Nagoor Gani alias Rajamani and Others vs Gandhi Meenal and Others

Sivasubramaniam, J.—C.R.P. Nos. 2742, 2843 of 1986, 606 and 635 of 1987 are directed against the orders passed in I.A. Nos. 11/85,

515 of 1984, 84 of 1985 and 514 of 1984 respectively in O.S.No. 161 of 1979 on the file of the Sub Court, Ramnad at Madurai, and

C.R.P.Nos. 4081 of 1986 and 151 of 1987 are directedagainst the orders passed in E.P.No. 11 of 1986 in O.S.No. 161 of 1979 on the file of

the said Court.

These revision petitions arise out of the proceedings relating to the estate of late Muthuramalinga Thevar who was one of the most popular

leaders of Tamil Nadu who owned extensive movable and immovable properties situated in various villages in Ramanathapuram District. During his

life time, he filed the suit in O.S.No. 61 of 1929 on the file of the Subordinate Judge, Ramanathapuram at Madurai claiming a half share against his

father. The 44th defendant in that suit was one Indrani Ammal who was born to the father of Muthuramalinga Thevar through one Nagammal. In

the said suit, late Muthuramalinga Thevar questioned the marriage of Nagammal with his father. Since Nagammal died before suit, Indrani Ammal

was impleaded as the 44th defendant in that suit. Ultimately, the marriage between Nagammal and the father of late Muthuramalinga Thevar was

upheld and the gift deed executed by Muthuramalinga Thevar''s father was also upheld. Subsequently, Muthuramalinga Thevar died in 1963. Late

Muthuramalinga Thevar died as a bachelor. Subsequent to his death, two suits in O.S.Nos. l of 1964 and 9 of 1970 came to be filed in respect of

his estate by third parties. But they were ultimately dismissed. In O.S.No. 9 of 1970, the said Indrani Ammal was impleaded as the fifth defendant.

Even though in the earlier proceedings, claims were made not he basis of a will alleged to have been executed by late Muthuramalinga Thevar, no

decision was rendered on the question of succession to his estate.

In these circumstances, one Gandhi Meenal, who is the uncle''s grand daughter of late Muthuramalinga Thevar, filed the suit in O.S.No. 161 of

1979 on the file of the Sub Court, Ramanathapuram at Madurai for possession of the properties left behind by late Muthuramalinga Thevar and for

mesne profits claiming to be his sole heir. The said Indrani Ammal got herself impleaded as the 18th defendant in the suit and after her death, her

daughter Nagoor Gani alias Rajamani and son Muthuramalingam were added as defendants 19 and 20 in the suit who claimed the properties as

the sole heirs of late Muthuramalinga Thevar. In the suit, both the plaintiff as well as the 18th defendant Indrani Ammal questioned the validity of

the will. But each one of them claimed exclusive right to the properties as the sole heir. The suit was taken up for trial and evidence was let in and

arguments were advanced on behalf of the parties. Judgment in the suit was reserved. At that stage the plaintiff, who was the first respondent in all

these revision petitions, and some of the defendants entered into a compromise to the effect that all the properties of late Muthuramalinga Thevar

should vest in the trust called ""Pasumpon Muthuramalinga Thevar Arakkattalai"" and that the same should be managed by Committee of trustees

one of whom is the plaintiff Gandhi Meenal. Before entering into the compromise, the plaintiff made an endorsement that the defendants 19 and 20

are given up. They filed the petition in I.A.No. 515 of 1984 to record the compromise. But no notice was given to the petitioners in these revision

petitions Hence, the defendants 19 and 20 filed the petition in I.A.No. 514 of 1984 for receiving the additional written statement claiming

possession of the suit properties after paying a court-fee of Rs. 5,104.75. They also filed an I.A.No. 11 of 1985 praying not to record the

compromise entered into between the other parties. Yet another application was filed by them in I.A.No. 84 of 1985 for transposing them as

plaintiffs 2 and 3 in the suit on the ground that the plaintiff and some of the defendants colluding together are trying to defeat their rights in the suit

properties. All these petitions were heard and orders were passed on 28.10.1985. The trial Court allowed the petition in I.A.No. 515 of 1984 and

recorded the compromise. The other petitions were dismissed. In pursuance of the said compromise, a scheme decree was passed by the trial

Court containing various clauses and directing that all the properties should vest in the said trust. Detailed provisions were made in the scheme

decree for the management of the properties and various endowments and for succession of the trusteeship. However, there was no decree for

possession on the basis of the claim made in the plaint. Against the said orders, C.R.P.Nos. 2742 and 2743 of 1986, 606 and 635 of 1987 have

been filed before this Court.

