SATIS KANTA ROY Vs. JYOTIRUPA DEVI

JUDGEMENT

(1.) IN this case, the appellants desire to establish that a certain compromise decree made on the 17 May, 1920, with reference to a Solenama is capable of enforcement as a matter of execution in that suit, and that the decision of the learned Subordinate Judge of Jessore to the contrary should be set aside as being erroneous in law. It appears that the respondent who was the first defendant in the suit is the widow of the brother of the two persons now the appellants who brought the suit as plaintiff's Nos. 1 and 2. The plaint referred partly to properties being secular properties in which the first defendant had the estate of a Hindu widow and in which the plaintiffs were at all events expectant reversioners. It referred also to certain debuttar properties and the complaint made as to them was to the effect that the defendant No. 1 was not properly performing her duties as Shebait, that the Deb Sheba was not being performed properly but that the money in which the defendant No. 1 had no personal interest and over which the claims of the deity were exclusive was being devoted to certain private purposes of her own. Accordingly, the plaintiffs brought the suit for the purpose of obtaining reliefs in diverse forms. But the one main form of relief for which they pressed was that a Receiver might be appointed in respect of the properties left by the defendant's husband for the management and preservation of the same, for paying off the debts, for carrying on the Deb Sheba and Puja and entertaining guests and feeding them properly, and for preserving the income of the Debuttar properties for its legitimate purpose. It was suggested also that, if the Court found that plaintiffs or either of them are fit to be appointed as Receiver or Shebait, they might be so appointed. That being the position, it appears that in May 1920 the plaint having been presented in 1919 a Solenama was entered into for the settlement not only of the matters in difference in this suit, but also of matters in difference in another suit being suit No. 279 of 1919 wherein the present defendant No. 1 was the plaintiff and of various other matters. That Solenama dealt with great many things. It dealt for example, with the question of adoption, it dealt with the question of moveables raised in the other suit, it dealt with certain buildings and land in a certain village and comprised apparently all the items of dispute that could or did exist between the parties. The third paragraph appears to be devoted particularly to the matter in difference in the suit with which we are now concerned. The effect was that the lady was to entrust to her husband's two brothers the charge of collection in respect of her share of the Debuttar property. They were to be entitled to exercise rights for the recovery of possession. They were to hold the property as trustees or agents of the defendant and to perform all the works of Deb Sheba with the income of the Debuttar property and an additional item of property which the defendant was to convey to them for the purpose. At the end of the third clause of the Solenama, there is a provision that "the said Rani shall execute and get registered within one month from the date of the filing of this Solenama in favour of the said two Kumars the Trust deed or whatever other deed may be deemed necessary in respect of the aforesaid Debuttar and additional property and the kobala in respect of the arrears due. If this is not done they shall be competent to have such a deed executed and registered with the assistance of the Court." IN considering the Solenama, it has to be borne in mind that this is not the only matter as to which further proceedings were looked forward to. IN paragraph 12, for example, a particular claim in the suit in question is specifically dealt with; "The said Kumar Satish Kanta and Kumar Jatish Kanta," that is, the plaintiffs, "give up their claim in the suit No. 295 of 1919...for the appointment of a Receiver for the preservation of the interests of the reversioners in the properties left by the defendant's husband. The said Rani will not be competent to destroy in any way or entitled to do any act injurious to the property.... If, in future, there arises any danger for the destruction of the said property by her action or negligence, then the plaintiffs shall be competent to take the assistance of the Court" there is the same phrase again for the preservation in respect of the said property or to take any other steps in accordance with law. Now, these being the terms of the Solenama when it was presented to Court, the function of the Court was to exercise the power conferred by Order 23, Rule 3, C.P.C. and, under the decisions, the correct way or at least one correct way of so doing would be to record the whole of the Solenama and then specifically by its decree to declare the enforcement of the particular parts that refer to the matters in suit. The words of the rule are "the Court shall order such agreement to be recorded and shall have a decree in accordance therewith so far as it relates to the suit. This rule has been canvassed in two cases to which our attention has been drawn upon this appeal. The first case is that of Hemanta Kumari Debi V/s. The Midnapore Zemindary Co. A.I.R. 1919 P.C. 79, and our attention has been drawn to the observations of the Privy Council to the effect that the meaning of the rule is in substance as I have stated. Now, the form of the decree adopted in this case was this : "The suit coming on for final disposal this day...it is ordered that the suit be dismissed in accordance with the terms of the Solenama filed on behalf of both the parties and the parties do abide by the terms of the Solenama." That is not such a decree as is contemplated by Order 23, Rule 3, C.P.C. If it was intended that upon the parties having come to terms the