SYED KHURSHEED ALI Vs. MUSAMMAT WAZIR-UN-NISSA

JUDGEMENT

(1.) This is an appeal against a decree of the District Judge of Aligarh. The respondents object that no appeal lies inasmuch as the decree was passed upon a compromise recorded under Section 375 of the Civil P. C. 1882. To this the appellants reply (1) that the learned Judge should have disregarded the compromise inasmuch as they, the appellants, resiled from it before or as soon as it was brought before the Court, (2) that the compromise was unlawful and (3) that the compromise should have been disregarded as plainly unworkable. The following facts are admitted:In July 1871, the respondent Ashik Ali mortgaged certain property to Basit Ali, father of the appellants. In November 1873, Ashik Ali mortgaged other property to the same person. In July 1905, Ashik Ali sold both properties to the respondent, Warisunnissa. After the death of Basit Ali, the appellants in April 1906 brought a suit upon the mortgage of 1871 and obtained a decree on July 15 1907. In July 1906, the appellants brought the present suit against the respondents for preemption of the properties sold to Waris-un-Nissa. That suit was dismissed on July 15 1907.

(2.) Ashik Ali appealed in the mortgage suit and the appellants appealed in the pre-emption suit. The parties then arrived at a compromise which was reduced to writing and registered. It provided that the appellants should take over the properties mortgaged to them in satisfaction of all claims under the mortgage, the amount of profits due to them up to the date of delivery of possession to be decided by an arbitrator named. The suit for pre-emption was to stand dismissed but the respondents were to pay the appellant's costs up to the date of the compromise and Ashik Ali was to relinquish the exproprietary rights which would accrue to him on the property being transferred to the respondents, the amount of compensation being determined by the arbitrator and paid either in cash or by means of a transfer of land. It may here be mentioned that the appellants elected in the Court below to pay the compensation in cash. The provision for the transfer of land may, therefore, be disregarded.

(3.) The provision for the ascertainment by arbitration of the amount of profits due to the appellants and the amount payable by them as consideration for the relinquishment by Ashik Ali of his exproprietary rights, is one which is likely to give trouble hereafter but, is my opinion, a Court cannot disregard a compromise merely because it sees that the working out of the compromise is likely to give trouble. Section 375 of the Civil P. C., 1882, which applies to the present case, makes it clear that if a lawful compromise is arrived at, the Court must record it and pass a decree in accordance therewith as far as it relates to the suit.