RAMJAS MARWARI Vs. BARUNI MAHTON

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellants for recovery of Rs. 806 4-0 as damages from the defendants. The suit has failed in both the Courts and the plaintiffs appeal to this Court.

(2.) It appears that on 16th December, 1925, the appellants and respondents Nos. 1 to 3 and 5 to 11 filed a petition of compromise in the lower Appellate Court. Subsequently some of those respondents repudiated the petition of compromise. Having regard to the petition of compromise the plaintiffs were entitled to a decree as against respondents Nos. 1 to 3 and 5 to 11 unless it could be established by those respondents that they had no knowledge of the terms of settlement. But this question has not been investigated by the learned Judge in the Court below. All that he says in regard to this point is as follows:

(3.) I am unable to agree with this conclusion. The defendants who repudiated the petition of compromise were, no doubt, entitled to ask the Court to investigate the question whether they had, in fact, entered into the compromise. But apart from that the plaintiffs were certainly entitled to a decree on the footing of the settlement as against respondents NOS. 1 to 3 and 5 to 11. In these circumstances I am of opinion that the learned Judge in the Court below must hold an enquiry under 0rder XXIII, Rule 3 of the Code. If he finds that these respondents never entered into the settlement at all and that there was a fraud practised upon the Court itself, then he will reject the petition of compromise and uphold the decree which he has already passed in this case as against the respondents. If, on the other hand, he finds that those respondents did, in fact, enter into the settlement, then he must give a decree to the plaintiffs as against those defendants on the footing of the petition of compromise. The case must, therefore, go back for trial of the question of compromise as between the plaintiffs and respondents Nos. 1 to 3 and 5 to 11. The plaintiffs are in any event entitled to a decree on the footing of the petition of compromise as against respondents Nos. 5 and 6 who have not repudiated the petition of compromise. So far as the other respondents are concerned the appeal fails and must be dismissed as against them with costs.