In pursuance of the Scheme decree, the plaintiff filed E.P.No. 11 of 1986 for taking delivery of possession of the properties. Defendants 5 and

6 resisted the execution on the ground that they were not parties to the compromise and as such the compromise decree is not binding on them. It

was further contended that even if the compromise decree is valid, there is no decree for possession directing delivery of properties in the

possession of the said defendant to the plaintiff. However, the executing Court held that though there is no provision for a decree for recovery of

possession, it is only an accidental omission on the part of the trial court and that the relief relating to possession must be deemed to have been

granted by the trial Court. Against the said orders, the 6th defendant has filed C.R.P.No. 151 of 1987 and the fifth defendant has filed C.R.P.No.

4081 of 1986.

In so far as the compromise is concerned, the trial Court proceeded on the basis that the plaintiff has got an unqualified right to give up any

defendant in the suit and show, having given up defendants 19 and 20 in the suit by making an endorsement on the plaint, is entitled to enter into a

compromise with the other defendants. As the 18th defendant, the mother of defendants 19 and 20 got herself impleaded as a party in the suit, the

plaintiff did not ask for any relief against her and, therefore, the plaintiff was entitled to exonerate defendants 19 and 20. In so far as the

transposition of defendants 19 and 20 as plaintiffs 2 and 3 was concerned, the trial Court came to the conclusion that Order 23, Rule 1-A, C.P.C.

is no applicable, since the defendants 19 and 20 were given up long before the petition for transposing them as plaintiffs 2 and 3 was filed.

Veluswamy, learned Counsel appearing for defendants 19 and 20, who are the petitioners in C.R.P.Nos. 2742, 2743, of 1986, 696 and 635 of

1987, laid much importance on the claim made by the defendants 19 and 20 for transposing them as plaintiffs 2 and 3 in the suit. He relied upon

the provision in Order 23, Rule 1-A, C.P.C. which reads as follows:

Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order

1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided

as against any of the other defendants.

According to the learned Counsel, the plaintiff has not got an unqualified right to withdraw the suit in sch a way as to defeat the rights of defendants

19 and 20. There is identity of interest between the plaintiff and defendants 19 and 20 as far as the Will alleged to have been executed by late

Muthuramalinga Thevar is concerned and, therefore, the plaintiff is not entitled to abandon the claim or enter into a compromise behind their back.

In support of his contentions, he relied on the following decisions: Shrimati Rani Bai Vs. Shri Yadunandan Ram and Another, considered a case

wherein one of the plaintiffs withdrew her plaint and the statement of claim made therein so far as she is concerned. On the basis of such a

compromise, a decree was passed in favour of the defendant who claimed to be in possession as a trespasser and on the basis that the other

plaintiff had no right in the properties. In those circumstance, the Supreme Court held that the other plaintiff had also certain rights in the properties

and therefore the compromise entered into between one of the plaintiffs and the defendant under Order 23, Rule 1, C.P.C. is not valid. This

decision is not applicable to the facts of the present case.

In R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao, , the petition suit was sought to be withdrawn under Order 23, Rule 1, C.P.C. after one of

the defendants made an application invoking the provisions of the Partition Act. In those circumstances, the Supreme Court came to the conclusion

that as soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale u/s 3 of the Partition Act, he obtains an

advantage in that the Court is bound thereafter to order a valuation and proceed according to the provisions of the Partition Act. The Supreme

Court proceeded on the basis that once the defendant had gained such an advantage, it was not open to one of the sharers to withdraw the suit in

order to defeat the rights of the other sharers. These principles also will be of no help to the petitioners herein. In Mathuralal and Others Vs.

