1. This case arises as follows-The appellant before us who is the plaintiff was the plaintiff in a suit for partition in 1902. That suit was at first dismissed, but was decreed in appeal by the High Court which settled the shares of the parties in the usual way. An appeal was preferred to the Privy Council by the defendants, the present respondents. Then the parties executed an ekrarnama the effect of which was to anticipate the final decree that might be passed in the case by in fact partitioning the property by metes and bounds. The plaintiffs accordingly did not appear before the Privy Council thinking that the matter was at an end. The Privy Council subsequently dismissed the appeal there by leaving the decision of this Court in full effect. The defendants subsequently applied to the Subordinate Judge to have the ekrarnama recorded and that was accordingly done and his decision is now before us under appeal. Having heard the arguments on both sides and the facts laid before us we are of opinion that the defendants have got no right to insist upon having the terms of the ekrarnama carried out owing to their conduct in prosecuting the appeal in the Privy Council which must be taken as indicating an intention to go from the agreement arrived at by the karnama a decision to which the plaintiffs are now entitled to hold them. The circumstances under which the appeal was prosecuted before the Privy Council have not been very clearly laid before us : but we cannot suppose that the defendants can have expected at that time to have the provisions of the ekrarnama carried out.
2. Another objection to the order of the Subordinate Judge is that he has not found that the ekrarnama is a settlement for the benefit of the infants concerned in the case. The order is also defective on that point : but the point on which we decide the appeal is the prosecution of the appeal in the Privy Council after the ekrarnama had been executed.
3. The result is that this appeal is allowed and the order of the lower Court is set aside.
4. The appellants are entitled to their costs in this Court and also in the Court below. We assess the hearing fee in this appeal at five gold mohurs.
5. As a result of this decision the proceedings in the partition will be proceeded with in the ordinary course.
6. The record will be sent down to the lower Court as early as it is convenient.