Nebubala Sardar v. Abdul Aziz Baidya

1. The Second Appeal has been preferred against the judgment and decree passed in Title Appeal No.770 of 1977 by the 3rd Court of the Additional District Judge, Alipore, 24 Parganas.

2. The plaintiff filed a suit for specific performance of contract of sale.

3. The plaint case is that the defendant filed Title Suit No.313 of 1971 against the plaintiff and others. The suit ended in a compromise. One of the terms of the petition of compromise was that the plaintiff would pay a sum of Rs. 550/- to the defendant by Chaitra, 1381 B.S. and the defendant in turn would execute a Deed of Sale in favour of the plaintiff in respect of the suit land. The defendant did not execute the Sale Deed in spite of tender of a sum of Rs. 550/- by the plaintiff. The defendant refused to accept the money and execute the deed. Time was not the essence of the contract. The plaintiff was always ready and willing to perform his part of contract and the defendant did not deliberately discharge his obligation under the contract. Therefore, the suit has been filed.

4. The defence is that the time was the essence of the contract. The plaintiff did not tender the money to the defendant within the stipulated date. The plaintiff was away from his village and went to Bangladesh at the material point of time. The defendant made several attempts to contact the plaintiff in vain and under such circumstances, the defendant could not perform his part of the contract.

5. The trial court decreed the suit. It held that time was not the essence of the contract. According to him, the defendant failed to prove that the plaintiff was away to Bangladesh. The trial court finally decreed the suit. The court of appeal below confirmed the trial courts judgment and decree.

6. This second appeal has been preferred by the defendant being aggrieved by the judgment and decree of the lower Court. The concurrent findings of fact cannot be challenged in this Court of appeal. As a matter of fact, Mr. Bagchi, appearing for the appellant, does not assail any of the findings of the two courts below. He takes a very short and interesting point in this second appeal. His contention is that the suit for specific performance of contract is barred u/ S. 47 6f the C. P. Code and therefore, any decree that may be passed in this suit by the court is void. In other words, he means to say that execution ought to have been levied to reap the benefit under the decree in Title Suit No.313 of 1971, and an independent suit would not lie. In support of his contention reliance is placed upon two decisions, namely, (1) Rabindra Nath v. Dhirendra Nath, reported in 43 CWN 1007: AIR 1940 Cal 82 [LQ/CalHC/1939/115] and (2) Sadananda v. Union of India, reported in 60 CWN 99 [LQ/CalHC/1955/22] : AIR 1956 Cal 317 [LQ/CalHC/1955/22] . I have gone through those decisions. Those decisions squarely uphold the views expressed by Mr. Bagchi. The decree in the instant suit is void. The plaintiff could not institute the suit to enforce the terms of compromise which was incorporated in a decree. In other words, a suit for specific performance of contract would not lie to enforce the terms of the compromise decree. The result under the compromise decree could be achieved only by way of execution. Mr. Chakraborty, appearing for the respondent, relied upon another Division Bench decision in Charu Ch. v. Birendra Nath, reported in 73 CWN 645 : AIR 1970 Cal 34. What is spelt out in this decision is that in case of a decree of dismissal in terms of compromise a separate suit for specific performance of contract would lie. Mr. Bagchi submits that there is no real conflict between the decisions cited by him and the decision relied upon by Mr. Chakraborty. The most distinguishable feature of the two sets of decisions is that while a decree in terms of compromise can only be satisfied by means of execution of a decree, a decree of dismissal in term, of compromise cannot be so satisfied. In order to enforce it term of a decree of compromise which ended in dismissal it can only be satisfied by means of an independent suit unless of course, in the said terms of Compromise it is stated that the term so stipulated in the compromise petition is enforceable by means of an execution despite a decree of dismissal. In the instant case, therefore, the suit filed by Mr. Chakrabortys client can, by no means, succeed since the earlier suit being Title Suit No.313 of 1971 had ended in a decree by compromise. Therefore, the plaintiff ought to have levied execution in order to Satisfy the terms of decree instead of maintaining an independent suit for specific performance of contract. I quite agree with Mr. Bagchi in this behalf.

7. Mr. Chakraborty, however, contends that the appeal lodged by Mr. Bagchi has become infructuous since, in the meantime the plaintiff-decree holder has obtained a deed of sale by way of execution. I am unable to subscribe to the, view placed before me by Mr. Chakraborty. Sometimes the decree is granted by a court of law which is appealed against.The judgment-debtor may not ask for stay of execution and the decree is satisfied by means of execution. The appellant may finally succeed and may ask for the Court to undo the effect in execution. I therefore, hold that in the instant case inspite of satisfaction of the decree the appeal is maintainable. If the appellant succeeds he may ask for restitution.

8. Mr. Chakraborty places reliance upon an observation of the learned Judges made in para 12 of the decision in Charu Ch. v. Dhirendra Nath (supra). What the court found that in such contingency the suit might be converted into a proceeding and vice-versa in view of S.47(2) of the Code of Civil Procedure provided the period of limitation has not expired. In the instant case that period had not expired at the material time. Under sub-sec.(2), it is argued, the court is entitled to convert a suit, which is, otherwise hit by the said section, into a proceeding. Mr. Bagchi rightly contends that in view of deletion of sub-sec.(2) of S.47. C.P. Code by amendment of 1976 such conversion as found by the learned judges is now impermissible. In such contingency the inherent power of the court may be exercised to secure justice. Therefore, the executing court will convert the plaint into an execution petition if the respondent so moves the court. The later suit being Title Suit No.246 of 1975 was filed on 2-5-75 and the earlier suit being Title Suit No.313 of 1971 was decreed on 10-7-75. Obviously, therefore, the plaintiff has sought for his remedy within a year from the date of the compromise decree. Execution within that period was not therefore, time barred. In that view of the matter, the plaint in Title Suit No.246 of 1975 may be treated as an execution petition and the executing court may satisfy the decree passed in Title Suit No.313 of 1971 if not otherwise barred. Mr. Bagchi submits that it cannot be so done for two reasons. The first point is that the finding of the learned Judge is an obiter and therefore, is not binding upon this Court. It is true that the obiter of this Court is not binding upon me. But the legal proposition propounded in the said decision can very well be followed by me to secure justice despite amendment of the Code. The second point is that the relief for specific performance of contract being a discretionary relief the court will not exercise discretion in favour of the plaintiff. As a matter of fact, I do not give any discretionary relief in favour of the plaintiff. Relief has been made available under the compromise decree. I am inclined to set aside the decree only passed by the two courts below and give an appropriate relief as the plaintiff is entitled to in these proceedings. In this view of the matter, the appeal must succeed. The judgment and decree of the court below are set aside and the suit is dismissed. I make no order as to costs. The court of first instance which is the executing court is directed to treat the plaint in Title Suit No.246 of 1975 as an application for execution and proceed with the execution in accordance with law.