Chiranji Lal and Others, , it was held that a plaintiff cannot be allowed to withdraw his suit so as to deprieve the defendant of any right that may

have accrued to him and that a Court cannot allow a plaintiff without the consent of all the defendants to withdraw a suit in which a preliminary

decree for dissolution of partnership and rendition of accounts has been passed. It was a case where the matter was referred to arbitration and at

that stage the suit was sought to be withdrawn and, therefore, it has no relevance for the purpose of the present case.

In Karuna Shanker Dube Vs. Krishna Kant Shukla and Others, , it was held that in a partition suit where a third party files an application under

Order 1, Rule 10, C.P.C. for impleading him as a party, the court should first dispose of the said petition before recording in a compromise

between the original parties to the suit and that the Court should not record a compromise when it is mala fide. In the present case, the petitioners

were already parties to the suit and they had filed a petition to transpose them as plaintiffs and the same was disposed of along with the petition to

record the compromise. Therefore, on facts, the Allahabad case may not apply. The decision in Mathura Singh and Others Vs. Deodhari Singh

and Others, also relates to a partition suit and as such it may not apply to the facts of the present case. In P.R. Nallathambi Goundan Vs. Vijaya

Raghavan and Others, , a Bench of this Court held that the compromise effected by the managing member of a family must be bona fide and for

the benefit of the family as a whole. It was further held that the persons, whose interests would be affected by the result of the litigation, are entitled

to come on record to protect their interests when those are jeopardised by the persons already on record. It was also a case where an application

was made after the preliminary decree was passed and in those circumstances, this Court held that the compromise cannot be recorded without

impleading the parties who are claiming a share in the properties. In Ajita Debi Vs. Musst. Hossenara Begum and Others, , it was held that where

an application has been made under Order 23, Rule 1, C.P.C., the Court cannot compel the plaintiff to proceed with the suit and the defendant

cannot be allowed to complain against such order. It was further held that where there is an affinity or identity of interests between the plaintiffs and

one or more of the defendants, the plaintiffs cannot be allowed to withdrew the suit if an application on behalf of such defendants having an interest

in the suit is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants under

Order 1, Rule 10 C.P.C. It was a case of withdrawal of the suit and it does not deal with the case of compromise.

Veluswamy, learned Counsel for the Petitioners further contended that the provisions under Order 23, Rule 1-A, C.P.C. would squarely apply

to the facts of the present case as there is identity of interest between the plaintiff and defendants 19 and 20 in so far as the will is concerned. As

both the parties are claiming as heirs of late Muthuramalinga Thevar on the ground that the will set up by the other party is not valid, there is identity

of interest in so far as that aspect is concerned. He submitted that defendants 19 and 20 had interest in the properties and, therefore, no

compromise could be; effected in such a way as to affect their interests. He relied on the decision reported in Malla Qadir Vs. Malla Mahmadoo

and Others, which followed the decision of the Patna High Court in Basudeb Narayan Singh and Others Vs. Shesh Narayan Singh and Others,

which reviewed the entire case law on the point. The Court held that the plaintiff, under Sub-Rule (1) of Order 23 C.P.C. has the right to withdraw

a suit at any stage but such right is limited to the extent that it does not result in defeating a right which has already vested in the defendant. Both

these decisions relate to cases where there was an appointment of a Receiver by the Court at the time of the compromise. In those circumstances,

the Jammu and Kashmir High Court and the Patna High Court came to the conclusion that since the property had passed into custodia legis, the

suit could not have been allowed to be withdrawn against the defendant who had acquired a right to see that the properties are not alienated by the

appointment of a Receiver. By the order of the Court, the right of the defendant not to allow the plaintiffs to waste the property had vested in her

and this right would be defeated if the suit was allowed to be withdrawn. Here again, we find that the said principles cannot be applied to the facts

of the present case. The decision in Bangaru Patttabhirmayya and Others Vs. Bangaru Gopalakrishnayya and Others, also relates to a partition suit

and it was a case of withdrawal of the suit.

Ananthakrishnan Nair, learned Counsel appearing for the respondents repelled the contentions of the learned Counsel for the petitioners.

