1. As a doubt was entertained whether a decree in terms of the compromise could be passed after this Court has rendered its judgment in the appeal, and an application for leave to appeal to Supreme Court is pending, the learned counsel on both sides placed before us the following authorities on this question.
2. In Aghora Kumar Ganguli v. Mohomed Musa, (1910) 5 Ind Cas 723 an appeal was heard by a Divisional Bench of the Calcutta High Court, and leave had been granted to the plaintiff to appeal to His Majesty-in-Council, and at that stage an application was filed for amendment of the decree in so far as it related to costs. One of the contentions raised was that inasmuch as leave had been granted to appeal to the Privy Council, it was not competent to the High Court to amend the decree. Mookerjee and Teunon, JJ., held that that contention was groundless, and that O. 45 R. 13, C. P. C. does not in any way curtail the powers of the High Court in respect of cases in which leave to appeal to the Privy Council had been granted. It was pointed out that Sec. 152 C. P. C. expressly provides that an order for amendment may be made by the High Court at any time and that though leave had been granted the transcript record had not been sent to England. On those grounds it was held that the Court retained jurisdiction to amend the decree.
3. The next decision is Brahamdeo Singh v. Harmanoge Singh (1914) 26 Ind Cas 946 also of the Calcutta High Court. In that case, it was argued that the High Court became functus officio when an appeal to the privy Council was lodged. and therefore, the decree of the High Court could not be amended thereafter. That contention was rejected on the ground that Section 152 C. P. C. empowered the Court to amend the decree at any time.
4. These two decisions were followed by a Bench of the Lahore High Court in Wazir Chand Trikah v. Nathu Ram, AIR 1929 Lah 427. The facts in that case were that the appellants obtained leave to appeal to the Privy Council but the transcript record had not been sent to England. At that stage, the parties settled their disputes by a compromise, and they applied to the High Court for amendment of the decree in accordance with the terms of the compromise, Shadi Lal C. J. and Skemp, J., followed the above two cases and held that the application for the amendment of the decree even by reason of la compromise arrived at between the parties is competent, and, accordingly, passed a decree in terms of the compromise.
5. There is no rule of the Supreme Court brought to our notice preventing a compromise decree being passed in the circumstances of the instant case.
6. We respectfully follow the decision of the Lahore High Court and hold that this Court has jurisdiction and power to pass a decree in terms of the compromise, even though the application for leave to appeal is still pending consideration of this Court, and leave has not yet been granted. As Sri Y. G. Krishna Murthy, the learned counsel rightly submits, compared to the facts in the Lahore case, the Principle laid down therein should apply in fortiori to the case before us, as in that case leave had been granted by the High Court, though the records had not been sent to the Privy Council, while in the instant case, leave has not yet been granted.
7. A decree will, therefore, issue in terms of the compromise in so far as it relates to the subject-matter of the appeal. It is needless to point out that this decree will be appended to the decree already passed in the appeal.
8. Petition granted.