1. This appeal arises out of proceedings for the execution of the compromise decree in Suit No. 196 of 1938 passed by the Extra Joint Second Class Subordinate Judge of Nadiad. The plaintiffs who filed that suit are the owners of survey Nos. 141|1 and 135|2 + 1|1 of Mahudha and the defendants are the owners of survey Nos. 141|2, 135|2 and 1351|2, while survey No. 135|1|3 belongs jointly to them. The plaintiffs claim a right of way through the defendants' survey No. 135|1|2 to go to their survey No. 135|2 + 1|1 while the defendants claim a right of way through the plaintiffs' survey Nos. 135|2 + 1|1 and 141|1 to go to their survey No. 135|1|2. Both denied each other's rights. The plaintiffs therefore filed Suit No. 196 of 1938 for a declaration of their right of way and an injunction restraining the defendants from obstructing them in its use and also restraining them from going through their lands survey Nos. 135|2+1|1 and 141|1. The suit ended in a compromise decree, providing that the defendants should sell to the plaintiffs their survey No. 135|1|2 and their interests in survey No. 135|1|3 for Rs. 900 to be paid before April 27, 1941, and that on receipt of the amount the defendants should pass a registered sale-deed in favour of the plaintiffs and deliver possession. The compromise application was signed by the plaintiffs and the defendants' pleader Mr. Barot, but not by the defendants themselves. It is stated that Mr. Barot had been specially authorised to compromise the suit. That authority appears to have been given to him in general terms in the vakalatnama itself when he was engaged by the defendants to appear on their behalf. When the defendants came to know about the compromise, they protested and made an application under Section 151 of the Civil Procedure Code to have the decree set aside on the ground of fraud and also on the ground that Mr. Barot had not been authorised by them to enter into a compromise. That application was rejected and the defendants were referred to a civil suit. The plaintiffs then deposited Rs. 900 in Court and filed this darkhast to obtain a sale-deed from the defendants and recover possession of their lands in execution of the compromise decree. The defendants contended that the decree was illegal and inexecutable as their pleader Mr. Barot had not been authorised by them to enter into a compromise and that the compromise dealt with what was outside the scope of the subject-matter of the suit. The executing Court held that it could not go behind the decree and consider whether it was legal or not, and, therefore, directed the defendants to execute a sale-deed in accordance with the terms of the decree within fifteen days. In appeal the learned District Judge held that the matter was res judicata by reason of the dismissal of the defendants' application under Section 151 of the Civil Procedure Code, 1908, to have the decree set aside and that in any case the executing Court could not go behind the decree. The appeal was, therefore, dismissed. In this Court it is fairly conceded by Mr. Shah that there can be no bar of res judicata to the defendants' contentions, since their application under Section 151 was dismissed on the ground that the proper remedy for them was to file a suit to have the decree set aside.
2. The decree under execution is attacked by the defendants on two grounds, that their pleader Mr. Barot had no authority to enter into such a compromise and that the compromise dealt with matters outside the scope of the suit. There is, no doubt, some force in these contentions.
3. Although Mr. Barot may have been authorised by his vakalatnama to compromise the suit, his authority did not extend to matters which were not the subject-matter in the suit. As observed by Lord Atkin in Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza : (1935)37BOMLR845 counsel in India have the same implied authority to compromise an action as have counsel in England :
Although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it-such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such, as in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of trial-he has not, by virtue of his retainer in the suit, any power over matters that are collateral to it. For instance, in a suit on mortgage, counsel has no authority to agree that the mortgaged property be sold by one party to the other and bind the parties to the suit without their consent. In a case like this the Court should not make a decree in pursuance of Order XXIII, Rule 3, of the Civil Procedure Cade, 1908.
4. Applying this test, it is evident that Mr. Barot could not enter into a compromise involving the sale of the defendants' interest in survey No. 135 1 3 which was not in suit at all. That land belonged jointly to the plaintiffs and the defendants and neither party could claim a right of way through it. Yet under the compromise the defendants had to transfer their joint interest in that land to the plaintiffs. This was entirely outside the scope of the suit and, therefore, the general authority to compromise which was given to Mr. Barot by the vakalatnama could not include any power to deal with the defendants' property which was not in suit. On this ground a decree should not have been passed in terms of the compromise under Order XXIII, Rule 3, of the Civil Procedure Code, unless the defendants themselves were parties to it. But as I shall presently point out, the executing Court cannot go behind the decree and refuse to execute it on this ground.
