On the legal point, the respondent's contention was that because the contract for sale (the subject of T.S. No. 93 of 1950) had already been the subject-matter of the compromise decree in T.S. No. 65 of 1943, the remedy available was execution of the earlier decree and not a fresh suit — hence Section 47 CPC barred the suit and rendered any decree in it a nullity.
The appellant's response was that the compromise decree in T.S. No. 65 of 1943 was a dismissal decree and contained no term indicating that the contractual right to conveyance (specific performance) was to be enforceable by execution; therefore execution was not an appropriate remedy and a fresh suit for specific performance was maintainable.
The court analyzed whether (1) the contract term in the compromise decree was within the operative scope of that decree and (2) whether, even if it were, it could be enforced by execution absent an express term making it executable. While the court accepted, for argument's sake, that the contract term might be regarded as within the scope and operative part of the decree, it held that in the circumstances of these cases the term was not enforceable by execution because there was no stipulation by the parties that the right to specific performance be made executable by way of execution. The court explained that parties can by agreement substitute execution for a suit, but here no such agreement existed.
The court further examined and distinguished the authorities relied upon by the learned Additional District Judge. It specifically noted that one decision (AIR 1956 Cal 317) had interpreted Section 47 somewhat widely and had failed to consider that Section 47(3) permits conversion between a suit and execution proceeding (subject to limitation), meaning that the mere fact that a suit is filed which may be hit by Section 47 does not inevitably deprive the court of jurisdiction or render any resulting decree a nullity. Rather, such a defect would at most be procedural irregularity. The court concluded that the decree in T.S. No. 93 of 1950 could not be held void or without jurisdiction solely on the ground asserted.
Holding and Implications
Holding: The appeals were allowed. The court set aside the decrees passed by the learned Additional District Judge (the lower appellate court) and restored the decrees of the learned Subordinate Judge (the trial Judge) dismissing the suits brought by respondent no.1. There will be no order as to costs in any court.
Implications:
- Direct effect on the parties: The trial court's decision dismissing respondent no.1's suits is restored; the ex parte decree in T.S. No. 93 of 1950 cannot be declared a nullity on the ground that the suit was barred by Section 47 CPC in the circumstances of these cases.
- On the law: The court emphasized that where a compromise decree contains a contractual term for specific performance but lacks a stipulation making that term executable, execution may not be available and a fresh suit for specific performance can be maintainable. The court also clarified that invocation of Section 47 does not automatically render a decree void; procedural irregularity is a more apt characterisation where Section 47 issues arise and Section 47(3) permits conversion between proceedings.
- No broader precedent beyond the case facts: The court distinguished earlier authorities cited below and did not treat this opinion as overturning or broadly displacing those decisions; it confined its reasoning to the facts and legal questions presented.
Disposition stated in the opinion: "Appeals allowed." (P.N. Mookerjee, J.; S.K. Chakravarti, J. concurs.)
P.N Mookerjee, J.:— These two appeals arise out of two suits for declaration that the ex parte decree, obtained by the appellant, who was defendant no. 1 in the court below, in Title Suit No. 93 of 1950, was not binding on the plaintiff respondent no. 1 before us, and was also null and void and liable to be set aside on the ground of fraud and collusion.
2. The suits were contested by the present appellant, who denied the plaintiff's plea that the said decree was a nullity or was vitiated by fraud or collusion or had any legal defect. It was further pleaded in defence that the plaintiff's claim to the disputed property was hit by the doctrine of lis pendens. the learned trial Judge gave effect to all the above defences and dismissed the plaintiff's suit.
3. On appeal, the said decision has been reversed by the lower appellate court only on the ground that the ex parte decree in question was a nullity, the suit wherein the same was passed being hit by Section 47 of the CPC and not being maintainable on that account. On all other points, the learned Additional District Judge, who heard the appeal in the court of appeal below, agreed with the learned trial Judge and accepted the defence contentions.
4. Before us, the appellant has challenged the view of the learned Additional District Judge against him on the question of nullity of the impugned ex parte decree and he has contended that, on that point, too, he was entitled to succeed and the learned trial Judge's view ought to have been accepted.
5. On behalf of the contesting respondent No. 1, his case was rested on the above question of nullity, the concurrent findings of the two courts below against the respondent on the other points not being seriously challenged. Indeed, so far as the said questions are concerned, they are primarily questions of fact, on which concurrent findings of the two courts below would be binding on us in second appeal and would thus conclude the parties. Apart from that, on those questions of fact, we agree, on the materials before us, with the said concurrent findings of the two courts below in favour of the appellant and against the respondent no. 1's contention.
6. So far as the point of law is concerned, on which also the two courts below have concurred, namely, on Section 52 of the Transfer of Property Act, relating to the question of lis pendens, in favour of the present appellant, we see no reason to differ from the said finding. In the circumstances, the only point, which will be relevant and necessary for consideration in these appeals would be the point of alleged nullity of the impugned ex parte decree. In this state of things, we do not feel it necessary to state the facts in any great detail as the same have already been stated in sufficient detail in the judgments of the two courts below and we would only, for our present purpose, set out the facts, which appear to be necessary or relevant for the above limited enquiry.
7. The property in suit, which is 79A. Manicktolla Main Road, originally belonged to the present appellant. Thereafter, after certain court sales, a rival tilt was claimed by some persons, who may be briefly called predecessors-in-interest of the present respondent no. 1. Thereupon, the present appellant had to institute Title Suit No. 65 of 1943 for declaration of his title and recovery of possession. The said suit eventually ended in a compromise decree on the basis of a petition of compromise, filed by the parties. That petition was made a part of the decree, by which the suit was dismissed in terms of the said compromise. Under the said terms, the present appellant, who was the plaintiff in the said suit, and whose suit was dismissed by the said compromise decree, obtained a right to a conveyance of the disputed property from the defendants therein. On the basis of the said agreement for sale or conveyance, the present appellant instituted the above Title Suit No. 93 of 1950 for specific performance of contract. It is this suit which was eventually decreed ex parte, and the said ex parte decree was sought to be questioned in the instant suits.
