1. This suit was brought to establish the plaintiff's title to the land, which he got by virtue of a decree passed in a prior suit brought for specific performance of a contract to sell.
2. Defendants Nos. 3 and 4, who are appellants in this second appeal, allege that they are not bound by the decree in Original Suit No. 51 of 1907, on the ground that it was a decree upon a compromise to which they were not parties. This appeal has been argued to a great length on the assumption that it was a decree passed with the consent of parties to which Section 96(3) of the Code of Civil Procedure would apply. But it appears that what happened was that the 1st defendant made a statement on oath in the presence of the Pleader for defendants Nos. 1 to 4 that he and defendants Nos. 2 to 4 had agreed to execute a sale-deed in favour of the plaintiff according to the prayer in the suit. The plaintiff also made a statement on oath confirming this. The Court thereupon directed a decree to be made in accordance with the agreement of the parties by which the suit was thus proved to have been adjudicated. The order passed by the Court was apparently passed under Order XXIII, Rule 3. The defendants, though they must through their Pleader, have been aware of the result of the suit, did not prefer an appeal under Order XLIII, Rule 1(m), or take any other step to have the order which affected them adversely, set aside. It is not now urged that the plaintiff obtained the decree by fraud or collusion. It is simply argued that these defendants are not bound by a compromise to which they were not parties. With this, I cannot agree. They were parties to the prior suit and the decree passed therein having become final, they are debarred from questioning it. In this view the second appeal ails and is dismissed with costs.
3. This second appeal has been argued at great length on the ground that the decree which appellants wish to avoid was a decree passed in terms of a compromise. From the judgment in the suit and the decree (Exhibits VII and V) and 1st defendant's statement (Exhibit IV) it is clear that the decree was passed under Order XXIII, Rule 3, and consequently the arguments to show that the appellants are not bound by the decree because they were not parties to the compromise, are useless. The language of the District Judge, i.e., 'if the adjudication made against them on the basis of the consent given by their father was illegal', shows that he also treated the decree as one under Order XXIII. Appellants not having appealed against the order recording the compromise under Order XXIII, Rule 3, allowed the decree to become final and consequently the District Judge was justified in his finding that the appellants were estopped. I agree that the second appeal should be dismissed with costs.