1. The question in this appeal is, whether the plaintiff decree-holder is entitled to execute by way of a darkhast the compromise decree in suit No. 289 of 1912 against the present respondent's deceased uncle Abaji Khanderao Peshwe, the defendant in that suit.
2. The plaintiff-appellant and the deceased Abaji Khanderao had both a share in the inam of Mouje Kole Vihure. The plaintiff filed suit No. 289 of 1912 against Abaji claiming that Abaji was wrongly officiating and had granted remissions which he had no authority to make and claimed damages and injunction. The parties compromised, and the compromise was embodied in the decree. Abaji died and the plaintiff seeks to execute the present decree against his nephew the present defendant Sakharam. on the ground, according to the darkhast, that he was the heir and the survivor of Abaji. Sakharam put in his written statement claiming that he was not bound by the decree against Abaji and that it. was only good during the life time of Abaji, but he did not explicitly deny that he was the heir and the survivor. Nor did he set up any independent right to officiate in himself different from the right of Abaji and his branch. The plaintiff applied that under the decree Abaji's turn ended during the five years from 1918 to 1923, and that the plaintiff was entitled to officiate for the five years from 1924, and not the present defendant Sakharam.
3. The main objection of law to this application raised by Sakharam was that the clause in regard to these turns was outside the scope of the suit and could not therefore be executed in this darkhast. The only two issues raised in the trial Court are (1) whether the decree is not executable, and (2) whether the darkhast is time-barred. The trial Court held in favour of the plaintiff and ordered the darkhast to proceed. The lower appellate Court held, on the authority of Hemanta Kumari Debi v. Midnapur Zamindari Co. ILR (1919) Cal. 485, 22 Bom. L.R. 488., that this portion of the decree was outside the scope of the suit, and therefore was not executable. It also observed that Abaji was not sued in his representative capacity as the manager of the joint family, and, therefore, the decree did not bind the present respondent Sakharam. The plaintiff decree-holder Bajirao appeals.
4. It is argued on behalf of the appellant that if this Court upholds the view of the lower appellate Court, it should allow the present application to be converted into a suit. On the ground as to whether the present decree can be executed as against the defendant-respondent Sakharam, the appellant expressly sought to execute it on the ground that Sakharam was the heir and the survivor. If Sakharam wished to resist execution on the ground that he was not the heir or the survivor or that he had a claim to officiate from 1924 independently of the turn enjoyed by Abaji and his branch, he ought to have said so and raised issues on the point. But he has failed to do so. Even now he has not stated what other claims he has except the claim of the branch of Abaji. From a perusal of the written statement filed on his behalf it appears that he has merely resisted execution on the ground that he was not a party to the decree and that the decree was binding on Abaji during his lifetime, which is a very different matter. Under these circumstances, whether Abaji was or was not sued expressly in his representative capacity, on the written statement as it stands, the decree would be binding on the present respondent Sakharam, unless he put forward his claim to a turn independently of the branch of Abaji. Aa he failed to do so, the lower appellate Court was not, in my opinion, right in allowing him to raise that contention. That contention for the respondent was not raised in the written statement or as an issue in the trial Court, and cannot now be considered.
5. On the main question as to whether the portion of the decree in regard to the turn for five years from 1924 is executable, the lower appellate Court says: 'And even the learned pleader for the respondent had to concede that it did as a matter of fact include matters which did not relate to the suit'. Such a concession, if made, is not a pure concession of fact but largely a concession of law by which the appellant is not bound in second appeal: Krishnaji v. Rajmal ILR (1899) 24 Bom. 360, 2 Bom. L.R. 25. It need not further be considered.
6. On the merits, the general rule is that an executing Court cannot question the decree sought to be executed except on the score of patent want of jurisdiction : Gora Chand Haldar v. Prafulla Kumar Roy ILR (1925) Cal. 166.; and, as pointed out by Walmsley J. at page 173, want of jurisdiction is a very different matter from the erroneous exercise of it. In the present case it is impossible to say that the decreeing Court had no jurisdiction to record the compromise decree under Order XXIII, Rule 3, Civil Procedure Code. It was, therefore; very doubtful whether it was open to the lower Courts to consider this question at all. If Abaji thought that this turn did not 'relate to the suit,' he could have opposed its incorporation in the decree before the decreeing Court or in appeal. It was not open to him and his heirs to raise the question in execution proceedings. On the authorities as they stand, the law not merely entitles the parties but compels the Court to record a compromise in accordance with the terms 'so far as it relates to the suit.' Where it is not so and is plainly outside the suit and cannot be said to 'relate to it,' the Court may refuse to incorporate it: Ruttonsey Lalji v. Pooribai ILR (1883) 7 Bom. 301, But where it is a consideration of the compromise and therefore intimately connected with it, the words 'that relates to the suit' are sufficiently wide 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: Vishnu v. Sadashiv : AIR1925Bom509 , Joti Kuruvetappa v. Izari Sirusappa ILR (1907) Mad. 478, Gobinda Chandra Pal v. Dwarka Nath Pal ILR (1908) Cal. 837, and Karu Mian v. Tejo Mian (1917) 3 P.L.J. 43, a view which derives further support from the decision of the Privy Council in Mehdi Ali Khan v. Ghanshiam Singh : (1927)29BOMLR1376 subsequent to the decision in Hemanta Kumari Debi v. Midnapur Zamindari Co. ILR (1919) Cal. 485, 22 Bom. L.R. 488 These observations in the last case, it should be noticed, are negative and do not in any way limit a liberal construction of the words 'so far as it relates to the suit.' It is obviously not the policy of the law to discourage compromises by introducing obstacles in the way of their being embodied as decrees. The question, therefore, in the present case is whether this particular clause as to turns relates to the suit or whether it does not. That question, as was observed in Gobinda v. Dwarka, must be a question dependent upon the facts of each case. The grievance of the plaintiff-appellant in the suit was that the deceased defendant Abaji had been managing on behalf of himself and other sharers for about ten years, and he had, without consulting the other co-sharers, given unauthorised remissions which the appellant sought to recover as well as an injunction. That claim to recover the amounts which he alleged were wrongly remitted by the mismanagement of Abaji he gave up on condition that Abaji consented to end his own management in 1923 and give the appellant the management for another five years. It is impossible in my opinion, to say that such a compromise by which the appellant on the one hand gave up his claim to damages in respect of a certain amount wrongly remitted, and Abaji on the other hand gave up what claim he might have had to officiate for five years from 1924, were outside the scope of the suit. They clearly related to the suit and were justly embodied in the compromise decree. In this view, therefore, even on the observations of their Lordships of the Privy Council in Hemanta Kumari Debi v. Midnapur Zamindari Co. and on the authorities stated above, this term in the compromise decree is as executable as the rest.
7. On the question of limitation under the decree, the turn commenced from 1924 and the darkhast was given in December 1926 and is, therefore, in time as the trial Court held. The lower appellate Court has not considered the point, and in the view I have taken, it is not necessary to remand the appeal at this stage.
8. The appeal is allowed, the order of the lower appellate Court set aside, and the order of the trial Court restored with costs throughout on the respondent.