G SARANGAPANI IYENGAR Vs. KRISHNAN

JUDGEMENT

(1.) This second appeal arises under the following circumstances. The appellant as plaintiff in O. S. No. 212 of 1953 on the file of the District Munsif, Madurai, sued to recover possession of certain property and for mesne profits from the defendants in that suit. Those defendants consisted of the father, the mother and the four minor defendants. The case set up by the present appellant (plaintiff in that suit) was that item of property had vested in him by reason of certain earlier partition arrangements which had been effected. The defendants in that suit resisted that contention and attacked the alleged partition arrangements as sham and colourable transactions. Issues were joined, and at the time of trial, the plaintiff in that suit was challenged to take a special oath for the purpose of resolving the controversy whether there was a valid partition entitling the plaintiff to the property in question. Such an oath was taken, and, thereupon, the learned District Munsif passed a decree for possession of the property and for mesne profits, as prayed for in that suit.

(2.) The minor defendants in that suit, as plaintiffs in the suit leading to this appeal (O. S. No. 197 of 1957, District Munsif's Court, Madurai town), alleged that in so far as the decree in O. S. No. 212 of 1953 laid upon them the liability to pay mesne profits to the successful plaintiff therein, who is the appellant here, is vitiated for the reason that the decree was based on a compromise which required the permission of the court, and that such permission had not been obtained. In claiming that the decree was based on a compromise, what is really contended is that, in putting the plaintiff in that suit on a special oath in resolving the controversy in that suit, the challenge to take the special oath and to abide by the result, thereof, virtually amounted to a compromise, which should invite the application of Order 32, Rule 7. The minors, as plaintiffs, however, did not attack that portion of the decree, which related to the possession of the premises in question, which also resulted from the taking of the special oath.

(3.) The contention of the appellant as defendant in this suit was that it was not a compromise and that no permission of the court was required for inviting the opposing parties to take the oath under the Special Oaths Act.