1. Two brothers Sisir Kumar Chandra and Manick Lal Chandra have made this application for injunction restraining their step-mother Sm. Monorama Chandra from selling premises No. 21 Dr. Jagabandhu Lane Calcutta in execution of the decree dated September 7, 1946 passed by this court in Testamentary Suit No. 10 of 1948 (Shyamlal Malakar v. Sm. Monorama Chandra), The petitioners are praying that the order dated March 11, 1969 for sale of premises No. 21 Dr. Jagabandhu Lane, obtained by Sm. Monorama Chandra in execution of the decree dated September 7, 1948 be stayed pending the hearing of the suit
2. The suit in which this Interlocutory application has been made was filed by the petitioners on April 29, 1971 against Sm. Monorama Chandra and others, inter alia, for a declaration that the consent decree dated September 7, 1948 passed in Testamentary Suit No. 10 of 1946 by this Court is a nullity and not binding upon the petitioners and the same be set aside or cancelled, stay of execution of the decree, injunction receiver, costs such further or other reliefs.
3. In order to decide the question whether I shall in the exercise of my discretion grant temporary injunction, pending the hearing of this suit the circumstances under which this suit has been instituted and this application has been made have to be appreciated.
4. One Kristo Chandra, a Hindu governed by Dayabhaga School of Hindu Law died on May 1, 1946. Before his death he executed a Will on 2nd Baisakh 1363 B. S. corresponding to April 15, 1946. He married thrice. His first wife Matibala died long ago leaving a daughter Parul Bala who is married. He married second time Sm. Elokeshi Bala and had three sons by the second wife, viz. Raj Kumar, Sisir Kumar and Manick Lal. His second wife died. He married third time. His third wife is Sm. Monorama Chandra, the defendant No. 1 in this suit. He had a daughter Sm. Arati Bala by the third wife Sm. Monorama Chandra. The relationship of the parties will appear from the geneo-logical table set out hereunder:--
Kristo Lal Chandra (D. 1.5.46)
1st wife (D)Elokeshi Bala
2nd wife (D)Monorama
3rd wife (Df. 1.)Farul Bala
(married) Arati Bala
(Dft. No.3.)Sisir Kumar
(Pl. No.1.)Manick Lal
5. By and under his Will dated April 15, 1946 the testator Krishna Lal Chandra appointed his friend Shyamlal Malakar, as the executor and his third wife Sm. Monorama as the executrix.
6. I am quoting hereunder the relevant provisions of the Will:
'In all I have got five children. By my first wife there is Sm. Parul Bala Dassi who is married. By my second wife I have got three sons: 1st. Raj Kumar Chandra, 2nd Sisir Kumar Chandra, 3rd Manick Lal Chandra. After my death the aforesaid three sons of mine shall get an equal share, i.e., a third share each in all my movable and immovable properties with rights of transfer (like sale, gift etc.) and shall go on holding and enjoying the same down to their sons, sons' sons and heirs in succession and shall be competent to divide their respective shares amicably or with the help of proper court.
'By my third wife my daughter's name is Arati Bala Chandra. When she reaches the age of marriage my three sons shall contribute equally the amount of Rs. 200/- out of the income derived from my estate.
'My third wife Srimati Monorama Chandra shall get her maintenance and clothings if she lives in my house. On no account shall my sons be entitled to stop her maintenance and clothes. If however my wife has differences of opinion with my sons and if she wishes to live elsewhere, then she shall be entitled to an allowance of Rs. 20/- per month. If she lives with my family then my sons shall bear the expenses of maintaining and clothing her equally but if she takes to bad way then she will get nothing of my property. If my wife treads the path of immorality then she shall get nothing.
'I make my wife Sm. Monorama Chandra and Sri Shyamlal Malakar the guardian of my three sons and one daughter. One will not be entitled to act when the other dissents. As long as my son Mr. Raj Kumar Chandra remains a minor, I appoint these two persons the executrix and executor of all my movable and immovable properties till my son attains majority, but after my son becomes major no one shall continue to be the executor.'
