P (PLP)

CORNELIUS, J.‑

This case has a chequered history. It com menced with a suit by the present respondent Mohammad against 141st. Karam Bhari and the present appellant lust. Fatima Bibi for a declaration that a gift, by Mst. Karam Bhari of her share in the estate of her deceased husband in favour of her daughter Mst. Fatima Bibi would not affect the plaintiff's reversionary right. A declaration was granted by the first Court on the 27th June 1941 and an appeal was instituted in this Court by Mst. Fatima Bibi (R. F. A. No. 234 of 1941) on the 14th July 1941. During the pendency of the appeal, Mst. Karam Bhari died on the 6th June 1943. When the appeal first came up for hearing before a Division Bench on the 5th May 1944, an order was made adjourning it to the 19th May, as there was a possibility of a compromise". On the 19th May the parties and their counsel appeared and made statements and the Division Bench made an order declaring that the parties had compromised the case and the plaintiff Mohammad had agreed to give the defend ant Mst. Fatima Bibi a quarter share in the land in suit to hold till death or marriage, without power of alienation. A decree was made accordingly. It should be noted that Mst. Fatima Bibi was present before the Division Bench and had the benefit of counsel; she is recorded as having agreed to the compromise. From that time onwards, Mst. Fatima Bibi has made one effort after another to have the decree reversed. On the 19th June 1944 she applied to this Court to have the order regarding the compromise set aside on a number of grounds, viz. that no court‑fee had been paid for the possessory relief, that as the suit was brought for a mere declaration, a decree for possession could not legally be passed, that being a woman she had not understood the terms of the compromise, that the parties were not before the. Court, and finally that she should have been allowed compensation for expenses incurred on Mst. Karam Bhari's funeral. The application came up before the same bench on the 10th July 1944 and was dismissed in limine. On the 19th Septem ber 1945 Mst. Fatima Bibi filed a petition for amendment of the decree and obtained an interim order staying Mohammad's execution proceedings. That application was dismissed on the 12th November 1945 by a Single Judge. When the execution proceedings were continued, Mst. Fatima Bibi once again took up the plea that the decree for possession in a suit brought for a mere declaration was contrary to law and Mohammad could not take possession under that decree through execution proceed ings. The objection having been dismissed by the executing Court, Mst. Fatima Bibi has again come up in appeal. The solo question arising in the appeal is whether the decree for possession of the suit land can be executed. This is challenged by the learned counsel for the appellant on the ground that the relief by way of possession was a matter extraneous to the suit in which the decree was awarded. Reference has been made by learned counsel to a decision of the Privy Council published as Hemanta Kumeri Debi v. Midnapur Zamindari Company Limited (46 Indian Appeal 240) but that was a case involving the application of Section 375 of the Code of Civil Procedure of 1882, which was in its terms materially different from Order 23 rule 3 of the Code of 1908 which applies to the facts of the present case. Section 375 of the Code of 1882 ran as follows:‑ "If a suit be adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the suit, such agreement, compromise or satis faction shall be recorded and the Court shall pass a decree in accordance therewith so far as tit relates to the suit, and such decree shall be final, so far as relates to so much of the subject‑matter of the suit as is dealt with by the agreement, compromise or satisfaction." The wording of Order 23 rule 3 of the present Civil Procedure Code is slightly different in the initial part, and it omits altogether the words appearing at the end, which have the effect of limiting the finality of the decree to that portion of the subject‑matter of the suit as is dealt with by the agreement, compromise or satisfaction. In examining the effect of the provision in the Code of 1882 their Lordships of the Privy Council remarked that its terms could be effectively carried out if the decree recited the whole of the agreement but concluded with an order confined exclusively to the subject‑matter of the suit, and declared that thus the operative part of the decree would be confined to the actual subject‑matter of the litigation, although the decree itself would embody the agree ment. They then went on to observe that it might follow that such a decree "was incapable of being executed outside the lands of the suit", but remarked that this would not prevent the decree from being received as evidence of its contents. The question arose in that case in relation to section 17 of the Registration