8. The point of nullity of the above ex parte decree arises in this way: According to the respondent no. 1, who was the plaintiff in the instant suits, the above Title Suit No. 93 of 1950 would not be maintainable, as the contract, for specific performance whereof the said suit was instituted, was already the subject-matter of a decree, namely, the decree in Title Suit No. 65 of 1943, and, accordingly, relief under or in respect of the contract was obtainable and should have been obtained only by execution of the said decree, the result being so says respondent No. 1, that the above suit (T.S No. 93 of 1950), would be barred under Section 47 of the CPC Upon that view, the said respondent contended that the instant suits ought to succeed as the said suit (Title Suit No. 93 of 1950) being hit by S. 47 of the CPC as aforesaid, would not be protected by S. 9 of the CPC and would thus be not maintainable in law and the court would have no jurisdiction to entertain the said suit, the consequence being that the decree, passed therein, would be without jurisdiction and thus a nullity.
9. The appellant contests the above position and his plea is that the above compromise decree, being a decree of dismissal of the suit, was not executable, particularly when there was no term in the compromise, indicating that the relief, obtainable thereunder by the present appellant against the respondent no. 1's predecessors, who were defendants in that suit, would be available in execution, and, upon this view, the appellant contends that execution was not the appropriate remedy for the said reliefs and no question under Section 47 of the CPC would arise and the proper remedy would be a suit for enforcing the said reliefs. It is on this question that the two courts below have differed. They have also differed on the preliminary question whether the contract for sale, which was embodied in the compromise petition and eventually made a part of the compromise decree, was within the scope of the suit. The learned trial Judge was of the view that the same was outside or beyond the scope of the suit and accordingly could not form an effective or operative part of the decree and no question of execution would at all arise under the circumstances. The learned Additional District Judge, however, on the authority of certain decisions, cited in his judgment, has taken the view that although the suit was a suit for declaration of title and recovery of possession and although the plaintiff's claim to that effect was dismissed, the parties by the compromise inserted the contract in question as a term of such dismissal and thus brought the said contract within the scope of the suit.
10. In our view, even assuming that the said term of contract for sale would be within the scope of the suit and the same may legitimately be included within the operative part of the decree, it was not a term, in the circumstances of these cases, which could be enforced in execution. It undoubtedly embodied a contract for sale and gave the party concerned, namely, the present appellant, a right to specific performance. A right to specific performance, by itself, does not allow it to be put into execution. It was open to the parties to stipulate in the terms that this right would be enforceable in execution, which would really mean that the parties agreed to a decree for specific performance in favour of the appellant in spite of the dismissal of his suit which was for declaration of title and recovery of possession. In the instant case we find no terms in the compromise decree to the said effect and, accordingly, the principle that the parties by their own agreement can stipulate and lay down the procedure and substitute execution for a suit would not apply. Execution thus not being available, the decree in question being really a dismissal of the plaintiff's suit, the only remedy, available to the present appellant, for enforcing his right of specific performance would be by way of a suit. In this view, we would hold that Title Suit No. 93 of 1950 was maintainable in law and the decree, passed therein, cannot be held to be invalid or a nullity or without jurisdiction on the ground that the suit was not maintainable and not entertainable by the court.
11. In taking this view, we have not gone against any of the decisions, relied on by the learned Additional District Judge, namely, (1908) 7 Cal LJ 492 : 43 Cal WN 1007 : (AIR 1940 Cal 82) and AIR 1954 SC 340, which are all distinguishable from the instant case, in which the compromise decree in question was a decree of dismissal of the suit, however much this particular term or agreement for sale may be considered to be within the scope of the suit or brought within its scope by the parties' conjoined action. There remains, however, one other case which was also relied on by the learned Additional District Judge, namely. 60 Cal WN 99 : (AIR 1956 Cal 317) which, apparently, support; his view. That case, however, is also distinguishable on its facts and, apart from that, we may point out that the bar of Section 47 of the CPC was, in that decision, somewhat widely interpreted. It is to be remembered that even under Section 47, provided the period of limitation has not expired, and, in the instant case, that period had not expired at the material time, under sub-section (3), the court is entitled to convert a suit, which would otherwise be hit by the said section, into a proceeding under Sec. 47 and vice versa. It is clear, therefore, that the mere fact that a suit is filed, which would be hit by Section 47 of the Code, would not rob the court of its jurisdiction to deal with the matter and the decision of the court cannot be said to be a nullity or without jurisdiction. It will, at best, be a defect in procedure or an irregularity and I would not, therefore, attract the bar of I nullity. This aspect of the matter does not appear to have been considered in the above-cited decision and the proposition that the decree in a suit, which was hit by Section 47, would simply on that ground or merely because of that fact, be a nullity, was stated too broadly. As we have already said, that decision is distinguishable on its facts, as it was, primarily, rested on the other point, involved therein, namely, as to the effect of the Indian Independence Order.
12. In the above view, we would allow these appeals, set aside the decrees, passed by the learned Additional District Judge, and restore those of the learned Subordinate Judge, dismissing the instant suits of the plaintiff respondent no. 1. There will be no order for costs in any court.
S.K Chakravarti, J.:— I agree.
13. Appeals allowed.
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