7. The will also provided that no executor shall be competent to do anything with regard to these properties until his sons attain majority. On attaining majority his sons shall take possession of their shares. With the consensus of the three brothers they can do anything they like. The properties of the testator Krishna Lal Chandra consisted of his dwelling house at No. 21 Dr. Jagabandhu Lane, Calcutta and premises No. 27 Gopi Bose Lane and also several shares in Calcutta Tramways Company, which the testator valued at Rs. 30,000/-.
8. After the death of the testator Shyamlal Malakar, one of the executors of the Will applied in this Court for probate of the Will of Krishna Lal Chandra. The executrix, Sm. Monorama Chandra however, contested the application for probate on the ground, inter alia, that the testator lost the balance of his mind at the time of the making of the Will. The said application for probate was set down as a contentious cause and marked as Testamentary Suit No. 10 of 1946 with Shyamlal Malakar as the plaintiff and Sm. Monorama Chandra as the defendant.
9. The said Testamentary Suit was called on for hearing on July 28, 1948 before N. C. Chatterjee J. The suit was part-heard and during the pendency of the suit three sons of the testator, namely, plaintiffs and defendant No. 3 Raj Kumar were added as defendants presumably for the purpose of settling the suit. The sons of the testator were all minors. Mr. Dha-nanjoy Roy a Solicitor of this Court was appointed Guardian-ad-litem of the three sons. Sm. Arati Bala the daughter of the defendant Sm. Monorama was also added as a party and Sm. Monorama was appointed as her guardian-ad-litem,
10. The suit was dismissed on August 6, 1948. On September 4, 1948 the suit was mentioned for fixing a date for the purpose of proving the Will and for putting the terms of settlement.
11. Thereafter on September 7, 1948, the learned counsel appearing for the executor informed the Court that the suit has been settled between the parties and the terms of settlement have been signed by the parties. Certain witnesses were called but there was no cross examination. Certain terms of settlement were filed in Court. Shyamlal Malakar gave an undertaking to Court that he will administer the estate in accordance with the terms of settlement. Thereafter on September 7, 1948 the Court revoked the decree dated August 6, 1948 dismissing the suit and granted probate in terms of settlement put in. Leave was granted to the guardian-ad-litem to enter into compromise and it was certified for benefit of minors. Thus a consent decree was passed in the Testamentary suit. The minutes of the Court dated September 7, 1948 are relevant for the purpose of this application. I am setting out hereunder the minutes of the Court:
'Tuesday the 7th September 1948.
The Hon'ble Mr. Justice Chatterjee (Court sits at 10.40 a.m.)
Mr. B. K. Ghose -- appears for the executor.
Mr. S. K. Basu (with Mr. A. K. Bhat-tacharjee) -- appears for the defendant.
Mr. B. N. Roy Choudhury -- appears for the minors.
Mr. Chose informs the Court that the soft has been settled between the parties and the T/S have been signed by the parties to propose to prove the will before the T/S are put in.
Calls Dunilal Dawn and examines him in chief
Shown and tendered original Will annexed to the petition. (Ex. 'A')
Calls Shamlal Malakar and examines Mm in chief to prove that he has signed the T/S
The Court -- Shamlal Malakar gives ad undertaking to the Court that he will administer the estate in accordance with the Terms of Settlement he has signed.
Mr. Basa calls Monorama Chunder and examines her in chief regarding her consent to the T/S.
The Court--The decree dated 6-8-43 dismissing this suit is revoked and set aside. Probate granted in terms of the Terms of Settlement put in. Leave granted to the G/A to enter into compromise. Certified to her for the benefit of the minors. Parties are directed to act in accordance with the terms of settlement put in.'
The consent decree dated September 7, 1948 as drawn up is as follows:
'This cause coming on this day for final disposal before the Honourable Nirmal Chandra Chatterjee, one of the Judges of this Court in the presence of the advocates for the- parties and upon hearing the evidence given in this suit on behalf of the parties and this court being of opinion that it would be for the benefit of the infant defendant that the following decree should be made and granting leave to the guardian-ad-litem of the infant defendant to compromise the suit upon the terms of settlement set forth in the schedule hereto annexed and marked 'A'. And the adult parties and the guardian-ad-litem of the infant defendant having agreed to the said terms of settlement, it is declared with the consent of the adult parties and of the guardian-ad-litem of the infant defendant by their respective advocates that the said terms ought to be carried out and the same are ordered and decreed accordingly. It is ordered that the caveat entered by the defendant in the goods of Kristo Lal Chnnder in the pleadings in this suit mentioned (hereinafter referred to as the said testator) be and the same is hereby dis-charged. And it is further declared with the like consent that the said testator while living and of sound mind memory and understanding rightly and duly made as and for his last Will and Testament the writing in the Bengali Language and character and dated the second day of Baisakh 1353 Bengal Style corresponding to fifteenth day of April, 1946 exhibited and pleaded in this suit and did, will, give, bequeath, device, dispose and do all things as therein contained. And it is further ordered and decreed with the like consent that the probate of the last Will and testament of the said testator with a copy thereof annexed be granted and issued to the plaintiff as the sole executor therein named limited to the province of West Bengal subject to and as modified by the said Terms of Settlement.'
12. The relevant provisions of terms of Settlement which was filed in Court are as follows:
'1. Probate granted of the Will of Krishnalal Chunder. The estate will be administered as follows:
2. Mr. T. K. Ghosh is appointed valuer to value the premises No. (a) 21 Dr. Jagabandhu Lane (b) 20 Ordinary shares in Calcutta Tramways Co. Ltd., and (c) 5 Pref. shares in the said comoany (d) Gold Necklace Weighing 14 1/2 tolas. He will be paid Rs. 300/- altogether. Sm. Monorama Chunder will be entitled to one fourth of the above properties on the basts of the valuation made by the Surveyor and of the balance sale proceeds of No. 27 Gopi Bose Lane (after meeting the expenses as hereinafter mentioned) in full payment of the right of maintenance and residence on herself and her daughter Arati. She will get the said one-fourth share absolutely.
3. Mr. P. Mullick. Solicitor for the plaintiff do sell the premises No. 27 Gopi Bose Lane, Calcutta by public auction or private treaty at a price not below Rupees 21,000/- and out of the sale proceeds thereof pay:
(a) In the first instance the costs of sale and of Registration of this decree and costs of the parties of the suit including pending application, notwithstanding any order for costs already made. The costs of the defendant Sm. Monorama Chunder, and of the Guardian-ad-litem are assessed at Rs. 3,000/- and Rs. 250/- respectively and the assessed costs of Sm. Monorama Chunder to be paid to her attorney Mr. B. K. Mukherjee. Costs of Mr. P. Mallik be taxed as between attorney and client.
(b) Costs of redeeming the said necklace.
(c) One-fourth of the total value arrived at by the surveyor in respect of the items of the property mentioned in Clauses (2a) (b), (c) and (d) and of the balance of the sale proceeds of No. 27, Gopi Bose Lane to Sm. Monorama Chunder. Sm. Monorama Chunder and Sm. Arati Debi do vacate the premises No. 21, Dr. Jagabandhu Lane upon such payment.
(d) The balance of the sale proceeds, if any, of No. 27, Gopi Bose Lane will belong to the three minors, Raj Kumar Chunder, Sisir Kumar Chunder and Manik Lal Chunder absolutely in terms of the Will.