According to him, the 18th defendant was not originally added as a party to the suit, but she was impleaded only on her application. As the plaintiff

did not claim any relief against her, the suit was dismissed against defendants 19 and 20 as not pressed. There is no identity of interest between

these parties since both the parties claimed as the sole heir of late Muthuramalinga Thevar. The claim of one excludes the claim of the other and,

therefore, there cannot be any transposition in this case. In Kuppuswami Reddi v. Pavanambal (1950)1 M.L.J. 524, a Bench of this Court held

that under Order 23, Rule 3 of the Civil Procedure Code, a compromise cannot be attacked by allegations that it is voidable compromise brought

about by fraud, undue influence and duress and that provided the compromise is lawful, that is, not contrary to law, the Court is obliged to record

it. It is a case where the compromise was challenged by one for the parties to the compromise. He relied on the decision reported in Harishanker

Prasad and Others Vs. Bishwanath Prasad and Others, , where a Bench of the Allahabad High Court held that if the plaintiffs took the risk, if any,

of expunging a defendant from their suit, that cannot be a ground of unlawfulness of the compromise. On the basis of these principles, learned

Counsel contended that according to the plaintiff, defendants 19 and 20 have no interest in the properties, and, therefore, their rights are not

affected in any manner by compromise, since the suit itself has been dismissed against them.

The two important questions that arise in these matters are whether the compromise entered into between the plaintiff and some for the

defendants is valid in law and whether the defendants 19 and 20 are entitled to be transposed as plaintiffs in the suit notwithstanding the fact that

the suit is not pressed against them. In so for as the compromise is concerned, Order 23, Rule 3, C.P.C. provides for compromise of suit which

reads as follows:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in

writing and signed by the parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit,

the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it

relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter

of the suit.

Provided that the subject matter of the agreement, compromise, or satisfaction, insofar as it differs from the subject-matter of the suit, is within the

territorial and pecuniary jurisdiction of the court concerned;

Provided further that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall

decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded,

thinks fit to grant such adjournment.

Explanation: An agreement or compromise which is voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the

meaning of this rule.

It is seen from the above proposition that after the institution of the suit, it may be adjusted by the parties either wholly or in part by any lawful

agreement of compromise in writing and signed by the parties. It is open to the defendant to satisfy the plaintiff in respect of the whole or any part

of the subject-matter of the suit. In such an event, when an application is made by the parties for recording the compromise, the Court is bound to

record such an agreement, compromise or satisfaction and pass a decree in accordance with the same in so far as it relates to the parties to the

suit. Prior to the amendment of the CPC in 1976, such a compromise cannot be effected in respect of the properties which are not the subject

matter of the suit. However, after the amendment, the rule provides for such a compromise being entered into in respect of other matters also. The

only consideration would be that the Court must be satisfied that there has been a lawful agreement or compromise. The Explanation to the above

rule itself makes it clear what is a void or voidable agreement. An agreement or compromise which is void and voidable under the Indian Contract

Act shall not be deemed to be lawful within the meaning of this rule. Therefore, we have to see in this case whether the compromise is not lawful.

Even though there is considerable doubt as to the jurisdiction of the Court to pass a Scheme decree in a suit filed only for possession of the suit

properties, the compromise decree is not being challenged on that ground. It is a moot point to be decided whether the amended provision of

Order 23, Rule 3, C.P.C. would enable the parties to enter into such a compromise and invite the Court to pass a decree in terms thereof. It is

significant to note that none of the parties to the compromise had challenged the same on any of the grounds contemplated under the Contract Act.

It is only the third parties to the compromise who are objecting to the execution of the compromise decree. After all, the compromise is an

agreement between the parties to the same and the Court merely puts its seal on the agreement and passes a decree in terms of such an agreement.

In this view of the matter, it is not possible to hold that the compromise is unlawful in view of the fact that the parties have not challenged the

decree as such.

Insofar as the right of the defendants 19 and 20 to transpose themselves as plaintiffs is concerned, I have already extracted the provision of

