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Appeal from Appellate Decree No. 1007 of 1960, decided on 5^th August 1965.

O. XXIII, r. 3‑Com promise of suit‑Decree may contain matters extraneous to suit or relating to properties other than subject‑matter of suit‑Order passed by Court, however, can operate as decree only in so far as it relates to subject‑matter of suit.

Vishnu v. Ran Chandra A I R 1932 Bom. 466; Jasimuddin Biswas v. Bhuban Jelini I L R 34 Cal. 456; Jagadish Chandra Sinha v. Kameshwar Singh A I R 1953 Pat. 178; Purna v. Nil Madhab 5 C W N 485; Hemanta v. Midnapore Zemindari Co. Ltd. 24CWN177PCref.

Abdul Hye Chowdhury for Appellant.

S. S. Hoda for Respondents.

Plaintiff‑respondent instituted a suit for setting aside a compromise decree passed in Title Suit No. 92 of 1954 on the ground that it was fraudulent.

Plaintiff's case is that the aforesaid suit was instituted by him against defendant No. 4 in the present suit and certain other persons for ejectment. There was a talk of compromise in respect of the said suit. In fact, there was an agreement between the parties. It is admitted that he had signed the compromise petition. His case is that he had only consented to settle the suit in respect of 5 gandas of land appertaining to the aforesaid suit. He has further alleged that because of the circumstances created by interested persons he signed the compromise petition without reading its contents. According to him, the compromise petition did not incorporate the agreement which was reached between the parties in that suit.

The defence is a traverse to the averments made by plaintiff. It has been contended on behalf of the contesting defendant that the aforesaid compromise decree was a genuine one and that plaintiff had agreed to the settlement embodied in the said com promise decree.

Before the learned Munsif who tried the present suit a number of witnesses were examined on behalf of the parties and certain documents were produced before him. On a full discussion of the evidence adduced by parties the learned Munsif came to a finding that plaintiff had not succeeded in proving that the aforesaid solenama‑decree was a fraudulent transaction. He has further held that, from the evidence and circumstances of the case, it has to be concluded that the aforesaid com promise decree was a genuine one. He, therefore, dismissed the suit.

Against the aforesaid judgment and decree passed by the learned Munsif plaintiff preferred an appeal which was heard and disposed of by a Subordinate Judge of Barisal. The learned Subordinate Judge came to the conclusion that the aforesaid compromise decree was liable to be set aside inasmuch as it purported to include matters beyond the subject‑matter of the suit which was disposed of in accordance with the aforesaid compromise decree. He further held that defendant had failed to prove that the compromise decree was genuine. The appeal was, therefore, allowed and the judgment and decree passed by the learned Munsif were set aside. The suit was decreed in favour of the plaintiff. Hence this appeal.

At the hearing of this appeal I was taken through the judg ments pronounced by the Courts below. It was argued before me that the Appellate Court below did not properly dispose of the appeal. I am of opinion that this contention of the appellant must be upheld.

It would be seen, in the first place, that the learned Subordinate. Judge misdirected himself when he held that a compromise decree which contained matters extraneous to the suit could not be passed under the provisions of Order XXIII, rule 3, of the Code of Civil Procedure. The correct position is that under Order XXIII, rule 3, a compromise decree may contain matters extraneous to the suit or relating to properties other than the subject‑matter of the suit. A decree passed in accordance with a compromise petition which contains matters not related to the suit properties is not invalid; terms which go beyond the subject‑matter matter of the suit may be incorporated in the decree which is passed in the suit. The decree can only be enforced by way of execution in so far as it appertains to the subject‑matter of the suit. A compromise decree can, however, be enforced in a manner other than by way of execution. Order XXIII, rule 3, of the Code of Civil Procedure runs thus:

"Where it is proved to the satisfaction of the Court that a suit ‑has been adjusted wholly or in part by any lawful agree ment or compromise, or where the defendant satisfies the plain tiff in respect of the whole or any part of the subject‑matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit."

It is patent that all that the Court is required to do is to satisfy itself that the suit has been adjusted either wholly or in part by a lawful agreement or compromise. Where the defendant satisfied the plaintiff in respect of the whole or part of the subject‑matter in suit, it is incumbent upon the Court to pass an order to the effect that an agreement which has been set out by the parties has resulted in such satisfaction. The Court. is required to pass a decree which should be confined to the subject‑matter of the suit. The order passed by the Court can operate as a decree only in so far as it relates to the subject‑matter of the suit. There is, however, nothing to prevent parties from entering into any lawful agreement with regard to matters extraneous to the suit. Such an agreement can also be incorporated in a petition of compromise filed in the suit. An agreement extraneous to the suit can be enforced, if legal, in a manner other than by way of execution for the simple reason that the agreement in so far as it is extraneous to the suit, cannot operate as a decree. There is no warrant for holding that if a compromise petition relates to matters over and above those covered by the suit, the Court cannot pass a compromise decree. See Vishnu v. Ram Chandra (A I R 1932 Born. 466), Jasimuddin. Biswas v. Bhuban Jelini (I L R 34 Cal. 456), Jagadish Chandra Sinha v. Kameshwar Singh (A I R 1953 Pat. 178), Purna v. Nil Madhab (5 C W N 485) and Hemanta v. Midnapore Zemindari Co. Ltd. (24 C W N 177, (P C)).

The learned Subordinate Judge has not properly examined the evidence in ' this case nor has he come to a finding whether the aforesaid compromise decree contains matters which are extraneous to the suit in which the compromise decree was passed. He has recorded a finding without such examination. Moreover, he has misdirected himself as to the law on this subject. His findings must, therefore, be set-aside.

It would next be seen that the learned Subordinate Judge misdirected himself when he assumed that it was the duty of the defendant to establish that the aforesaid compromise decree was a genuine one. It will be seen that he has not adverted to the evidence discussed by the learned Mansif and the reasons given by him in arriving at a finding that plaintiff has failed to prove that the compromise decree was fraudulent. This part of the finding of the learned Subordinate Judge must also be set aside.

The result, therefore, is, that this appeal is allowed and the judgment and decree passed by the learned Subordinate Judge are set aside. It is directed that this case be sent back on remand to the Appellate Court below for a re‑hearing of the appeal and its disposal in accordance with law and in the light of the observa tions made in this judgment. Costs will abide the result of the appeal.

Let the records of this case be sent back to the Appellate Court below with the utmost expedition.

K. B. A. Appeal allowed. Case remanded.

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