(e) Premises No. 21, Doctor Jagaban-dhu Lane are charged with the payment of sum of Rs. 5000/- for the marriage expenses of Sm. Arati Debi daughter of the testator and of Sm. Monorama Chunder and also the deficit, if any, payable to Monorama Chunder in case the sale proceeds are insufficient to pay the amount payable to her under these terms. Three months before marriage of the said Sm. Arati the said sum will be paid by the Executor or the three minor sons of the testator to Sm. Arati herself. In default of such payments the official receiver who is hereby appointed receiver will take possession of the said premises and sell the same and out of the sale proceeds pay the costs of the sale and his commission and pay the deficit, if any, payable to Sm. Monorama Chunder as hereinbefore stated and Rs. 5000/- to Sm. Monorama Chunder or in her absence the guardian of Sm. Arati. The said premises subject to the said charges as also the properties mentioned in 2 (b), (c) and (d) shall belong to the three sons of the testator, absolutely in terms of the Will.
4. The Official Receiver who was appointed Administrator-pendente lite under order dated November 21, 1946 is hereby discharged and he do deliver over possession of the properties to the executor. He do pass his accounts and do pay half the money in his hand to Mr. P. Mullick, Solicitor, and the balance half to Mr. B. K. Mukherjee towards part-payment of their costs as mentioned in Clause 4 (a) afore-said.
5. Liberty to apply.'
13. On February 5, 1969 Arati was married to one Sri Anil Kumar Roy. The defendant No. 1 Sm. Monorama Chandra applied for execution of the said consent decree for realisation of Rupees 5000/- by sale of premises No. 21, Dr. Jagabandhu Lane, Calcutta. On March 11, 1969 Sm. Monorama Chandra obtained an order for sale of premises No. 21, Dr. Jagabandhu Lane. Calcutta from this Court. From the affidavit of Sm. Monorama affirmed on 14th July 1971, it appears that one Shri Bhupendra Kumar Dey, Supreme Court Advocate wrote a letter on February 17, 1969 that he had instructions to oppose the application on behalf of his clients Raj Kumar Chandra, Sisir Kumar Chandra and Manick Lal Chandra. Directions were given by this Court for filing of affidavit-in-opposition to the application for sale of premises No. 21, Dr. Jagabandhu Lane, Calcutta by Sm. Monorama Chandra but Sri Bhupendra Nath Dey did not appear or file any affidavit or oppose the application and the said order for sale was passed ex parte.
14. The case of the petitioners fa fhis application, is that on August 12, 1969 the petitioners came to know the consent decree dated September 7, 1048 on searches made after Sm. Monorama threatened to sell premises No. 21, Dr. Jagabandhu Lane. The petitioners stated that they were minors at the time when the consent decree was passed. The petitioner Sisir Kumar attained majority on or about November 28, 1956 and the petitioner Manicklal attained majority on or about August 16, 1959. They say that premises No. 21 Dr. Jagabandhu Lane is their residential house and if the said premises is sold in execution of the said consent decree which is impugned in this suit the petitioners would be dispossessed from their family dwelling house and the purpose for which the present suit has been instituted will be defeated. According to the petitioner unless an order for injunction restraining Sm. Monorama Chandra from selling the premises No. 21 Dr. Jagabandhu Lane is passed, the petitioners will suffer irreparable loss and injury and the suit would become infractuous.
15. Mr. M. B. Sarkar, the learned Advocate appearing for the petitioners relied on the judgment of the Court of appeal presided over by P. B. Mukharji, J. (as he then was) and H. K. Bose J. reported in : AIR1961Cal359 (A. E. G. Carapiet v. A. Y. Derderian) and submitted that the consent decree as passed on September 7, 1948 is a nullity because a Court of Probate being a Court of conscience cannot grant probate by consent. He states that the terms of settlement may be annexed to the records of the probate proceedings but no decree could be passed on the terms of settlement To enforce the agreement or the right, if any, under the agreement other independent proceedings are necessary. The testamentary suit cannot be decreed in terms of settlement filed in Court nor such a decree could be executed.