Order 23, Rule 1-A C.P.C. This new rule has been enacted in order to enable a defendant, who has identical interest, from being denied his

interest if he rested on the success of the plaintiff''s suit and the plaintiff wanted to withdraw the suit. Before a defendant could invoke this

provision, it must be shown that the plaintiff is seeking to withdraw or abandon his claim under Rule 1 of Order 23, C.P.C. It is a condition

precedent to enable a defendant to get himself transposed. The principle that follows this rule is that there must be identity of interest between the

plaintiff and such a defendant who wants to transpose as a plaintiff. It must be a suit where the defendant is entitled to succeed automatically on the

success of the plaintiff in the suit. Such a defendant is usually called as a proforma defendant. To put it in other words, both the parties are

projecting the same claim against the other defendants, and, therefore, the success of one is the success of the other. In such cases, the law comes

to the rescue of such a defendant so that the plaintiff, who is having a similar right, cannot defeat the rights of the defendant by colluding with the

other contesting defendants. Though Courts lean against multiplicity of suits, they would not permit sch transposition just to give a chance to a

litigant to avoid filing a suit or permit him to take advantage of the suit filed by his adversary against him by becoming a plaintiff and trying to bring

out the averments and reliefs which are contrary to those claimed by the original plaintiff, as held in Jethiben Vs. Maniben and Another, . Here in

this case, we find that the suit is for possession on the basis that the plaintiff is the exclusive owner of the same. On the other hand, it is the case of

the defendants 19 and 20 that they are the exclusive owners of the property. Practically, there is a serious fight between the plaintiff and the

defendants 19 and 20. The plaintiff in this case cannot be deemed to have withdrawn or abandoned her claim by entering into a compromise with

the other defendants. What has been done is, instead of the plaintiff getting actual possession of the properties, she allowed the same to be vested

in a Trust to be managed by herself and some others. In such circumstances, it is not possible to hold that she has abandoned her claim in full.

Secondly, if we apply the test of identify of interest, it is impossible to come to a conclusion that the parties have such identical interest. If

defendants 19 and 20 are transposed as plaintiffs 2 and 3 in the suit, there will be two sets of plaintiffs having conflicting claims between

themselves. In such a case, the main fight would be between the plaintiffs and there is no common platform on which they can stand, and fight the

defendants. Defendants 19 and 20, after transposition as plaintiffs, cannot agitate their rights against the interest of the original plaintiff. It is not a

case where the existing plaintiff has vanished from the scene by abandoning her claim so that the proposed plaintiffs can take up the case and get a

decree in their favour on the averments contained in the plaint already. On the other hand, she is very much in the suit and show has sought for a

compromise decree being passed in recognition of her rights. Therefore, in the presence of the plaintiff, the defendants 19 and 20 cannot be

permitted to be impleaded as plaintiffs in such a way as to defeat the rights of the plaintiff herself.

Veluswami, learned Counsel for the petitioners relied on the decision reported in Hari Ram Fatan Das and Others Vs. Kanhaiya Lal and

Others, in support of his contention that different decrees can be passed between the plaintiffs. He cannot draw any assistance from this decision

because it is a case where there was no conflict between the plaintiffs. Similarly, the decision in Pinapati Mrutyumjaya v. Pinapati Janakamma ILR

26 Mad.647, wherein the widow and the adopted son of a deceased person joined as plaintiffs in a suit to recover money payable by the

defendants to the deceased, is of no help to the petitioners herein. As the right of the adopted son was questioned to claim the amount, the widow

also joined as plaintiff. But they agreed that a decree can be passed in favour of either one of them.

In the result, it must be held that the compromise cannot be set aside in these proceedings. However, it is made clear that the said compromise

decree is not binding on the defendants 19 and 20 in any manner. It was only a decree for bare possession and, therefore, it is always open to

these defendants to agitate their rights in a separate suit. Similarly they are also not entitled to transpose as plaintiffs. Therefore, C.R.P.Nos. 2742,

2743 of 1986 and 606 and 635 of 1987 must fail.

Coming to C.R.P.No. 4081 of 1986, I find that it has been filed against an order of delivery made against the fifth defendant in E.P.No. 11 of

1986 in O.S.No. 161 OF 1979. S.V. Jayaraman, learned Counsel appearing for the petitioner submits that the petitioner is in possession of items

27, 38 to 33 and 51 in A Sch.1, items 17 to 25 and items 144 and 208 in B Schedule and items 1 to 70 in C Schedule and the fact that she is in

possession of some of the suit properties is mentioned in paragraph 10 of the plaint itself. On the basis of the said averment, a relief for possession

as prayed for in Cl.(b) of the last paragraph of the plaint. According to the learned Counsel, admittedly the fifth defendant has not signed the

compromise memo and the copy of the decree itself shows that he was set ex parte. It was contended that the decree passed in terms of the

compromise is only a scheme decree to which the fifth defendant was not a party and, therefore, the said compromise is not binding on him and the

decree as such is inexecutable against him. It is seen that the memo of compromise filed by the parties clearly states that it is an agreement between

the parties to the compromise and the decree was passed in terms of the sid compromise. The decree itself describes it as a scheme decree giving

retrospective effect from 30.10.1963. The various provisions found in the scheme decree show that there is only a declaration that the properties

of late Muthuramalinga Thevar would vest in the Trust and detailed provisions have been made for the management of the said properties.