suit was to be dismissed, the latter words are plainly out of place. If it was intended that the parties having come to terms, both on matters which related to the suit and on matters which did not relate to the suit, and the Court was decreeing the enforcement of the terms which did relate to the suit, the form of the decree is one to which exception can be taken. It is possible that the decree by the last words used in it can be interpreted as a decree directing the enforcement of the whole of the terms of the Solenama. If that is the view, again that is a wrong thing to do according to Order 23, Rule 3, C.P.C. The form of the decree being irregular, it has given rise to a difference of opinion which we now have to determine upon this appeal. We have to consider whether the decree should be read as a decree enforcing those terms which I have already quoted from paragraph 3 of the Solenama. IN my opinion, it should not be so read, and those terms cannot be enforced in execution under this decree. To begin with "it is ordered that the suit be dismissed in accordance with the terms of the Solenama" is a form of decree which prima facie makes it very difficult to suppose that the intention was that all those many terms should be enforced. The position is that the plaintiffs, in substance, were applying for a Receiver and an injunction. They expressly gave up their right to a Receiver and they made a bargain which involved a different form of procedure altogether, namely, that they were to be appointed trustees or agents by the lady herself. When, therefore, it was said "it is ordered that the suit be dismissed in accordance with the terms of the Solenama" that was natural enough in view of the fact that the Solenama was not giving to the plaintiffs any of those forms of relief which the plaintiffs asked for. That may not be conclusive. It is observed by the learned Judge. "If none of the reliefs claimed" in the suit nor any relief following from or ancillary to the reliefs claimed "are granted, the suit should be considered as dismissed though the plaintiffs may be compensated in other ways." That general principle seems to me to be too wide. But in this case, the form of the order is that the suit be dismissed. It is very unlikely that an order Tinder which so many things have to be enforced should be framed in such a position. As a matter of fact, there are so many things to be done under the Solenama that execution, even so far as relates to the suit, of the terms of the Solenama would be a protracted business. There are a great many applications in execution possible under this Solenama even so far as it relates to the suit. It seems to me therefore, that the learned Subordinate Judge is not wrong when interpreting this decree is not paying a great deal of attention to that expression. It is true that the last words "the parties do abide by the terms of the Solenama" do raise a serious difficulty; but I do not "think that the learned Judge who passed that decree really intended or supposed that by his decree he was giving a right in his suit to the enforcement of all the terms. It is a very extraordinary decree to be made upon a Solenama of this sort. The learned Judge had before him in the Solenama questions of adoption, questions agitated in a different suit altogether and certain other things. It seems to me that those words "the parties do abide by the terms of the Solenama" must not be regarded as intended to effect the enforceability of all these terms in execution. A decision Soudamini Dasi V/s. Behari Lal Biswas A.I.R. 1921 Cal. 227 has been cited to us where the Court has elucidated the question in what circumstances a particular provision in a compromise will be regarded as a matter which relates to the suit. The learned vakil for the appellants has referred to that case on the ground that there is some little analogy between the case and the present case. IN that case, the plaintiffs wanted the sale of certain property to be stayed and certain other reliefs in respect of the property in suit. They got their reliefs under a compromise upon the terms that they would execute a mortgage bond in favour of the defendants within ten days in respect of the very property in suit. The Court held that in such a case as that it could compel the execution of the bond under the decree. Is that, in principle, a case which affects the present? IN my judgment, it is not, because the first difficulty in the present case is to find from the decree that it purports to enforce the Solenama at all. The difficulty is to suppose that the decree which directs the dismissal of the suit and makes no distinction between one part of this Solenama and another part was really intended to be a decree for the general enforcement of the Solenama; a decree whieh could be upheld only as to parts. I would interpret this decree in the same way as the learned Subordinate Judge has done. It was common sense, looking to the multifariousness of the Solenama and many different matters which it comprises, to recite the terms in the decree (which would get rid of the question of registration) and then to trust the parties to convey out their bargain and, if they quarrel, to settle their subsequent disputes by litigation directed for that purpose in a separate suit. IN the present case, the lady appears to be complaining that the Solenama was not assented to by her in such a way as to bind her. The ultimate deeision of that question cannot be determined in execution and, in this case, the effect of the decree of the Court below seems to me to have all the advantages of convenience and, in my opinion, that decree has been rightly interpreted. IN those circumstances, the appeal fails and should be dismissed with costs, hearing fee five gold mohurs. The cross- objections, not being insisted on are dismissed and without costs. B.B. Ghose, J.

(2.) I agree.