16. He placed before me the following portions of the said judgment which is set out hereunder:
'A point of probate practice of great importance, however, remains to be disposed of. The learned counsel for the parties appear to have agreed to certain arrangements for disposal of the estate of the testator. These terms, which are described as terms of settlement, are supposed to be signed by all the interested persons. We are asked to keep these terms on the records of this Court. A Court of probate is said to be a Court of conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such a Court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is a grant or refusal. The Court has to be satisfied in each case whether the Will proposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. It is either all or nothing. That seems to be sensible enough law.
'The Court, however, has a way of softening the austerity and rigour of this procedure. The practice of the Court has discovered on such way in this regard. In England, such terms of settlement are allowed to be filed and are made what is said to be a 'rule of the Court'. See In the Estate of Cook (1960) 1 All ER 689 where the Court pronounced for the Will in solemn form and the terms of compromise were made a Rule of Court. The testamentary rules and probate practice in this Court do not seem to indicate that there is such a procedure available here for making such terms of settlement a rule of the Court. But nevertheless, it has formulated a practice, consistently followed, almost without exception, of making the terms of it, not a rule of the Court but a record on the file of the Court. That does not mean that these terms become a part of the grant or refusal of the probate or executable as such. But it only means this that the records of the Court will show that the interested parties had arranged to dispose of the property according to such agreement when it reaches their hands, but then such agreement does not thereby become executable as a decree of Court but can only be enforced by independent proceeding or suit in the ordinary way as an agreement. The procedure as adopt-ed may be justified rationally by suggesting that this gives a certain amount of authenticity and solemnity to the agreement. In practical effect, the procedure helps nobody because the filing of the agreement does not help in the execution nor does it conclude any possible question on the validity or enforceability of such agreement. The Court only allows to be filed with its records a written declaration by the parties themselves that the parties have between themselves come to a certain arrangement and nothing more. But this does not mean that the Court makes a declaratory decree in terms of the agreement filed. It does nothing of the kind. The Court expresses no opinion whatever on such agreement. The Court's task is over by its judgment in refusing or as in the case by granting the probate independently of whatever agreement the parties may have arrived at.'
17. Relying on this decision Mr. Sarkar submitted that the consent decree dated September 7, 1948 granting probate was without jurisdiction and a nullity. According to him his clients who were minors did not and/or could not make such an agreement. He quoted the affidavit of Shri Dhananjoy Roy affirmed on July 12, 1971, where it was stated that Dhananjoy Roy did not take part in the settlement. He submitted that his clients are challenging the consent decree as nullity. His clients are also challenging the consent decree on the ground of fraud. He further submitted that his clients are very much affected by the decree and the order for sale. They were minors. They are illiterate fishermen. Their father bequeathed the residential house to them by a Will. But their step mother is now seeking to sell the property for payment of Rs. 5,000/- for her daughter's marriage under the terms of the said consent decree. His case further is that the petitioners never gave any instructions to the Supreme Court Advocate and in any event the said Bhupendra Kumar Dey did not appear on behalf of his clients or point out before the executing Court that the decree was a nullity and not executable.
18. Mr. P. K. Mullick, the learned Counsel appearing for Sm. Monorama Chandra strenuously contested this application. The first point taken by Mr. Mullick is that this suit is not maintainable and does not lie. In any event he submitted that the suit is barred by limitation.
19. In this connection Mr. Mullick relied on two cases, namely, reported in AIR 1940 Cal 286 (Rai Bahadur Pannalal v. Lala Hansraj Gupta) and AIR 1944 Cal 385 (Kailash Chandra v. Nanda Kumar), and submitted that a suit for revocation of a grant of probate does not lie and the proper remedy would be to file an application under Section 263 of the Indian Succession Act. Mr. Mullick invited my attention to Section 263 of the Indian Succession Act and illustration (1) of Section 263 and submitted that the grant of probate may be revoked or annulled if the Court by which the grant was made had no Jurisdiction. Mr. Mullick further submitted that Manick Lal attained majority in 1959 but this suit had been filed on April 30, 1971 and therefore this suit is barred by the law of limitation. Mr. Mullick further submitted that even if the suit lies there is no cause of action in the instant suit. Further there was great delay in making this application. As such no order should be passed on this application.