The objection raised by the fifth defendant for the execution of the Scheme decree is that the Scheme decree, having been passed only in terms

of compromise, to which the fifth defendant is not a party, is unenforceable against him. Admittedly he was set ex parte and he has not signed in the

compromise memo. According to the amended Rule 3 of Order 23 C.P.C., a compromise must be in writing and signed by the parties. Therefore,

the said compromise, to which the fifth defendant is not a party, is certainly not binding on him. A further contention was raised that the scheme

decree as such is not executable, since no relief is granted for delivery of possession of the suit properties which are in the possession or various

defendants. Especially when the suit itself is for possession, a decree must direct delivery of possession and in the absence of such a decree, it is

not possible to hold that such a relief is inherent in the decree. Learned Counsel for the petitioners relied on the decision in Sree Sree Iswar Sridhar

Jew Vs. Jnanendra Nath Ghose and Others, which held as follows:

Where the decree merely refers to the scheme framed by the referee and merely confirms the same, and the scheme only declare the rights of the

shebaits in the property and does not give any provisions of a directory nature the decree is not executable.

It must be mentioned here that there cannot be a universal rule that a scheme decree cannot be executed. It depends upon the circumstances of

each case. Its executability would depend upon the construction of the decree in each particular case. In Munshi Ram Vs. Banwari Lal, , it was

held that a consent decree can be executed only in respect of the operative clause in the compromise. Further reliance was place on K.

Panduranga v. State of Mysore AIR 1965 Mys.244 which held that the decree is not binding on others who are not parties to the consent decree.

C.R.P.No. 151 of 1987 is also directed against the decree passed in E.P.No. 11 of 1986. The petitioner is the sixth defendant in the suit and

he also remained ex parte in the suit. T.N. Vallinayagam, learned Counsel appearing for the petitioner in C.R.P.No. 4081 of 1986 adopted the

arguments of S.V. Jayaraman, who is appearing in the other revision petition and submitted that in this case it is not a decree at all and even

otherwise it is not a decree for possession. According to him as for as the 6th defendant is concerned, no relief was claimed against him in the suit

and, therefore, there was nothing for him to contest the suit.

In those circumstances, he remained ex parte. He claimed to be the President of which is a registered Society under the Societies Registration Act

and that the suit properties were endowed in favour of the said Society. Admittedly, the sixth defendant is also not a party to the compromise. He

has not signed in the same. According to Jayaraman and Vallinayagam, the compromise decree is silent about the delivery of possession insofar as

the defendants are concerned and in C1.50, there is a provision enabling the plaintiff to recover possession of the properties omitted in the

compromise decree; but standing in the name of late Muthuramalinga Thevar. As there is a specific relief for taking delivery of possession in so far

as the properties which are not the subject-matter of the suit, the absence of such a relief in respect of the suit properties shows that the plaintiff has

given up such a relief for the reasons best known to her. It is the contention of the learned Counsel that there is no ex parte decree against the

defendants 5 and 6, but instead there is only a scheme decree which is declaratory in character. According to them, such a decree is not

executable.

Ananthakrishnan Nair, learned Counsel appearing for the respondents submits that defendants 5 and 6 were ex parte and, therefore, they are

parties to the decree even though such a decree was passed on the basis of a compromise. According to him, even a compromise decree is

binding on the ex parte defendants. He relief on the decision in Sheo Behari Lal v. Makran Singh AIR 1935 Oudh 358 which held as follows:

Where the case is not one of the court passing a decree against certain persons on the basis of a compromise to which they were not parties but

merely one of a decree being passed in terms of the compromise against persons, proceedings against whom were ex parte, no question of want of

jurisdiction or of the decree being a nullity arises. The defect is no more than one of an irregular exercise or improper assumption of jurisdiction.

