ABDUL KARIM Vs. MEHERUNESSA DAUGHTER OF BAKTER BHUYA

JUDGEMENT

(1.) The appeal and the Rule before us relate to the same matter. In my opinion no appeal lies in the present case and the matter must be dealt with under the Rule.

(2.) The whole question is covered by the simple proposition that no one can be bound by a compromise to which he was not a party. The compromise in the present case related to an execution sale which had taken place in the course of executing a decree for rent obtained by the landlord of a raiyaii holding against his tenant. The holding was sold and was purchased by the auction-purchaser for Rs. 400. The landlord satisfied himself out of the money and the balance Rs. 353 and odd was taken by one of the judgment-debtors as the representative of the rest. Then the mortgagee, to whom the holding had previously been mortgaged and who had obtained a decree on the mortgage and had in execution of that decree purchased the holding, though he had never received recognition from the landlord, came in and applied to have the sale set aside under the provisions of Rule 90 of Order XXI. It was in connection with that application that the compromise in question was arrived at. The mortgagee came to an agreement with the auction-purchaser by which the sale was to be set aside on condition that the mortgagee paid to the auction purchaser the sum of Rs. 500 and the mortgagee was to be at liberty to recover the balance of the sale proceeds previously taken out by the representative of the judgment-debtors. Now, as between the mortgagee and the auction- purchaser that may be, and no doubt was, an entirely valid and binding agreement, but in the nature of things the compromise can have no binding effect upon the judgment-debtors who were no party to it. No doubt the order made upon the compromise was in the following form: "The application for setting aside the sale is granted in terms of the solenamah and the sale is set aside. The judgment-debtors will deposit the surplus sale-proceeds taken by them at once for payment to the petitioners." Some attempt has been made to argue as to the latter part of this order that it is in some way independent of the compromise. But obviously the order arose out of the compromise and depends upon the setting aside of the sale. What the mortgagee is attempting to do now is to execute that order against the judgment-debtors, that is to say, to execute as against the judgment-debtors an order founded upon and dependent upon a compromise to which they were not parties. The application was dismissed by the Munsif in the first Court, but on appeal the learned District Judge for reasons which I am unable to appreciate has made an order in favour of the mortgagee. In my opinion, whatever rights the mortgagee may have to the surplus sale-proceeds taken out of Court by the judgment-debtors or their representative, as to which we say nothing, he had no right to treat this order made on the compromise as an order binding on the judgment-debtors and capable of execution as against them. There was no jurisdiction to make the order in the first instance and there is now no jurisdiction to enforce it. In my opinion, therefore, the order of the learned District Judge on appeal must be set aside and that of the Mnnsif rejecting the application of the mortgagee must be restored. The petitioner will be entitled to his costs (of this Rule) and in the Court below. We assess the hearing fee in this Court at two gold mohurs.

(3.) The appeal is, therefore, dismissed and the Rule made absolute as above. Beachcroft, J.