20. In my view the two cases relied on by Mr. P.K. Mullick which are in AIR 1940 Cal 236 and in AIR 1944 Cal 385, do not apply under the facts and circumstances or the instant case. The ratio decidendi of the aforesaid two cases are that the judgment of a Court of probate is a judgment in rem and binds all the world. A judgment in a Civil suit is a judgment in personam and is operative only between the parties to the suit. A judgment in rem cannot be revoked or set aside by a judgment which is only conclusive between the parties. Therefore the proper remedy of the party who wants revocation of a grant of probate is to apply to the probate court under Section 263 of the Indian Succession Act, and not to file a Civil Suit. To revoke the grant of probate the exclusive remedy should be an application under Section 263 of the Indian Succession Act.
21. But what do I find in the instant case? I find that though some evidence was given but probate was granted by consent of the parties. It appears from the decree that the testamentary capacity of the testator was also decided by consent. Certain terms of settlement were filed in Court and a decree was passed in terms of settlement. It was not simply a decree granting a probate but a composite decree by which probate had been granted by consent and also a decree by consent on the terms of settlement filed in the Probate Court. It is well established that probate decides merely on the factum of the Will. The agreement arrived at between the parties is a different matter altogether. This agreement can be kept in the records of Court and the parties can take such steps as they think best by independent proceedings on the agreement. But in the instant case there was a decree in terms of the settlement filed in Court and grant of probate by consent.
22. The whole question is whether this can be done? It seems to me that the attention of the Court was not drawn to the case reported in (1943) 48 Cal WN 294 (Jagadish Chakravarty v. Upendra Chandra Chakravarty) when the consent decree dated September 7, 1948 was passed. It was held by this Court in (1943) 48 Cal WN 294 at p 299 as follows:
'That a Court exercising probate jurisdiction cannot grant or refuse probate of aWill by consent and without taking evidence is settled law. When a will is actually put before such a Court,the parties to the proceedingscannot say to the Court, that theprobate be granted without proof of thedue execution of the Will or probate refused without any evidence being led. Thisprinciple is well established and has forits basis the fact that a probate or anorder refusing probate operates as a judgment in rem. Monmohini Guha v. BangaChandra Das, (1904) ILR 31 Cal 357 andSarada Kanta Das v. Gobinda Mohan Das,(1910) 12 Cal LJ 91. When a Will is putbefore the probate Court for proof, theparries before the Court can, however,enter into an agreement which changes theterms of the Will and say that probate begranted. The effect of such an agreementwill be the withdrawal of the objections tothe proof of the Will in consideration ofthe division of the estate in the manneragreed upon. In such a case the probateCourt will have to take evidence about theWill and if it comes to the conclusion thatthe Will is valid must grant probate of theWill, as it stands and unmodified by theterms of the agreement but should makethe agreement arrived at between theparties an annexure to the decree. Theparties agreeing would be bound to regulate their rights inter se according tothat agreement, and if any of them refuse,the others will be entitled to bring a suitagainst the parry in breach, Kamal KumariDevi v. Narendra Nath Mukherjee, (1907)9 Cal LJ 19 or may compel the executorto distribute the estate in accordance withthat agreement by filing an application inthe probate Court under Section 302 of theIndian Succession Act, in cases in whichthat section applies. Secy, of State forIndia in Council v. Smt Parijat Debi,(1935) 63 Ind App 61 = 40 Cal WN 185= (AIR 1935 PC 203) The principle oflaw laid down in (1943) 48 Cal WN 294(299) was accepted as correct by the morerecent division Bench judgment of thisCourt in : AIR1961Cal359 (Carapiet'scase).
