1. Plaintiffs 1 to 20 and defendants 4 to 6 and 8 wereproprietors to the extent of 12 annas 15 gundas, 1 kara, 1 krant share of touziNo. 5008 of the Bakhergunj Collectorate. The remaining 3 annas 4 gundas 3 karas2 krants share belonged to defendant 1 Hashem Howladar, as mutwalli of a wakfestate. Revenue for kist March 1936 fell into arrears with the result that asale was held by the Collector on 27th June 1936 under the Land Revenue SalesAct. At that sale defendant 1 in his personal capacity purchased the touzi. Thesale was duly confirmed and defendant 1 got symbolical possession through theCollector. He could not, however, get actual possession of all the lands of thesaid touzi which remained in the possession of those old proprietors who had 12annas 15 gundas odd share. He then brought a suit for possession being titlesuit No. 20 of 1937 of the Second Court of the Subordinate Judge of Backergunj.These old proprietors who had 12 annas 15 gundas share were numbered asdefendants 1 to 25, 28 to 31, 33 and 34 in that suit. That suit was compromisedbetween him and the aforesaid defendants on 21st May 1938 and a consent decreeembodying the terms of the compromise was passed. One of the terms of thecompromise was that defendant 1 before us agreed to convey to the saiddefendants of that suit 12 annas 15 gundas 1 kara 1 krant share of the touzi onreceipt of a sum of money. He having failed to carry out his part of thecontract, the decree was put into execution, with the prayer that he may bedirected to execute the conveyance for that share. He objected under S. 47,Civil P. C., to the execution, contending successfully that the remedy of hisopponents, lay in a suit. This suit for specific performance has accordinglybeen brought against him by the plaintiffs who were defendants 2, 5 to 20, and23 to 25 of that suit of 1937. The remaining defendants of that suit have beenmade pro forma defendants on the allegation, which has not been challenged,that they failed to pay their share of the money which had to be paid on theterms of the compromise to defendant 1 and the whole of it had been paid by theplaintiffs. The suit for specific performance has been decreed by the learnedSubordinate Judge.

2. Defendant 1 has appealed and the points urged on hisbehalf are: (i) that no decree for specific performance ought to have beenpassed as the plaintiffs themselves had not fulfilled their part of thecontract and did not make any attempt to do so; (ii) that the suit for specificperformance is not maintainable at their instance as all the persons in whosefavour the appellant had agreed to convey have not joined as plaintiffs; and(iii) no decree for specific performance can be made in view of the doctrine ofmutuality.

3. The material facts and terms of the solenamah which havea bearing on the first two questions are as follows : In stating them we wouldfollow the description of the parties as given in the suit of 1937. Paragraph 3sets out separately the shares which each one of the parties had in the saidtouzi before the revenue sale. The plaintiff was to get Rs. 1300 towards costsand mesne profits. The said amount was lying in Court. The revenue sale hadleft a surplus after meeting the demands for revenue. That amount was lyingwith the Collector. The compromise was that he, the plaintiff, was to get thesaid sums of money which were in deposit in Court and with the Collector.Paragraph 4 provided that after he, (the plaintiff) had withdrawn the said sumwhich was lying in Court and after the defendants named in para. 3 had paid tohim the sum of money which was lying in deposit with the Collector and afurther sum of Rs. 2510 within Chaitra of that year, he would execute aconveyance in favour of the said defendants according to their shares as setout in para 3 of the solenamah. Paragraph 5, however, provided that if the saiddefendants paid the said sum of Rs. 2510 within Chaitra and required theplaintiff to execute a conveyance in their favour he would be bound to do soand that in that case he himself would withdraw the surplus sale proceeds whichwere lying with the Collector. Paragraph 8 provided that if some of thosedefendants named in para. 3 did not pay their share of Rs. 2510 but the otherspaid the whole amount, then the conveyance in respect of the 12 as. 15 gundas 1kara 1 krant share would have to be executed in favour of those defendants whohad so paid. That clause further provided for adjustment of shares amongstthose defendants who paid the said sum of Rs. 2510.

