1. Heard Mrs. R. Choudhury, the learned counsel for the petitioners as well as Mr. SS Sharma, the learned senior counsel for the respondents No. 1 to 6 and Mr. D. Doley, the learned Govt. Advocate for respondents No.7 to 9. None appears for the respondent No.10.

2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 12.08.2016 passed by the learned Munsiff, North Salmara, Abhayapuri, in Title Execution Case No.7/2015 thereby rejecting the petition filed by the petitioner under Section 47 of the Code of Civil Procedure.

3. The learned counsel for the petitioner projects that the predecessor-in-interest of the respondents No.1 to 6, namely, Late Nur Islam filed the Title Suit No.24/2012 wherein the present petitioners were arrayed as defendants No.1 to 8 in the plaint. The suit land was a plot of land measuring 1 Bigha 2 Katha 2 Lechas covered by Myadi Patta No.256, Dag No.48 in the village- Kheluapara, Part-VII, Sadar, Bonitamari, PS- Jogighopa in the district of Bongaigaon. It is stated that the plaintiff and the defendant No.9 (respondent No.10 herein) entered into a compromise and by filing Petition No.1286/14 under Order XXVI Rule 9 read with Order XXIII Rule 3 CPC the said parties agreed for a joint survey of the suit land by appointing a Commissioner, and that if the suit land is found to be Patta land then the defendants and their servants, agents, workmen, relatives etc. would vacate the same by demolishing and removing the houses and other construction therefrom in favour of the plaintiff and if the suit land is found to be Govt. Khas land, then the plaintiff will be debarred from claiming the same.

4. The learned counsel for the petitioners has submitted that the present petitioners did not sign the compromise and they came to know about the decree in the said suit only when in the connected execution proceeding, the decree holders came to the suit land to evict the petitioners. Therefore, under the said circumstances, the petitioners filed an application under Section 47 CPC on the ground that the decree was not executable against them as the compromise entered between the plaintiff and the respondent No.10 herein would not bind them and that the decree was not binding upon the petitioners herein. It is submitted that the learned Executing Court after hearing both sides by the impugned order dated 12.08.2016 held that as the petitioners remain unrepresented at the time of compromise, therefore, the decree was binding on them.

5. The learned counsel for the petitioners relying on the case of Gurpreet Singh vs. Chatur Bhuj Goel, AIR 1988 SC 400 and Ramchandra Bhikchand Nahar and another vs. Narhar Maruti Udavant and others, AIR 1996 BOM 338, has submitted that since only one of the defendant had entered into the compromise, the decree cannot be executed against the other defendants No.1 to 8 (i.e., the petitioners herein), who are not bound by the decree.

6. Per contra, the learned senior counsel for the respondents No.1 to 6 has argued that the petitioners herein took the risk of remain ex-parte in course of the trial of the suit. It is also submitted that the compromise between the plaintiff and respondent No.10 herein was bonafide and as the petitioners had remained absent in the suit, there is no way to escape the decree.

7. In order to appreciate the submissions advanced by the learned counsel for both sides, it is required to refer to the provisions of Order XXIII Rule 3 of CPC, which is quoted below:

“3. Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance t