P.N. Mookerjee, J.
1. 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.
3. The learned trial Judge gave effect to all the above defences and dismissed the plaintiff's suit.
4. 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 Code of Civil Procedure 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.
5. 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.
6. 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.
7. 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.
8. The property in suit, which is 79A. Manicktolla Main Road, originally belonged to the present appellant. Thereafter, after certain court sales, a rival tilte 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 eventuallv decreed ex parte, and the said ex parte decree was sought to be questioned in the instant suits.
9. 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 Code of Civil Procedure. 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 Section 47 of the Code of Civil Procedure, as aforesaid, would not be protected by Section 9 of the Code of Civil Procedure 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.
10. 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 Code of Civil Procedure 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 plaintiffs 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
11. 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 al-low 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 plaintiffs 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
12. In taking this view, we have not gone against any of the decisions, relied on by the learned Additional District Judge, namely, : 1SCR117 , 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. : AIR1956Cal317 which, apparently, supports 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 Code of Civil Procedure 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 toconvert a suit, which would otherwise be hit by the said section, into a proceeding under Section 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 would not, therefore, attract the bar of 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.
13. 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.
14. There will be no order for costs in any court.
S.K. Chakravarti, J.
15. I agree.