Salil Kumar Datta, J.
1. This is an appeal by the defendant against a concurrent decree for specific performance of a contract. The plaintiffs' case is that they were owners of property of schedule A to the plaint in equal shares. Originally one Subodh Chandra Ghosh, father of the plaintiff No. 2, had -/8/- share therein and this share was set apart fictitiously by lease in favour of one Bhajahari to avoid any possible claim by co-sharers of Subodh; the transaction thus was a benami affair, the possession remaining with Subodh. After his death, the plaintiff No. 2 acquired his interest by a deed of settlement. The defendant knowing fully the real position, purported to acquire the interest of the said fictitious tenant by registered document which also included schedule 'B' property which is situate on the contiguous south of 'A' schedule property. The defendant wanted to excavate a tank in 'A' schedule property and the plaintiffs instituted a suit being Title Suit No. 150 of 1060 for declaration of their right, title and interest in 'A' schedule property and for khas possession thereof and also for restraining the defendant from excavating the tank as also from disturbing the possession of the plaintiffs. This suit was compromised by a joint petition filed in the said proceeding whereby the parties agreed that the defendant would execute a kobala in respect of her interest in properties of schedules A and B on receipt of Rs. 1600/-and such document was to be executed and registered within one month. Thereafter, as the defendant wanted to resile from the contract, the plaintiffs filed a petition under Order 23, Rule 3 for recording the compromise. The compromise was recorded by court and the suit was disposed on August 31, 1962 and the compromise petition was made a part of the decree. The plaintiffs thereafter put the decree in execution, for execution of the sale deed in terms of the compromise. The defendant objected to the said exe' cution which was allowed and upheld and affirmed in appeal. The plaintiffs accordingly filed the present suit on July 24, 1064 on depositing the full consideration money, praying for the specific performance of the contract entered into by the parties by the said joint petition.
2, The suit was contested by the defendant who filed a written statement contending inter alia that the suit was barred by limitation, time being the essence of the contract, that the alleged agreement was false and fraudulent, based on undue influence and misrepresentation. Further the 'A' schedule property was legally settled to Bhajahari who after remaining in possession for twelve years, thereby also acquiring good title by adverse possession, sold it to Radha Rani Debi who in her turn, while in possession thereof, sold, the same along with 'B' schedule property to the defendant on April 4. 1960 for valuable consideration. It was further alleged by the defendant that she was a purdanasin lady and put her thumb impression on a paper brought to her by her husband and son on a plea of taking time. There was never agreement for sale nor was any consideration settled. The agreement was thus void and illegal. Alternatively it was stated that the contract not being complied with by the plaintiff within time it was unenforceable in law.
3. On the above pleadings the parties went to trial before the learned Munsif, who on a consideration of the materials on record, held that the contract was not void for fraud and undue influence nor was time the essence of the contract. It was further found that the plaintiffs established that they were always willing and ready to perform their part of the contract and the defendant was not entitled to benefit of Section 16 of the Specific Relief Act. Further there is no dispute about the identity of 'B' schedule property. The suit was accordingly decreed.
4. An appeal was preferred against the said decision and the appellate court, in agreement with the trial court, held that there was no fraud, misrepresentation or undue influence in respect of the impugned agreement. It was further held that the court in the earlier suit recorded the compromise after considering the genuineness of the agreement and holding it so. The defendant accordingly could not escape the effect of the decree which was final and binding as no appeal was taken against the decree. The court further observed that there was a concluded contract for sale of the suit properties and the decree as also the agreement was binding on the defendant. Further it was held that time was not the essence of the contract and the plaintiffs duly performed their part of the contract. The appeal was accordingly dismissed. The present appeal is against the said decision.
5. Before we proceed to consider the merits of the contentions of the parties, it is necessary to look into the proceeding of the earlier suit. The suit was fixed for peremptory hearing on July 26, 1962. On that day a joint petition written in Bangali signed by the parties was filed in court, the English Translation whereof is as follows;
'There has been proposal between the plaintiffs and the defendant for amicable settlement. The plaintiff will purchase the suit property including the lands to the contiguous south purchased by the defendant within one month from this date on payment of Rs. 1600/-. For doing that it is necessary to execute the conveyance. Both parties will have the kobala executed within this time. Accordingly the prayer is for fixing a date after one month on postponing today.' On August 20, 1962, the plaintiffs filed a petition under Order 23, Rule 3 of Civil Procedure Code and it was fixed for August 31, 1962 for hearing both sides and for orders. It appears that the defendant filed an objection and the application was taken up for hearing on August 31, 1962. On that day the application, and objection to it were considered by the court which held that the terms were fully settled. The court rejected the objection of the defendant about the southern portion being extraneous to the suit, holding that the terms beyond or outside the suit would be incorporated in the decree and would have force of an agreement to be enforced by suit or whatever means as the parties might choose, and it could not vitiate the entire solenama. The court found that there was no case of fraud and accordingly recorded the settlement so far as it related to the suit. The application under Order 23, Rule 3 was allowed on contest and the suit was dismissed on compromise in terms of joint petition of July 26, 1962 which formed part of the decree.