5. As regards the other ground also, it is obvious that some of the terms of the compromise were outside the scope of the suit. Mr. Patel has relied upon the ruling of the Privy Council in Hemanta Kumari Debt v. Midnapur Zamindari Company in support of his contention that a decree passed on such a compromise is without jurisdiction. In that case there had been a compromise between the plaintiff and the defendant, and amongst other terms of the compromise was one that if the plaintiff succeeded in obtaining a decree against Government in respect of certain lands which were not the subject matter of the suit, she would grant a lease of them to the defendant on the same conditions as those agreed to with regard to the land in his possession. Subsequently, although the plaintiff succeeded in the suit against Government, she refused to grant a lease to the defendant. The defendant thereupon filed a suit for specific performance of the agreement, The principal question which was raised in the trial Court was whether the consent decree was inadmissible in evidence for want of registration. That point was decided against the appellant by the Subordinate Judge and by the High Court and the appeal to the Privy Council was principally concerned with that question. In the course of the judgment, the Privy Council referred to Section 375 of the Civil Procedure Code of 1882 (corresponding to Order XXIII, Rule 3, of the present Code) and stated that under the terms of that section it was plain that the agreement or compromise, in whole or in part, was to be recorded, and the decree was then to confine its operation to so much of the subject matter of the suit as was dealt with by the agreement and laid down a rule as to the manner in which the terms of the section were to be carried out in the case of compromise decrees, remarking that, although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation, the decree taken as a whole would include the agreement. It was further observed (p. 246):-
This in fact is What the decree did in the present case. It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents.
6. The question whether the decree in the former suit went outside the subject matter of the suit was not directly before their Lordships. Nor did they decide that question. Their remarks were, therefore, merely with relation to the question as to whether the compromise was admissible in evidence or whether, being part of the decree, it did not require registration. The question whether the terms of a compromise decree go beyond the subject matter of the suit is one which has to be determined on the facts of each particular case with reference to what the claim in the suit was and what was the nature of the compromise, Their Lordships intended to point out that it was not proper for a Court to allow the operative part of a decree to go beyond the actual subject matter of the existing litigation, and I do not think that their remark that a decree which infringed that rule might be incapable of being executed outside the lands in suit was intended to throw any doubt on the well established view that parties in execution proceedings cannot call in question the validity of the decree. Under Order XXIII, Rule 3, of the Civil Procedure Code, 1908, the Court is bound to record a compromise in accordance with the terms 'so far as it relates to the suit'. But where the compromise is plainly outside the suit, it is open to the Court to refuse to incorporate it in the decree. But as observed by Madgavkar J. in Bajirao v. Sakharam (1930) 33 Bom. L.R. 463 where, however, it is a consideration of the compromise and therefore intimately connected with it, the words ' relates to the suit' are wide enough to embrace such a term of the compromise, as for instance, the consideration for the compromise even though this consideration may be entirely outside the scope of the suit and relate to property which was never in question in the suit itself. That case was cited with approval and followed by a division bench in Shambhusing v. Manilal : AIR1932Bom47 .