4. The plaintiffs of the suit before us paid the whole sumof RS. 2510 to the plaintiff of that suit, who is defendant 1 in this suit,within the Chaitra of that year and demanded a conveyance which was refused. Hedid not apply to the Collector for withdrawal of the surplus sale proceeds, nordid he ask the defendants of that suit to help him in withdrawing the same. Thepro forma defendants 4 to 6 and 8 of this suit, who were some of the defendantsmentioned in para. 3 of the solenamah did not pay any part of the said sum ofRs. 2510. On these facts and on the terms of paras. 4, 5 and 8 of the solenamahwhich we have summarised above the first two points urged before us are of nosubstance.

5. The third point depends upon the following facts.Defendants 9 and 10 of the suit of 1937, who are two of the plaintiffs in thissuit, were minors. They were represented by guardians ad litem in the suit of1937. The compromise was entered into on their behalf by those guardians.Whether their guardians had applied to the Court for leave to compromise doesnot appear but the order sheet of Court shows that no order was passed whichgave leave to compromise in express terms. It, however, appears that theCourts attention was drawn to the fact that there were minors, that theirguardians were also entering into the compromise, and that thereafter the Courtrecorded the compromise, and a decree was passed. The question is whether inthese circumstances the decision of the Judicial Committee in 39 I. A. 1 MirSarwarjan v. Fakhruddin Mahomed (12) 89 Cal. 232 : 39 I. A. 1 : 13 I. C. 331(P.C.) on which the appellants advocate relies, is applicable. In that casethe defendant had entered into an agreement to sell immovable property to themanager of the estate of some infants. The infants represented by a next friendbrought a suit for specific performance of that contract. Their suit wasdismissed by the Judicial Committee of the Privy Council. It was held that itwas not within the competence of a manager of a minors estate or of a minorsguardian to bind the minor or the minors estate by contract for the purchaseof immovable property. Accordingly it was held that as a suit for specificperformance could not be maintainable against a minor, a minor cannot sue forspecific performance, the basis being of the doctrine of mutuality. A suit forspecific performance of a contract entered into by his guardian brought againstthe minor would have been defeated as the minor, who has the option ofrepudiating the contract, could in his defence to the suit plead that he wasnot bound by the contract and so avoid its effect. In our judgment, that reasonwould not apply where there is a decree of Court which had incorporated thecontract. No doubt a minor is not bound by a consent decree on the ground thathis guardian ad litem had not obtained leave of the Court to compromise. It isnot however a void decree and he has to avoid it by a proceeding attacking itin a direct manner, and until it is set aside it is binding on him; 12 Mad. 503Arunachdlam v. Muragappa (89) 12 Mad. 503, 58 Cal. 628 Golnur Bibi v. AbdusSamad (31) 18 : A.I.R. 1931 Cal. 211 [LQ/CalHC/1930/200] : 58 Cal. 628 [LQ/CalHC/1930/200] : 130 I.C. 209 at p. 643.

6. This follows from the general principles. No doubt adecree passed on compromise can be avoided on the same grounds on which acontract can be avoided, because a consent decree derives its force from thecompromise. But there is this material difference namely, that a consent decreecannot be attacked collaterally. In (1897) 2 ch. 534 Wilding v. Sanderson(1897) 2 Ch. 534 : 66 L. J. Ch. 684 : 77 L. T. 57 : 45 W. R. 675 Byrne J.stated the principle thus:

A consent judgment or order is meant to be the formal resultand expression of an agreement already arrived at between the patties to theproceedings embodied in an order of the Court. The fact of its being soexpressed puts the parties in a different position from the position of thosewho have simply entered into an ordinary agreement. It is of course enforceablewhile it stands, and a party affected by it cannot, if he conceives he is entitledto relief from its operations, simply wait until it is sought to be enforcedagainst him, and then raise by way of defence the matters in respect of whichhe desired to be relieved. He must, when once it has been completed, obey it,unless and until he can get it set aside in proceedings duly constituted forthe purpose.

7. We accordingly hold that 39 I. A. 1 Mir Sarwarjan v.Fakhruddin Mahomed (12) 89 Cal. 232 : 39 I. A. 1 : 13 I. C. 331 (P.C.) is notapplicable and overrule the third point raised by the appellant. The result isthat this appeal is dismissed with costs. The cross-objection is not pressedand is dismissed without cost.

.

Hashem Howladar and Ors. vs. Sreenath Mistri and Ors.(09.04.1946 - CALHC)