NARAYANA PILLAI Vs. RAPHEL

JUDGEMENT

(1.) The appellant is the decree holder in a case for recovery of property on the basis of a superior lease in his favour. The 1st defendant is the lessee of the suit property. According to the plaintiff defendants 2 to 4 were residing in the property under the 1st defendant. During the pendency of the suit the 1st defendant died and his legal representatives were impleaded as defendants 10 to 15. The 3rd defendant also died during the course of the suit and his legal representatives were brought on record as defendants 5 to 9. The contention of the 7th defendant was that the 3rd defendant was not holding the property under the 1st defendant, but only as prior lessee under the landlord himself, and that the 1st defendant himself was only a superior lessee who had not reduced the property to his possession. Before the matter could be tried between the parties the plaintiff and the 1st defendant struck a compromise between them by which they divided the suit properties between them and agreed between themselves that properties may be recovered as per that allotment from the other defendants in the case. The court without adverting to the terms of this compromise merely accepted it and decreed the suit in accordance with the compromise. It is this decree that the decree holder is now seeking to execute against defendants 7 and 9 in respect of the property in their possession. Defendants 7 and 9 contended that there is no executable decree against them. That contention was repelled by the executing court which allowed execution to proceed; but the Subordinate Judge, on appeal, held there was no

(2.) As the decree in the case was only one accepting a compromise and there is no decree by as court against the defendants who were not parties to the compromise, the decree has no operative force with regard to defendants 5 to 9 who were not parties to the compromise. As the court has not passed a decree except to the extent of accepting the compromise, there is no decree against them as such in this case. See the Commentary on Civil Procedure Code by Mulla, 12th Edition, page 986.