BAPPU MEERAKUTTY Vs. KOYAN MEERAKUTTY

JUDGEMENT

(1.) This is an appeal filed against the decree, based on a compromise, passed by the court below. The petitioner for compromise filed in the court below was signed by the plaintiffs as also by defendants 1, 3, 5, 7 and 8. The appellants before this court are defendants 1 to 4, 6, 8 and 9. Of these, defendants, 1, 3 and 8 are signatories to the compromise petition. It is stated that these signatories resiled from the compromise subsequent to the filing of the petition in Court. Regarding the other appellants, except the 9th defendant, their names were struck off the array of parties by the court below. Mr. P. Govindhan Nair on behalf of the respondents takes a preliminary objection that the decree being one passed on a compromise S.76(3) of the Travancore Code of Civil Procedure (corresponding to S.96(3) of the Indian Code), prohibits this appeal. The answer to this objection given by Mr. Narayana Pillai on behalf of the appellants is that in a case where certain signatories to the compromise petition have resiled from the compromise the provisions of S.76(3) will not be attracted. The question as to whether, when there is a compromise and the court acts upon it and passes a decree on the compromise the signatories to the compromise should continue to abide by the terms of the compromise until the decree is passed in order that the prohibitory provision of

(2.) Mr. Narayana Pillai on behalf of the appellants raised another contention that in cases where the compromise comprised not merely matters which are the subject matter of the suit but those beyond the scope of the suit, an appeal is competent. Whether the compromise in this particular case does not comprise matters foreign to the litigation is not considered by the court below nor is a ground in this regard taken by the appellant in the appeal memorandum. We are not therefore inclined to allow the appellant to argue the point. Yet another point taken by Mr. Narayana Pillai on behalf of the appellants is that the 9th defendant was not a party to the compromise and therefore the appeal so far as he is concerned, should be regarded as maintainable. The 9th defendant filed a written statement in the court below and he was agreeable to a decree being passed in favour of the plaintiffs. It is in terms of that plaint that the compromise appears to have been filed and the decree was passed. Assuming however that the 9th defendant feels that he may be prejudiced by that decree Mr. P. Govindhan Nair, appearing on behalf of the respondents plaintiff is agreeable to have the name of the 9th defendant struck off the file as was done in the case of certain other defendants in the case. We direct that the name of the 9th defendant appellant be struck off the array of parties.

(3.) The litigation being one relating to a trust and the individual defendants not having separate or individual rights in the subject matter of the suit ie., in matters dealt with in the compromise, even if some members be not signatories to the compromise petition, a compromise entered into on behalf of the institution, that is the Trust by some representatives of that Institution may bind the institution. The mere fact that some parties interested who are defendants in this case have not signed the compromise petition may not make the decree any the less binding upon the institution. It is however not necessary in this case to give a definite decision upon this matter. The appeal should therefore be dismissed with costs, subject to the direction given above that the name of the 9th defendant appellant be struck off the array of parties.