1. In Original Suit No. 96 of 1892 the testator's uncle sought to recover from the present plaintiff possession of certain properties mentioned in the schedule in plaint in that suit on the ground that the will, which purported to deal with the testator's properties, including the house in question in the present suit, was invalid. It was not disputed that the house in question, when the suit of 1892 was instituted, was in possession of a mortgagee. A compromise was entered into under which the present 1st defendant was to redeem on the house and the present plaintiff was to get the house.
2. The District Judge held that as regards the house the compromise was bad. It seems to us that in so holding he placed an unduly narrow construction on Section 375 of the Code of Civil Procedure. In, our opinion the cause of action in the suit of 1892, being the right to the property on the ground of the invalidity of the will, and it being admitted that if the will was good the property in the house passed under the will, the compromise related to the suit within the meaning of Section 375. The District Judge followed the decision in Venkatappa Nayanim v. Thimma Nayanim 18 M.k 410. In that case the Judges observe: It seems reasonable to hold that the words so far as it relates to the suit' in Section 375 must be restricted to relief which the Court could have given in the suit, and will not embrace reliefs which could only have been given in a suit based on a different cause of action.' In the present case it seems to us the relief which the plaintiff claims is not a relief which could only have been given in a suit based on a cause of action different from the cause of action in the suit in which the compromise decree was given. However this may be the point would seem to be concluded in favour of the appellants by the more recent authorities Joti Kuruvetkppa v. Izari Sirusappa 30 M.k 478 and The Manager of Sri Meenakshi Devastanam Madura v. Abdul Kasim Sahib 30 M.k 421.
3. A point was taken on behalf of the respondent that in any view the plaintiff could not claim relief by separate suit, but must proceed in execution of the compromise decree. This point was not taken in the written statement and is now raised for the first time. The relief claimed in this suit is the redemption of the mortgage by the plaintiff. The mortgagee was not a party to the suit in which the compromise decree was entered into. We are of opinion that this objection fails,
4. We set aside the decree of the District Judge and restore that of the Murisif.
5. The appellant is entitled to his costs throughout.