Act. The view expressed by the judicial Committee has been followed in a large number of cases of which two were cited before me, namely Kartar Singh v. Indar Singh (31 P. R. 1919) and Ghulam Mustafa v. Ghulam Nabi (4 Lah. 263). In each of these cases the suit was for possession of specific properties and the compromise decree extended to other properties as well, and it was held that execution in relation to these other properties could not be taken out on the basis of the compromise decree. It seems to me that the exclusion from the present law of the provision that the final effect of the decree shall be confined to that portion of the compromise as relates to the subject‑matter of the suit, justifies the view that, particularly in a case like the present, where lands outside the suit are not sought to be touched but only an additional right in respect of the same lands has been awarded, such right having accrued during the pendency of the litigation on account of the death of the holder Mst. Karam Bhari, the question may now be dealt with on a wider basis. The operative words in Order 23 rule 3 are "pass a decree in accordance therewith so far as it relates to the suit", and it seems to me that the decree is equally effective in every part thereof, which can be held to relate to the suit, i.e., to be directly connected with the subject‑matter of the litigation. In a suit for a declaration concerning certain land, it seems to me that the right of possession accruing in relation to those lands during the pendency of the litigation, by reason of an incident over which the parties had no control, cannot be held to be otherwise than related to the subject‑matter, namely the land, and therefore I am of the opinion that the decree for possession granted on the 19th May 1944 is valid and executable as a decree in respect of every part thereof. Jachim v. Cheninessa (24 C W. N. 328) is a case where the suit was one for contribution sought by the plaintiff from the defendant who was in joint occupation with him of certain land, the plaintiff having paid the entire rent; in the course of the suit a compromise was arrived at whereby in consider ation of the plaintiff giving up his claim the defendant gave up his share of the land to the plaintiff. It was held that the term relating to the giving up by the defendant of his land, to the plaintiff was one which related to the subject- matter of the suit. Bharat Ramanuia Das v. Sarat Kamini Dasi (66 I. C. 273) is a case where in a suit for a declaration of title in relation to certain property which had been attached by a third party, it was agreed that the right of the plaintiff in respect of the property should be acknow ledged by the defendant but the plaintiff should at the same time execute a mortgage in favour of the defendant for the decretal amount in respect of which he had taken out attachment; it was held that the compromise and the mortgage constituted one entire and indivisible transaction, and the decree based on the compromise validated the whole contract, inclusive of the mortgage. The question in that case related to the application of the rule of lie pendens; prior to the making of the compromise decree, but during the pendency of the suit, a mortgage had been created in respect of the suit property, and it was contended that this mortgage had priority as against the mortgage created in accordance with the decree. It was held with reference to Order 23 rule 3, Civil Procedure Code, that the legal effect of a compromise decree was the same as that of any other decree,. and, with regard to the contention that lie pendens could apply only in so far as the decree in the suit was one which the party affected might expect would be made, the learned Judges held that it was satisfied, as the compromise decree was in substance of the same type as conditional decrees granted in suits by reversioners where an alienation by a Limited owner is set aside on equitable terms. Thus the term of the compromise decree which required that a mortgage should be created on the property, in respect of which only a declaration had been sought by the plaintiff, was held to have equal validity with the rest of the decree. The connection between the possessory right which is here characterised as extraneous and the subject‑matter of the present suit is almost direct and the decree for possession became necessary, on account of a natural event, viz. the death of Mst. Karam Bhari, and accordingly there need be no difficulty in holding that this right is one directly relating to that subject‑matter. The fact that no court‑fee has been paid in respect of the possesory relief has no bearing on the validity of the decree. Conse quently the decree is executable in relation to the possessory relief granted thereby, and the appeal is without force. It is hereby dismissed. No order as to costs as the opposite party is not represented. A. H. Appeal dismissed.