1. This is an appeal by the plaintiffs in a suit for partition of joint property, which was commenced so far back as 29th October 1897. The suit was dismissed by the Court of first instance on 13th March 1899. Upon appeal, the case was remanded by the Subordinate Judge on 11th July 1899. The case was re-tried after remand and a preliminary decree was made on 16th August 1900. The result of the preliminary decree was that the suit was dismissed in so far as the property comprised in schedule ka was concerned, but it was decreed in so far as the pond and tank mentioned in schedules kha and ga ware concerned. The plaintiffs were not satisfied with this preliminary decree and preferred an appeal. They joined as respondents to their appeal all the eleven defendants who were parties to the suit. A compromise was arrived at as between the plaintiffs on the one hand and some of the defendants on the other hand, namely, defendants 1, 3, 4, 7 and 11. The other defendants, namely Nos. 2, 5, 6 and 8 to 10 were not represented at the hearing of the appeal before the Subordinate Judge. The fact was apparently not brought to his notice that all the defendants had not consented to the compromise. The result was that the Subordinate Judge accepted the compromise as if it was binding open all the defendants and proceeded to modify on the basis thereof the preliminary decree made by the Court of first instance. The case then went back to the original Court, and an attempt was made to effect a partition by metes and bounds. The defendants, who were not parties to the petition of compromise and the consent decree, protested against the adoption of this course.
2. Their contention was that they were in no way hound by the consent decree which had been made by the lower Appellate Court. This objection was overruled and partition was effected. These defendants then appealed to the Subordinate Judge and on 13th July 1910 he held that the consent decree could not be made the found action for the final decree in the suit, inasmuch as it was not binding upon all the parties to the litigation. He, therefore, set aside the final decree ma is by the Court of first instal and remanded the case for trial de novo. The Subordinate Judge, however, proceeded to add that nothing in his judgment should be construed to mean that the compromise decree of the Appellate Court was not binding on the parties to the compromise so far as the same related to the suit.
3. The plaintiffs have now appealed against this decree, and on their behalf it has been contended that the defendants were not at liberty to challenge the consent decree because first, their remedy was by way of an appeal to this Court; and, secondly, because they had failed in a regular suit instituted for a declaration that the consent decree was not operative in so far as they ware concerned. In our opinion, there is no force in either of these contentions. In so far as the first ground is concerned it is plain that the defendants who were not parties to the petition of compromiss are not bound by its terms and the decree based on that compromise cannot have greater validity than the contract upon which it was based [Huddersfield Banking Company v. Lister . 1895 2 Ch 273, Rajlakshmi Dassee v. Katayayani Dasee . 1911 38 Cal 639, Keshab Panda v. Bhobani Panda . 1913 21 IC 538. Wentworth v. Bullen . 9 B & C 840]. No doubt, it might have been open to the defendants to prefer an appeal against the consent decree, because it has been held that although ordinarily as appeal does not lie against a decree made by consent, an appeal may be preferred by persons who are not parties to the consent decree [Nityamoni Dasi v. Gokul Chandra Sen . 1911 9 IC 210.]. In so far as the appeal preferred by the plaintiffs against the decree of the Court of first instance was concerned, the appeal had never been heard on the merits as against these defendants and no decree had been made which could be legally binding upon them. The first ground, on which the appeal is sought to be supported, fails.
4. In so far as the second ground is concerned, it appears that the suit instituted by these defendants for a declaration that the consent decree was act operative against; them was dismissed for default and has never tried on the merits. If, then, the consent decree was not operative against them, as we have held it was not, it was clearly unnecessary for them to institute a suit for declaration that the decree was not operative, and the fact than the suit was lever tried on the merits but dismissed or default could not give greater ??? to the consent decree than it really ???. We are clearly of opinion that in so far as the merits of the are concerned, the consent decree made by the Subordinate Judge on 29th March 1901 cannot be made the foundation for he final decree in the partition suit. The question remains what course should be adopted at this stage. As the consent decree is not binding upon some of the defendants, obviously it cannot bind any if the parties to the suit, because the property which has to be partitioned is point property and a partition thereof cannot be effected on a compromise which binds only some of the co-owners. The proper course to follow is to ignore completely the compromise and the decree based thereon. The parties must consequently be relegated to the position which they occupied before the consent decree was made on 27th March 1901. The result is that this appeal is allowed, the order of the Subordinate Judge set aside and the case remanded to him in order that he may now, on the materials on the record, hear the appeal which was preferred by the plaintiffs against the decree of the Court of first instance dated 16th August 1900.
5. If that appeal fails on the merits, the result will be that the preliminary decree made by the Court of first instance will stand confirmed and partition will be effected by metes and bounds on the basis of such decree. On the other hand, if the appeal by the plaintiffs against the preliminary decree of the Court of first instance is allowed in whole, or in part, a new preliminary decree will be made by the Subordinate Judge, and partition must be effected on the basis of such preliminary decree. The effect of this judgment is to set aside the consent decree of 29th Match 1901 as also all orders in the suit made thereafter, whether by the Court of first instance or by the lower Appellate Court; the appeal preferred by the plaintiffs against the preliminary decree of 16th August 1908 will stand restored, to be heard on the merits. The appellants must pay the respondents, who have entered appearance, their costs throughout these proceedings. We assess the hearing fee in this Court at two gold mohurs.
V.B/R.K
6. Decree set asids.