MADHUSUDAN CHAKRAVARTI Vs. SATISH CHANDRA NAG

JUDGEMENT

(1.) This is an appeal preferred by the defendants Nos. 27 to 31 from the decree of the learned Additional District Judge of Dacca, dated the 28 November 1922 by which he allowed the appeal of the defendant No. 1 in the suit and which appeal had been preferred agains the decree passed by the learned Subordinate Judge on the 23 August 1921.

(2.) The facts out of which this appeal arises are these. The suit was originally instituted by plaintiffs Nos. 1 and 2 against two sets of defendants: one set being the tenants and the other the pro forma defendants who were the co-sharers of the plaintiffs. By an order passed on the 2 June, 1921 some co-sharer defendants, namely, the defendants Nos. 27 to 31 who are the appellants in this appeal were transferred to the category of the plaintiffs. On the 9 August 1921 a petition of compromise was put in, in the suit on behalf of the plaintiffs and some of the defendants namely, defendants Nos. 1, 33, 34 and 35. On the 23 August 1921 another petition of compromise was put in as between the plaintiffs and the defendants Nos. 2 to 5, 7 to 9 and, 12 to 15. The learned Subordinate Judge on the 23 August 1921 examined one witness on behalf of the plaintiffs and then passed an order which ran in these words: "Suit be decreed on compromise against the defendants who are parties thereto and in the same terms ex parte against the remaining defendants. Dismissed against the minor heirs of the defendant No. 18 who are not represented properly in the suit." A decree was passed in accordance with this order of the learned Subordinate Judge and that decree purported to be a decree parsed on compromise as between the plaintiffs Nos. 1 and 2 and the proforma defendants Nos., 27 to 31 who as 1 have already stated had been transferred to the category of the plaintiffs and defendants Nos. 1, 2 to 5, 7 to 9 and 12 to 15, and 33 to 33.

(3.) The defendant No. 1 preferred an appeal against this compromise decree and on his appeal the learned Additional District Judge set aside the decree passed by the learned Subordinate Judge and made certain variation to the decree passed by the latter. As against this decree of the learned Additional District Judge the present appeal has been preferred by the defendants Nos. 27 to 31.