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Madras High Court
(Upputuri) Punnayya And Anr. vs (Polavarapur) Lingayya And Ors. on 3 May, 1927
Equivalent citations: AIR 1928 Mad 496
Author: Ramesam


JUDGMENT

Ramesam, J.

1. In revision petition, I am bound by the finding of the Subordinate Judge that the compromise was, as a fact, entered into by the plaintiff. I may add that I am of opinion that the postcards Exs. B and C are genuine and therefore, agree with his finding.

2. The razinama is that the suit should be withdrawn. This razinama is certainly not bidding on plaintiff 2. The question is whether plaintiff 1 should be held to be bound by St. Mr. Raghava Rao at first contended that plaintiff 1 is bound by it so far as his share is concerned. But this amounts to splitting, up the compromise into two separate-compromises and the facts do not justify it. The decision in Venkata Rao v. Tuljaram Row A.I.R. 1922 P.C. 69, shows that no portion of the joint estate is bound by the compromise. Mr. Raghava Rao then contended that plaintiff 2 may press his claim for the whole of the suit property and he would limit his contention to plaintiff 1 only and not his share of the property. But this seems to be a distinction by which nothing is gained. If the whole suit is to be tried, I do not see any object in saying that plaintiff 1 (though not his share) is bound. Moreover, there is Order 23, Rule 1, Clause (4) which shows that one plaintiff cannot withdraw from a suit without the consent of the others. If plaintiff 1 wished to withdraw, he could’ not do so as plaintiff 2 is a minor, and the next friend is plaintiff 1 himself. In all the circumstances I think the best course is to give no effect to the compromise and allow the whole suit to proceed. But plaintiff 1 will have to refund Rs. 100 to the defendants. To this extent the Civil Revision Petition is allowed.

3. If the plaintiffs succeed and in the final decree they get mesne profits, the plaintiff’s half-share of the profits will be diminished by Rs. 100, and, if it be-less than Rs. 100, there will be a direction in the decree directing the plaintiff to refund the balance to the defendant.

4. If the plaintiffs do not succeed, the final decree will contain a direction directing plaintiff 1 to refund the sum of Rs. 100 to the defendant. In this Court each party will bear its own costs.


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