1. These two appeals have been preferred one by defendants 2 and 3, another by defendant 4 against the decree in a suit for specific performance of a contract for sale of land. The events antecedent to the suit, as found by the Subordinate Judge, may be briefly narrated. On 23rd December 1902, defendant 1 brought an action in ejectment against defendants 2 and 3 in respect of the property now in dispute. On 12th December 1904, a decree was made in that suit, whereby the title of defendant 1 to the disputed property was established and he became entitled to recover possession by ejectment of defendants 2 and 3. During the pendency of that suit, the present plaintiff had entered into an agreement with defendant 1 on 21st September 1904, to the effect that he would finance the litigation and that if in the end a decree was made in favour of defendant, the benefit thereof would accrue to the plaintiff. It was further agreed between the parties that defendant 1, upon receipt of Rs. 2,000, would execute a conveyance in favour of the plaintiff in respect of the property to which his title might be ultimately established. There was also a detailed provision as to the liability for costs to which further reference is not needed for our present purpose.

2. As already stated, the suit was successful in the primary Court and defendants 2 and 3 preferred an appeal against; the decree of 12th December 1904. On 11th May 1905, a decree was made by consent as between the appellants, and the respondent, as a result whereof, the decree of the Court of first instance was set aside. It has been found that defendants 2 and 3 obtained the assent of defendant 1 to this compromise by the payment of Rs. 1,500. It has also been found that defendants 2 and 3, at the time they accepted the settlement, were aware of the agreement of 21st September 1904 between the present plaintiff and defendant 1; in fact, the Subordinate Judge has held that these defendants had in their possession a copy of the agreement in question.

3. On 30th May 1905, the plaintiff commenced the present action for a declaration that the consent decree of 11th May 1905 was fraudulent and collusive, and did not affect his rights to the decree of 12th December 1904; he further prayed for specific performance of the agreement of 21st September 1904. Defendant 1 did not resist the claim; but defendants 2 and 3 denied the factum and validity of the agreement sought to be specifically enforced. The Court of first instance dismissed the suit; upon appeal, a decree has been made in favour of the plaintiff. On behalf of defendants 2 and 3, that decree has been assailed substantially on two grounds: namely, first that the agreement is of such a nature that a Court of Equity will not specifically enforce it: and secondly, that no decree for specific performance ought to be made in this suit, because even if the decree be declared inoperative, defendants 2 and 3 are entitled to be restored to the position they occupied as appellants against the decree of 12th December 1904.

4. In so far as the first contention is concerned, it is clear that there is no substance in it. It was laid down by the Judicial Committee, in the cases of Bhagwant Dayal Singh v. Debi Dayal Sahu . 1904 35 Cal 420 and Lala Achal Ram v. Raja Kazim Hussain Khan . 1905 27 All 271 and in earlier decisions reviewed in the case of Gossain Ramdhan Puri v. Gossain Dalmir Puri . 1909 2 IC 385., that the propriety of an agreement of this nature can be questioned only by the parties thereto. Defendant 1 has not contended that the terms upon which the plaintiff undertook to finance him in the earlier litigation were unconscionable and ought not to be enforced in a Court of Equity. The position therefore is that as between defendant 1 on the one hand and defendants 2 and 3 on the other, the consent decree is valid and binding. As was pointed out in the cases of In re South American and Mexican Co.4 and the Bellcairn5, a decree by consent is operative between the parties so long as it is not set aside in a proper judicial proceeding, in the same manner as if it were a decree upon contest. This principle however cannot be applied to the perjudice of a stranger to the decree. The plaintiff is entitled to show that the decree is fraudulent and collusive and does not affect his legal rights. In other words, as was pointed out in the cases of Huddersfield Banking Co. v. Henry Lister and son . 1895 2 Ch 273 and Great North-West Central Ry. v. Charlebois . 1899 AC 114, a consent decree has no greater validity than the agreement between the parties, in so far as strangers to that agreement are concerned.

5. The question therefore arises, whether the plaintiff could have been affected by any agreement between defendant 1 and defendants 2 and 3 to his prejudice. It has not been disputed and it cannot be disputed that if defendant 1 had conveyed or surrendered to defendants 2 and 3 his rights under the decree of 12th December 1904, and if the latter had accepted the conveyance or the surrender with notice of the agreement between the plaintiff and defendant 1, the position of the plaintiff would have remained unaffected. He would have been entitled under Section 27, Clause (b) of the Specific Relief Act, to claim specific performance of the agreement, not merely against defendant 1, but also defendants 2 and 3. In our opinion, the position of defendants 2 and 3 is the same as if they had accepted a private assignment from defendant 1 with notice of the obligation under which he stood in relation to the plaintiff. They cannot, through the intervention of the Court and under the device of a consent decree, acquire higher rights than they would have done under a private conveyance. That this position is obviously sound, will be clear if we bear in mind that defendants 2 and 3 paid consideration to defendant 1 for this settlement. The defendants 2 and 3 cannot occupy a better position than a person who, having a prior title, gets in the subsequent estate which is affected by the contract; such a person, if he has notice, cannot protect himself from the performance of the contract, by his elder title: Smith v. Phillips . 1 Keen 691 Foot v. Heron . 3 Y and C 586 Union Bank v. Kent . 1888 39 Ch D 238 Mumford v. Stohwasser . 43 LJ Ch 694; as to this last case see Hunt v. Luck . 1901 1 Ch 45. The view of the subordinate Judge that a decree for specific performance ought to be made in favour of the plaintiff, must, consequently, be upheld.

6. It has been contended, however on behalf of the appellant that the direction given by the Subordinate Judge that the sum of Rs. 2,000 payable by the plaintiff for the conveyance should be deposited to the credit; of defendant 1 alone, cannot be supported. His contention in substance is that if the rights of defendant 1 have vested in defendants 2 and 3 the letter alone are entitled to the money and are liable to execute the conveyance. This position, in our opinion, is only partially sound. As between the first and the second and third defendants, the consent decree is, no doubt, valid and operative. At the same time, we do not know what equities there may be between these parties. The proper course to follow is to direct that the conveyance be executed by all the three defendants and the sum of Rs. 2,000 be deposited to their credit. Prima facie, defendants 2 and 3 alone are entitled to this sum; but if defendant 1 establishes to the satisfaction of the Court that he has a valid claim to any portion of this sum, the Court will be free to distribute it as between defendant 1 on the one hand and the defendants 2 and 3 on the other. The first contention of the appellant must, therefore, be allowed only in part.

7. In so far as the second contention is concerned it is plainly unsustainable. The learned Vakil for the appellants has contended that they are entitled to be restored to the position which they occupied when the consent decree was made; in other words, that the consent decree should be vacated and the parties should be relegated to the position of appellants and respondent in the litigation of 1904. In support of this position, reliance has been placed upon the decision of the Judicial Committee in the case of Khajooroonissa v. Roushan Jehan . 1876-77 2 Cal 181. That case, however, is clearly distinguishable. No doubt, as laid down by the Judicial Committee in the case mentioned, as also by this Court in other cases reviewed in Raj Kumar Roy v. Harakrishna Chakrabutty . 1911 10 IC 355. if a consent decree is vacated, the parties are restored to the position they occupied when the consent decree was made. But that principle can have no possible application to this case. It is not competent to the plaintiff to invite the Court to vacate the consent decree to which he is no party. He is a stranger to that decree, and the only declaration he can seek is that the decrees, does not prejudice his rights. Consequently, we cannot direct that the consent decree be vacated at the instance of the plaintiff, and that the appeal which was terminated by that decree be now heard as if no consent decree had ever been made.

8. The result is that the appeal by the second and third defendants is allowed in part and the decree of the Subordinate Judge modified. The plaintiff will have a decree for specific performance; the conveyance will be executed by the first, second and third defendants, and, upon their refusal, by the Court, on their behalf. The sum of Rs. 2,000 payable by the plaintiff has been, we understand, already brought into Court and deposited to the credit of the defendant 1. The deposit will now be taken to have been made to the credit of all the three defendants and if this sum has been attached as the property of defendant 1 that attachment will cease. Defendants 2 and 3 are prima facie entitled to this sum, as by virtue of the consent decree, the title of defendant 1 has vested in them. Notice will, however, issue upon defendant 1 and he will be allowed an opportunity to satisfy the Court of first instance, within one month after service of notice upon him, that he has a valid claim to any portion of this sum of Rs. 2,000. If he establishes a claim to any portion, it will be paid to him. If he does not appear, or if the Court is not satisfied that he has a valid claim to any portion of this sum, defendants 2 and 3 will be at liberty to take out the whole of this sum. The order for costs made by the Court below in respect of the first and second Courts will stand. But the parties will bear their own costs in this Court.

9. We find that there was a prayer for possession in the plaint. As has been already held by this Court Madan Mohan Singh v. Gaja Prasad Singh . 1911 11 IC 228., such prayer for possession may be coupled with a prayer for specific performance of the contract. We, therefore, direct that as soon as the conveyance is executed, the plaintiff be placed in possession of the property covered by the conveyance.

10. In so far as the appeal by defendant 4 is concerned, it is obvious that he has no title at all. He purchased during the pendency of the present litigation and is barred by the doctrine of lis pendens, as laid down by this Court in the case of Mati Lal Pal v. Preo Nath Mitra . 1909 3 ??? 696.. His appeal will, therefore, stand dismissed.

V.B/R.K

11. Appeal dismissed.