23. In view of the above principles of law and procedure as to probate practice, it seems to me, that by passing the consent decree dated September 7, 1948, the Court of probate has exercised a jurisdiction which it could not do.
24. In course of the argument. I drew the attention of the learned Advocates appearing for the parties to a recent case of the Supreme Court reported in : 3SCR92 (Official Trustee, West Bengal v. Sachindra Nath Chatterjee). In the Supreme Court case, it was held by their Lordships that 'before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the question at issues, the authority to hear and decide the particular controversy that has arisen between the parties. The Supreme Court in this case accepted the principle that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination.
25. Thus one must be careful to distinguish between exercise of jurisdiction from existence of jurisdiction. Even if there is existence or jurisdiction the question may still arise whether the Court has exercised the jurisdiction in an illegal or irregular manner- Questions may arise wherefrom the Court got the power or authority to pass the decree or order. Certain non-compliance of the law and/or procedure may not be mere irregularity but may amount to illegality and thus destroy the effect or validity of the proceedings or the decree or order passed by it.
26. In my view these matter would arise for consideration in the instant suit filed by the petitioners. This suit filed by the petitioners is not a suit for declaration that the grant of probate be revoked but a suit for declaration that the consent decree dated September 7, 1948 passed in Testamentary Suit No. 10 of 1946 by this Hon'ble Court is a nullity and not binding upon plaintiffs. In the suit the petitioner also prayed for a declaration that the consent decree be set aside and cancelled on the ground of fraud. The suit has been filed under Section 34 of the Specific Relief Act 1963. In any event Section 34 of the Specific Belief Act, 1963 is not exhaustive of the cases in which a declaratory decree may be made and the Court has power to grant such a decree independently of the requirement of the section.
27. Any party to a suit or other proceedings may show that any judgment, order or decree which was proved by the adverse party was delivered by a Court not competent to deliver it Any party to a judgment or decree may avoid a judgment or decree by proving fraud or collusion by the adverse party. In other words, a decree can be challenged as nullity on the above grounds. This can be done by a separate suit.
28. Therefore I think this suit is, prima facie, maintainable.
29. With regard to the point of limitation raised by Mr. Mullick in my view there is no question of limitation because in this suit the consent decree has been challenged as nullity and void. There is also the question of fraud. In the plaint it has been pleaded that the petitioners came to know the consent decree on August 12, 1969. This is a question of fact to be tried in the suit
30. The otter point raised by Mr. Mullick as to delay in making this application will not affect the exercise or my discretion to grant an injunction in the instant case because from the facts placed before me, it appears that the probate. Court was not competent to pass the con-sent decree. If all these points which are now raised before me were placed before the executing Court, there may not have been any order for sale at all. It has been held by the Supreme Court that even at the execution stage or at any stage the Court can take into consideration the point that the Court which passed the decree which is sought to be executed was not competent to pass it. (See : 1SCR117 , Kiron Singh v. Chaman Paswan). Therefore the question of delay in this case is not of much importance.
31. In the premises, I think that there is sufficient prima facie case to go to trial and all the matters raised by the petitioners would be finally decided in the suit
32. During the pendency of the suit I cannot allow the residential house of the petitioners to be sold in execution of the consent decree passed by the probate Court. The daughter of Sm. Monorama Chandra has already been married. The property if sold would cause irreparable loss and injury to the petitioners because it is their residential house and if it is sold they would be turned out from their residential house.
33. In view of the above matter there should be an order for injunction restraining the respondent Sm. Monorama Chandra from selling the said premises No. 21, Dr. Jagabanohu Lane, Calcutta in execution of the decree dated September 7, 1948 pending the disposal of the suit.
34. Accordingly there will be ad order in terms of prayers (a) (c) and (d) of the petition.
Sm. Monorama Chandra shall pay the costs of this application to the petitioners. The other parties except respondent No. 2D. Roy Solicitor shall pay and bear their own costs. The cost of respondent No. 2D. Roy will abide by the result of the suit.