7. In the present case the dispute was as regards the right of way and it was settled by merging the right into a full title to the property in dispute. For that purpose it was necessary to transfer the defendants' property to the plaintiffs. It is true that the joint land was not the subject-matter of the suit, nor was any right of way claimed through it. But its transfer was treated as part of the consideration and the defendants were to be paid Rs. 900 for their own land as well as for their undivided interest in the joint land. It was for the Court which tried the suit to decide whether such a compromise could be recorded under Order XXIII, Rule 3, of the Civil Procedure Code, in the light of the rulings cited above. That Court apparently held that it could pass a decree in terms of that compromise. The expression ' so far as relates to the suit', in Order XXIII, Rule 3, is certainly wider than the expression, ' so far as relates to so much of the subject matter of the suit as is dealt with by the compromise', which occurred in Section 375 of the former Code, and the matters which may not, strictly speaking, be the subject matter of the suit itself as brought may yet 'relate to the suit'. Whether the compromise relates to the suit or not is a question which the Court which tries the suit has jurisdiction to decide. Even in cases where a part of the compromise does not, strictly speaking, relate to the suit and nevertheless the Court decides that it does relate to the suit and incorporates it into the operative portion and passes a decree in terms of it, the decree is not a nullity and not one passed without jurisdiction, but would be binding upon the parties to the decree, and its validity cannot be questioned in execution proceedings of that decree, nor can any title derived under it be attacked. As observed in Sahu Shyam Lal v. Shyam Lal I.L.R. (1933) All. 775 it is the duty of the Court under Order XXIII, Rule 3, to see that although the whole of the compromise between the parties is recorded, the operative portion of the decree is confined to that part only which relates to the suit. But it does not necessarily follow that if the Court does not strictly follow this direction, it is acting without jurisdiction. There is a great difference between want of jurisdiction and erroneous exercise of it. It is laid down in Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) Cal. 166 that where a decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Walmsley J., who delivered the judgment of the full bench, was careful to point out that it is only within these narrow limits that the executing Court is authorised to question the validity of a decree. Even this power of the executing Court to question the validity of the decree was denied in S.A. Nathan v. S.R. Samson I.L.R. (1931) Ran. 480. After reviewing a large number of cases, Sir Arthur Page C.J. dissented from Gora Chand's case, and came to the conclusion that an executing Court can in no case go behind or question the validity of the decree it is called upon to execute. In Kalicharan Singha v. Bibhutibhushan Singha I.L.R. (1932) Cal. 191, Costello J. preferred this view to that of the full bench of his own High Court in Gora Chand's case. In the later case of Bepin Behary v. Mohit Kumar : AIR1942Cal496 , Sen J., after referring to the dissent expressed by Costello J., felt himself bound to follow the law as laid down by the full bench in Gora Chand's case. Gora Chand's case was considered by this Court in Karashiddayya Shiddayya v. Shree Gajanan Urban Co-operative Sank, Ltd. (1942) 45 Bom. L.R. 553 to which I was a party. Broomfield J., who delivered the judgment, observed that the view taken in Gora Chand's case that, when a decree is made by a Court which 'apparently' had not jurisdiction to make it, the executing Court was entitled to refuse to execute it, was accepted in Rabindranath Chakrabarti v. Jnanendramohan Bhaduri I.L.R. (1930) 58 Cal. 1018 which came before the Privy Council in Jnanendramohan Bhaduri v. Rabindranath Chakravarti and though there was no discussion on the point, their Lordships approved of the Calcutta view. But he pointed out that the word 'apparently' is to be construed to mean that the decree appears on the face of it to have been passed by a Court which has no jurisdiction; otherwise, according to the principle laid down in Hari Govind v. Narsingrao Konherrao I.L.R. (1913) 38 Bom. 194 the validity of a decree is not a matter which the executing Court is competent to go into. Even according to Gora Chand's case, the present case does not fall within the narrow limits within which an executing Court is permitted to question the validity of the decree under execution.
8. It was held in The Manager of Sri Meenakshi Devasthanam, Madura v. Abdul Kasim Sahib I.L.R. (1907) 30 Mad 421 that, where a compromise between the parties to a suit embraces matters not relating to the suit, and the decree following such compromise gives reliefs which are not unlawful, but which could not have been given if the suit had been decided after trial, any objection to such decree on the ground that it is in contravention of Section 375 of the Civil Procedure Code, 1882, (corresponding to Order XXIII, Rule 3), must be taken by way of appeal and not in execution of the decree. This was followed in Sabapathy v. Vanmahalinga I.L.R. (1914) Mad. 959 and it was held that a compromise decree, even if it includes matters beyond the scope of the suit, is not ultra vires, and no objection can be taken to the enforcement of the same in execution proceedings. In Lal Singh v. Mohan Singh A.I.R.  Lah. 623 a suit for the demolition of a wall was compromised and the demolition of another wall was agreed upon. That compromise was recorded and a decree was passed for the demolition of the wall which was not the subject-matter of the suit. It was held that the decree was not a nullity and the Court which was asked to execute it could not go behind it. The same view was taken in Muhammad Ismail v. Bibi Shaima : AIR1934Pat203 and Musharaf Hussein v. Agha Munawar Ali A.I.R.  Lah. 7 and it may be taken as well settled that the objection that one of the terms of a compromise decree was outside the scope of the suit is not one for the executing Court to consider. If the Court was not right in including that term in the operative part of the decree, it should have been challenged either by way of review or by way of appeal, but the executing Court cannot go behind the decree.
9. The appeal must, therefore, be dismissed with costs.