The persons aggrieved may have their remedy by means of proper proceedings against the irregularity complained of, but they cannot in the

circumstances treat the decree as a nullity.

Ananthakrishnan Nair made a strong reliance on the decision of this Court reported in Revur Venkatasubba Rao and Others Vs. Gurijala

Venkataramanayya and Others, , wherein a Bench of this Court held as follows:

A court executing a decree cannot go behind it. In execution proceedings, the Court is only construing the decree and not considering its merits.

Hence where a decree in terms of a compromise is passed against persons parties to it as well as ex parte defendants, the decree is binding against

all persons against whom it was made unless and until set aside by appropriate proceedings. Its validity cannot be challenged in execution

proceedings.

In Kannayya v. Ramanna 31 I.C. 21, another Bench of this Court held that such a decree is binding upon the ex parte defendants. These decisions

proceed on the basis that the executing Court cannot go behind the decree. It can ignore the decree only in a case where the decree is a nullity

having been passed by the Court which has no jurisdiction to pass such a decree. The only remedy open to the aggrieved party is to file an appeal

or to challenge the compromise in appropriate proceedings.

On a careful analysis of the various decisions cited at the Bar, there cannot be any dispute regarding the principle that a compromise decree is

binding on the ex parte defendants also. It is no doubt true that the decision in Venkatasubba Rao v. Venkataramanayya AIR 1948 Mad.397 is

sought to be distinguished on the ground that there was a specific clause in the compromise itself that the decree should be against the ex parte

defendants also. In my view, it makes no difference in so far as the general principle is concerned. A perusal of the decree shows that even though

it was passed in pursuance of a compromise between some of the parties, the preamble of the decree shows that the decree is against all, as

otherwise, the other defendants would have been given up as was done in the case of defendants 19 and 20. If that is so, the further question that

arises for consideration is whether the scheme decree passed in the suit is binding on the ex parte defendants. It is to be noted again that the suit

was filed only for bare possession and, therefore, the parties who are not inclined to contest the claim, could have remained ex parte on the

impression that the decree that would be passed is one for mere possession. Therefore, even accepting the principle that a compromise decree is

binding on the ex parte defendants, we have to see how far such a principle can be applied to a case where the compromise decree is in respect of

a totally extraneous matter which is not the subject-matter of the suit. What is binding on the ex parte defendants is a decree which could have

been passed in terms of the prayers asked for in the plaint. If the compromise decree provides for matters which are totally unconnected with the

reliefs asked for, it is difficult to apply the said general principle.

In this view of the matter, we have to strictly construe the compromise decree to find out whether the relief asked for in the plaint has been granted

under the compromise decree. If there is a direction to the defendants 5 and 6 to deliver possession, then there is no difficulty in holding that they

are bound by the decree to that extent. Admittedly, there is no specific clause in the decree empowering the plaintiff or the Trustees to take

possession from the defendants 5 and 6. As already pointed out, C1.50 of the decree refers to taking up of possession of the properties which are

omitted in the compromise. The very preamble of the decree says that the following Scheme decree shall come into force with retrospective effect

from 30.10.1963. Therefore, essentially it is a bare Scheme decree without providing for any consequential relief in so far as defendants 5 and 6

are concerned. Though it is not open to them to challenge the decree in the execution proceedings, it is open to them to say that the decree as such

is not executable against them. This is not on the basis of the decree being a nullity, but on the ground of absence of proper relief. It is no doubt

true that in certain cases, the Court can always grant reliefs in the absence of a specific provision in the decree in order to give effect to the decree

itself. Those are cases where a consequential relief automatically follows on the principle relief. So far as the present case is concerned, such a

principle cannot be applied. Therefore, the objections taken by defendants 5 and 6 will have to be sustained. It is open to the parties, who are

entitled to the suit properties, to seek appropriate reliefs in separate proceedings, if so advised. These two civil revision petitions will have to be

allowed.

In the result, C.R.P.Nos. 2742 an d2743 of 1986, 606 of 1987 and 635 of 1987 are dismissed. C.R.P.Nos. 4081 of 1986 and 151 of 1987

are allowed. However, there will be no order as to costs in all these revision petitions.