A suit for specific performance of contract is barred under Section 47 of the CPC if the earlier suit had ended in a decree by compromise. The plaintiff should have levied execution instead of maintaining an independent suit.

( 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 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 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 court's 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 under section 47 of 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. 513 of 1971, and 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 Calwn 1007 and (2) Sadananda v. Union of India, reported in 60 Calwn 99. I have gone through those decisions. Those decisions squarely upheld 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, relies upon another Division Bench decision in Charu Ch. v Birendra Nath, reported in 73 Calwn 645. 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 terms of compromise cannot be so satisfied. In order to enforce a term of a decree of compromise which ended in dismissal it can only be satisfied by means of