1. This appeal arises out of a suit for recovery o possession of certain parcels of land on the allegation that the plaintiffs got a decree in respect of them in 1908 but from which the defendants subsequently dispossessed them. The facts are that in 1908 the plaintiffs brought a suit against the defendants and other persons for recovery of 4 pakis of land measured according to the standard called Nalkarsha rod. In that litigation they finally got a decree for 3 pakis of land according to that measurement, namely, Nalkarsha measurement. They put that decree in execution when a Commissioner was appointed by the Executing Court to deliver possession to the plaintiffs. The Commissioner felt some difficulty in regard to the measurement to be applied and the plaintiffs set up a Patlai rod of 14 cubits 1 inch, while the defendants set up the Nalkarsha of 13 cubits. The Commissioner made a compromise with the consent of the parties by which the length of the rod was fixed somewhere between these two figures and, according to that measurement, he delivered possession to the plaintiffs of 3 pakis of the land which, according to Nalkarsha measurement, came to 3 1/2 pakis. Subsequently, the defendants dispossessed the plaintiffs from the whole of 3 1/2 pakis. The plaintiffs got a decree for 3 pakis according to Nalkarsha measurement, and the only point in issue is with regard to the plaintiff's right to recover the bigha remaining.
2. The Trial Court gave a decree to the plaintiffs holding that the defendants are bound by the result of the previous litigation. 111 appeal the learned Subordinate Judge has reversed that decree holding that the plaintiffs in the previous suit brought a claim for 4 pakis of Nalkarsha land while they got a decree for 3 pakis of Nalkarsha land, and therefore, so much of the order of the Executing Court as purported to put the plaintiffs in possession of 3 1/2 pakis was not right and could not be enforced. In this view of the matter he held that the plaintiffs ate entitled to 3 pakis and dismissed the suit for the remaining 1/2 paki.
3. On appeal several objections were taken to the decision of the Court of Appeal below. It is urged that under Section 47, Civil Procedure Code, the defendants are not entitled to object to the plaintiffs' right to recover the whole 3 1/2 pakis. I may here mention that one of the defendants, namely, defendant No. 3, was not a party to the agreement before the Commissioner in '$he previous execution proceeding as to the length of the rod used in measuring the land decreed to the plaintiffs in that suit. With regard to this contention it is enough to say that the present suit is not a continuation of the previous litigation but is based upon a subsequent cause of action, namely, dispossession by the defendants long after 100S. The plaintiffs, therefore, must succeed on the strength of his title. The learned Court of Appeal below was perfectly right to the statement of facts that the plaintiffs had brought a suit for 4 pakis and got a decree for 3 pakis and they were not tinder the ptovisions of the law entitled to the regaining 1/2 paki. This contention of the plaintiffs has been met by the learned Judge by observing that Section 47, Civil Procedure Code, bars the suit but it does not prevent the defendant from setting up a defence based upon an objection which could have teen taken under Section 47, and in support of this view reliance is placed on the case of Nil Kamal V. Jahnati Chowdhurani 26 C. 946 : 13 Ind. Cas. (N.S.) 1205, which follows the case of Bhiram Ali v. Gopi Kanth 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Cas. (N.S.) 904. These cases are again followed in the cases of Durga Charan Agradani v. Karamat Khan 7 C.W.N. 607 and Chandramoni Saha v. Halijennessa Bibi 4 Ind. Cas. 168 : 9 C.L.J. 464. It, therefore, seems to be settled that, so far as this Court is concerned, an objection which could have been raised in a suit by the plaintiff under Section 47, can be made the ground of defence in a subsequent suit. The result, therefore, in my judgment, is that, in the first place, Section 47 has no application, because the present suit is based upon a different cause of action and, secondly, it is competent to the defendants to set up the defence, as in this case, without violating the provisions of Section 47, Civil Procedure Code.
4. The next ground of attack is that it ought to have been held that the defendants are barred by the principles of res judicata from raising this question and disputing the plaintiffs' title to the 1/2 paki. So far as one of the defendants is concerned, namely, defendant No. 3, this objection has no force because he was not a party to any compromise between the other defendants and the plaintiffs in the previous litigation. Then the elements constituting res judicata do not seem to be present in this case. It is conceded that Section 11, Civil Procedure Code, does not apply, but, according to the recent decision of the Judicial Committee, the principle which underlies Section 11 is applicable to these proceedings. Admitting that to be so it does not appear that the question of the length of the rod was a point in issue in the previous case before a Court of justice or that there was adjudication on that point. The Commissioner, it appears, unnecessarily raised difficulties in this matter by suggesting that he could not decide what rod was to be used to measure the land, though the decree was for 3 pakis of land according to Nalkarsha measurement. There was no dispute that this Nalkarsha rod was of 13 cubits. Both parties set forward certain measurements and the came to an arrangement by which the length of the rod was taken as of more than the Nalkarsha rod and the plaintiffs got more than they were entitled to. In this state of facts, I think the principle of res judicata is not applicable. The next attempt is to make these defendants bound by the previous compromise. It is argued in answer that the Executing Court is not competent to enlarge, extend or modify the decree even by consent of parties subsequent to the decree unless it is in adjustment of the decree. In my opinion this view of the law ought to prevail. It seems reasonable that the Court which takes upon itself to execute the decree is authorized by law only to execute the decree as it stands irrespective of any other circumstance, as for example, the agreement between the parties to modify the decrees. Take for instance, a decree is passed for the sum of Rs. 5,000 in favour of the plaintiff; it is absurd to assume that the Court in execution would be justified to execute a decree for Rs. 10,000 because the parties agree between themselves that the judgment-debtor should pay Rs. 10,000 to the decree-holder. It seems to me that any such compromise may afford a cause of action for a separate suit, but it cannot invest the Executing Court with jurisdiction to execute the decree which he was not called upon to do. In connection with this contention the case of Kanhya Lall Pundit v. Court of Wards Rajah Puddo Lal Bhunj 16 W.R. 275 : 14 B.L.R. 291n would seem to be in point. It may also be observed that Order XXIII, which deals with adjustment of suits, is not applicable to execution proceedings. The only adjustment of decree of which the Execution Court can take cognizance is the adjustment contemplated by Order XXI, Rule 2. In this view of the matter, we do not think that there is much force in this contention. As I have observed, one of the defendants was not a party to the arrangement in the previous suit by which the plaintiffs got more than they were entitled to, and in the present case it is difficult to divide the interests of the several defendants.
5. One other point has been raised, namely, that the order of the Court of Appeal below that the parties should bear their own costs throughout is bad on principle. I am of opinion that, considering the course the litigation has taken, it was in the right exercise of the discretion of the Court of Appeal below that this order was passed. I do not see any reason to interfere with it.
6. As all the objections taken by the appellants fail this appeal must be dismissed with costs.
7. I agree.