S SIVARAMA IYER Vs. MGSUNDARARAJULU NAIDU

JUDGEMENT

(1.) The appellant brought this suit for specific performance of an agreement to sell entered into by defendants 1 and 2. Defendant 3 had previously brought a partition suit against defendants 1 and 2 and had impleaded defendant 6 on the ground that he claimed a right under this agreement to sell. In that suit defendant 6 was ex parte and it was finally compromised between the then plaintiff and the other defendants and a decree was passed in terms of the compromise. Under this decree the suit property was allotted to the plaintiff. To this decree defendant 6 is a party and although he was not a party to the compromise by his abstention from appearance, he must be deemed to have consented to any decree that the Court might think fit to pass in accordance with the prayers in the plaint. If he thought that he was injured by this compromise behind his back, it was open to him to have applied to have the ex-parte decree against him set aside, or possibly appealed against that decree which, although, it was a consent decree so far as the other parties were concerned, was not a consent decree so far as he was concerned. Not having set aside that decree, he cannot now claim any right to enforce the agreement entered into by defendants 1 and 2 against defendant 3 who has been held to be the owner of the property.

(2.) We have been referred to three cases: Abdul Hakim Gazi V/s. Panchi Dasi [1916] 32 I.C. 849, Gobind Chandra Sardar V/s. Bhagabat Sardar [1915] 27 I.C. 242 and Shankar Bharati Swami Guru V/s. Narasimha Bharati Guru . The first two cases are very dissimilar to the present and the decisions therein are not applicable to the present facts. The third decision is that of the Privy Council in which it was held that a party to a consent decree who had not himself consented could not appeal in the circumstances of that case. The circumstances were very peculiar in that case in that the appellant had renounced all interest whatever in that suit. That is not the ease here and, therefore, that decision is not an authority to guide us now.

(3.) The appeal is accordingly dismissed.