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First, Appeal No. 4 of 1943, decided on 17th November, 1947, from the decision of Sub‑Judge, 1st Class, Nawabshah, dated 31st.May, 1947.

,O. XXIII. R. 3‑Rule applies to all kinds of suits.

It is plain that O. XXIII, R. 3, Civil Procedure Code, 1908, applies to all suits including suits instituted under the provisions of O.XXXI, r. 1.

, O.XXIII, rr.1 and 3‑Under R.1. plaintiff can compromise with one or more defendants‑Rules 3 empowers the Court to pass a decree in terms of compromise.

Order XXIII, R. 1 in terms enable a plaintiff to compromise the suit with all or any of the defendants and rule 3 enables the Court, on being satisfied that the compromise has been arrived at by a lawful agreement, to pass a decree in its terms. There is nothing in the terms of the com promise, which prevented the appellants from proceeding with ‑the suit against the respondent and obtaining a usual mortgage decree against him. The co‑mortgagor must not be deemed to have been given up.

Atmaram Harchandrai, for Appellants.

Krishinchand Malkani, for Respondent.

---This is an appeal from the decision of the learned First Class Subordinate Judge, Nawabsbah, in Suit No. 12 of 1943, in which he dismissed the appellant's suit against the respondent Sobhraj with no order as to costs.

The suit was instituted by the appellant firm against two defendants, the respondent and one Parumal, a brother of the respondent, for the recovery of a sum of Rs. 6,642‑15‑0, due on a mortgage‑deed executed by the respondent and Parumal on 6th December 1940, for a sum of Rs. 9,330‑8‑0. Under the terms of the mortgage‑deed, the respondent and his brother Parumal had each to pay a sum of Rs. 1,000 with interest on 20th Nahri 1997‑20th December 1940, and a further sum of Rs. 500 with interest on the 7th of each succeeding Sindhi month : in default of any three instalments the entire amount then due was to become payable at once.

The appellants' case is that a sum of Rs. 3,550 was paid by the respondent and his brother Parumal, on certain dates, specified in para. 5 of the plaint, but that as they had committed default, in terms of the bond, the balance of Rs. 5,779‑8‑0, then due with interest and certain other charges incurred by the appellants became payable at once.

The main defence of Parumal was that the appellants had agreed to receive half the mortgage amount from hire and the remaining half from the respondent. It is not necessary to refer to the written statement of the respondent as the suit against him has been disposed of on a preliminary issue raised upon an application made on his behalf. We will refer to this application presently.

On 24th August 1942 the appellants and Parumal entered into a compromise, the terms of which were these

" 1. That defendant 2 do pay to the plaintiffs a sum of Rs. 3,160 and half costs of full settlement of his claim, half costs of the suit till today and not hereafter. The sum of Rs 3,000 to carry interest at 6 per cent. per annum from the date of suit till payment.

2. The above amount be paid in, the following instalments, viz., Rs. 600 (six hundred) every six months: first instalment to commence on 15th February 1943. In case of default of first instalment or any other two, whole amount payable at once.

3. That on payment of the above amount the following properties mortgaged and belonging to defendant 2 shall be deemed to be released

(a) old house shown in the mortgage‑deed measuring 1800 sq. ft. ; (b) two of three shops on the western side which have a storey over them.

4. The‑question of agriculturist is reserved for execution.

5. This will operate as final decree

6. That the plaintiff' shall recover the amount from the mortgaged property, and, in case of deficiency, from defendant 2 personally."

On 9th September 1942, the learned Subordinate judge ordered the compromise to be recorded and passed a decree in terms of the compromise against Parumal.

On 18th November 1942, the respondent filed an additional written statement in which he contended that in view" of the compromise entered into between the appellants and Parumal, the Court had no jurisdiction to proceed with the case against him, and that, in any case, the claim against him would be reduced to the extent of the amount decreed against Parumal.

On 19th May 1943 an application was made on behalf of the respondent, under the provisions of section 151, Civil Procedure Code, Order 23, rule 3, Civil Procedure Code and Order 34, rule 1, Civil Procedure' Code, inviting the trial Court to dismiss the suit against the respondent. The learned Subordinate Judge accepted the contention of the respondent and dismissed the appellant's claim against the respondent by his order, dated 31st May 1943. Against this order the appellant has filed the present appeal.

The learned Subordinate Judge took the view that in a suit' instituted under the provisions of Order 34, Civil Procedure Code, there can be only one final decree, and that ac; a final decree had been passed against Parumal in terms of the compromise, in the eye of tl a law, the respondent must be deemed to have been given up. The learned Judge then proceeded to say

It is true that by this compromise the claim of the plaintiff is reduced from Rs. 6,642‑15‑0 to Rs. 3,160 and certain mortgage security is not included in the final decree for sale, but apparently, the remaining property belongs to defendant 1 exclusively and so it is not the subject‑matter of Ex. 45. If, however, the plaintiff feels that he has entered into the above compromise in full settlement of his claim through some bona fide mistake on his part, I hope he will not be without any remedy at law. With the present state of the record, I think the claim of the plaintiff against defendant 1 ought to be rejected. The suit against defendant l is accordingly dismissed but looking to the circumstances of this case no order is made is to costs.

We think there is no warrant for the learned Judge's view that if in a suit instituted under the provisions of Order 34, Civil Procedure Code, the mortgagee plaintiff enters into a compromise with one of the mortgagee defendants and a decree is passed against him in terms of the compromise, tae result is that the co‑mortgagor must be deemed to have given up. It is plain that Order 23, rule 3, Civil Procedure Code, applies to all suits including suits instituted under the provisions of Order 34, rule 1. Order 23, rule 1 in terms enables a plaintiff to compromise the suit with all or any of the defendants, and rule 3 enables the Court on being satisfied that the compromise has been arrived at by a lawful agreement to pass a decree in its terms.

We think there is nothing in the terms of the compromise, which prevented the appellants from proceeding with the suit against the respondent and obtaining a usual mortgage decree against him, if the facts of the case warranted the passing of a usual mortgage decree. It is common ground that the two properties mentioned in the compromise, which were to be returned to Parumal in the event of his satisfying the compromise decree, passed against him, belonged exclusively to Parumal and the remaining property to the respondent. The fact that the appellants elected to release that two properties to Parumal in the event of his satisfying the compromise decree in no war debarred the Court from passing a usual mortgage decree against the respondent. If and when the question arises as to the execution of final decree against respondent, it may be that the appellants, by virtue of their compromise with Parumal, would be unable to claim the sale of the two properties belonging to Parumal, if Parumal has carried out the terms of the compromise, but that is matter for the Court executing the final decree.

We are informed that no final decree has been drawn up against Parumal in. terms of the compromise. Be that as it may, the compromise decree passed against Parumal is no impediment to the passing of a usual mortgage decree against the respondent if the appellants succeed in, their claim against him Questions relating to execution, discharge or satisfaction, arising out of the compromise decree, passed against Parumal, and a mortgage decree that may be passed against the respondent will be determined with reference to section 47, Civil Procedure Code, and we can see no difficulty in the wax, of the Court giving effect to the compromise decree passed against Parumal and a mortgage decree against the respondent if one should be passed against him.

We would accordingly set aside the judgment and decree of the trial Court and remand the case to the trial Court with a direction to readmit the suit under its original number in the register of civil suits and proceed to determine the suit against the respondent. The costs of this appeal will be costs in the case.

M. A Case remanded.

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