Terms of compromise that do not relate to the suit cannot be enforced in execution of the decree, but may be enforced as a contract by a separate suit.

P. K. MOHANTI, J.

( 1 ) THIS Civil Revision arises in the following circumstances:

( 2 ) OPPOSITE party No. 1 is the first wife and opposite parties 2 and 3 are the minor daughters of the petitioner. The opposite parties filed Title Suit No. 64 of 1969 in the court of the Subordinate Judge, Sambalpur claiming future and past maintenance at the rate of Rs. 160/-per month (Rs. 100/- for opposite party no. 1 and Rs. 60/- for opposite parties 2 and 3 ). They also claimed that the immovable properties described in Schedule A of the plaint should foe charged for realisation of the decretal dues. The suit was compromised on the terms that all the movable and immovable properties of the defendant-petitioner should be divided into four equal shares. The defendant and his mother together would take one share, his second wife Padmavati one share, his son radheshyam Patel one share and the plaintiff No. 1 the remaining share to which she would have full title in lieu of her claim for future maintenance. It was also agreed between the parties that within two and half months from the date of compromise the movable and immovable properties of the defendant would be divided and the costs of registration and preparation of map etc. would be borne by the defendant and on defendant's failure to get the properties divided within the stipulated period, the plaintiff No. 1 would get her share partitioned through court by appointment of a Commissioner. As regards past maintenance it was agreed that the defendant-petitioner would deliver 25 pudugs of paddy and Rs. 400/- in cash within 21/2 months from the date of compromise failing which the plaintiffs would be entitled to realise the same by execution.

( 3 ) THE order passed by the learned Subordinate Judge on the petition of compromise is quoted below:

"i have perused the terms contained in the compromise petition. There are many matters in the petition which do not relate to the subject-matter of the suit. I would therefore record the compromise in so far as they relate to the subject-matter of the suit. The suit is decreed in terms of the compromise in so far as they relate to the suit. The compromise petition in so far as they relate to the claim in the suit do form part of the decree. "

( 4 ) ON 13-3-74 the plaintiffs filed a petition that though defendant No. 1 delivered 25 pudugs of paddy and paid Rs. 400/- in cash towards the arrears of maintenance he had not taken any steps for partition of, the movable and immovable properties within the stipulated period and was avoiding to part with a share of the property to the plaintiffs and was concealing his movables with a view to depriving the plaintiffs of their legitimate claim to a share therein. They prayed for appointment of a Commissioner for preparing an inventory of the movables and for partition and separate possession of the plaintiff No. I. The defendant filed counter contending that the compromise was unlawful inasmuch as the plaintiff No. 1 being the wife could not claim partition from her husband and that the partition of the joint family properties could not 'be effected behind the back of the other coparceners and that these terms do not relate to the suit.

( 5 ) UPON hearing both the parties the learned Subordinate Judge overruled the objections raised by the defendant observing that all the terms of the compromise had been made operative part of the decree and directed for appointment of survey knowing Commissioner for effecting partition. Aggrieved by this order, the defendant has come up in revision.

( 6 ) IT is urged on behalf of the petitioner that the terms of the compromise regarding partition of movable and immovables are quite foreign to the suit and can only be enforced by a separate suit for partition and not otherwise.

( 7 ) ORDER 23, Rule 3, C. P. C. provides:

"where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement of compromise, or where the def