6. Mr. Jnan Ranjan Ganguli, the learned Advocate for the appellants, while assailing the judgment under appeal, has raised certain new points which were not taken in the courts below. His first contention is that the decree of the earlier suit was without jurisdiction inasmuch as it was also in respect of schedule 'B' property which was extraneous to the suit. The price agreed to, as alleged, was a composite one for properties of schedules A and B together. There was and could be no apportionment by the court in absence of any basis. If decree in respect of schedule B failed, it would also fail in respect of schedule A in view of the uncertainty of consideration and thus it became unenforceable in law. Mr. Ganguly further contended that the earlier suit was not decreed but it was dismissed in terms of the petition. There was thus no decree as contemplated under Section 2, Clause (2) of the Code. The defendant in the circumstances had no occasion to appeal against the same and accordingly the 'decree' in the suit could not be final and binding on him as held by the appellate court in its judgment under appeal nor could It operate as res judicata. Reliance was placed on the decision in Rajendra Kishore Choudhury v. Kumud Ban Mahata, AIR 1923 Cal 297 in which it was held that where a decree in favour of the defendant contained an adverse finding against the defendant, such finding would not be res judicata.
7. Mr. Apurbadhan Mukherjee, the learned Advocate appearing for the respondents has disputed the above contentions and contended that these contentions now raised were not taken in the courts below. He submitted that in view of the order of the court recording a compromise under Order 23, Rule 3 of the Code, such compromise is conclusive and binding on the defendant who is not entitled in law to challenge the same in the present proceeding. He further contended that the court in the earlier suit did not pass any decree which could be executed; it merely recorded an agreement as a legal and valid, and its legality and validity could not again be subject-matter of an attack.
8. Even assuming that the contention of Mr. Ganguli is correct, in that the recording of the settlement of the suit by the agreement is neither final nor conclusive, there can be no doubt that the parties by the ioint petition filed on July 26, 1962 entered into an agreement which is sought to be enforced by the present suit. If the said agreement is valid and legal, It would be, without doubt, enforceable in law, entitling the plaintiffs to its performance by the defendant. In fact, the suit proceeded on that basis and the defence raised the plea in her written statement that the agreement was vitiated by fraud, misrepresentation and undue influence and that time of one month was the essence of the contract. The courts below rejected the said contentions, holding inter alia that the agreement was not vitiated by fraud, misrepresentation and undue influence nor was time the essence of the contract. These findings have not been challenged by Mr. Ganguli, as he cannot, such findings being of fact and not permissible to be challenged on a second appeal.
9. Mr. Ganguli's formidable contention is that the agreement is void for being without consideration. He referred in support to the following observations of Cockburn, C. J. In Callisher v. Bischoffsheim, (1870) 5 QB 449:
'Everyday a compromise Is effected on the ground that the party making it has a chance of succeeding in it, and If he bona fide believes he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to sue will constitute a good consideration. 'When such a person forbears to sue, he gives up what he believes to be a right of action, and the other party gets an advantage and, instead of being annoyed with an action, escapes from the vexations Incident to it. It would be another matter if a person made a claim which he knew to be unfounded and by a compromise, derived an advantage under it in that case his conduct would be fraudulent.'
In Wade v. Simeon, (1846) 135 KR 1061, the plaintiff practically admitted by his special demurrer to the defendant's pleas, the contention of the latter being that the plaintiff had suffered no detriment in that he originally had no cause of action. Tindal C. J. observed:
'In order to constitute a binding promise the plaintiff must show good consideration something beneficial to the defendant or detrimental to the plaintiff. Detrimental to the plaintiff it cannot be If he has no cause of action; and beneficial to the defendant it cannot be ... ... . the consideration therefore altogether fails.'
On the above principle, Mr. Ganguli has contended that in the earlier suit, the plaintiffs instituted the earlier suit for declaration of their 16 annas title relating A schedule property stating that the defendant had no title as his predecessor-in-interest was only a benamdar of the father of the plaintiff No. 2. The defence was that the defendant had title to the suit land which in effect succeeded as would appear from the joint petition whereby the plaintiffs agreed to purchase the said interest. The plaintiffs having admitted the title of the defendant by the joint petition, had accordingly no cause of action for the earlier suit which was for declaration of their 16 annas title to Schedule 'A' property and they were fully aware of the falsity of their claim. The plaintiffs thus neither suffered any detriment nor did the defendant derive any benefit and the consideration accordingly failed.
10. There can be no dispute regarding the above principles of law enunciated in the above decisions. In Jayawickreme v. Amarasuriya, AIR 1918 PC 287. the case of Cook v. Wright, (1861) 1 B & S 559. 570 was referred in which it was decided that even if the defendant actually knew that the plaintiff's claim which was compromised, was invalid, yet the compromise of it would be enforceable. In the case of Callisher, (1870) 5 QB 449 (supra), the observations of Blackburn, J. quoting from the above case that the compromise of a disputed claim made bona fide is a good consideration for a promise even though it ultimately appears that the claim was wholly unfounded, was referred to with approval in the above case by the Privy Council.
11. In the Instant case, the plaintiffs filed the earlier suit pleading their absolute title to schedule A property and also stating that the defendant had no valid claim thereon, as his predecessor-in-interest was a benamdar of the father of the plaintiff No. 2. The same case has, been made in the present suit. It is, therefore, obvious that the plaintiffs bona fide pleaded their title to the suit property. Nonetheless they thought it prudent to buy off the interest claimed by the defendant, obviously to avoid any future complication and trouble. Therein there is no inconsistency nor lack of bona fides of the claim. In such circumstances, the agreement providing for acquisition of the defendant's title in the suit property as claimed with another adjacent property described in Schedule B appear to me to be lawful contract for valid consideration. Further the agreement was beneficial to the defendant inasmuch as he was being paid a value for the transfer of his interest in the property which in the event of success of the plaintiffs' suit he would never receive, at least for A schedule property. I therefore do not think that the agreement was without consideration and thus void. It will also appear that the plaintiffs proceeded with the earlier suit with all diligence and the case came up for peremptory hearing on July 26, 1962 when joint petition was filed. In view of the joint petition, while the defendant avoided a decision in the suit, the plaintiffs also refrained from proceeding with the same. Such forbearance has been accepted in law to be a lawful consideration of a contract. I am unable to accept the contention of Mr. Ganguli that the plaintiffs admitted the claim of the defendant by the joint petition and proceeded on the defendant's title even as regards schedule A property and there could thus be no cause of action. On the contrary I hold that the plaintiffs had a cause of action of the earlier suit for declaration of their title to A schedule property and merely being a party to the joint petition such cause of action did not vanish. There is, therefore, no question of the plaintiffs' deriving any advantage under the agreement when, according to them, their claim was not unfounded.
12. Mr. Ganguli next contended that Section 16 of the Specific Relief Act, 1963 provides a personal bar to relief in Clause (a) in that the specific performance of the contract cannot be enforced in favour of person who would not be entitled to recover compensation for its breach. Mr. Ganguli contended that , the agreement did not provide any compensation for its breach and accordingly the specific performance of the contract claimed in the suit should not be granted. This argument has no appeal to me as the plaintiffs would certainly be entitled to compensation against the defendant for the expenses thrown out by the plaintiffs in connection with the earlier suit, even though there is no provision for compensation provided in the body of the agreement in the event of its breach. Mr. Ganguli has also relied on Section 20, Sub-section (2), Clause (b) that the performance of the contract would involve no hardship on the plaintiff while it will impose hardship on the defendant. This argument is not understandable inasmuch as the plaintiffs in absence of the performance of the agreement by the defendants are being illegally deprived of the possession of the properties of schedules A and B and their usufructs while it has not been suggested either in pleadings or in evidence or even in argument that the price of Rs. 1600/-for schedules A and B property deposited in court is in any way Inadequate. This argument, therefore, has also no merits and must be rejected.
13. As all the contentions on behalf of the appellant fail the appeal is dismissed. There will be no order for costs in this court.
14. Mr. Ganguli prays for leave under Clause 15 of the Letters Patent, but the prayer is refused.