JUDGMENT

Boys, J. - This is a plaintiff's appeal arising out of a suit for possession of three quarters of a share in a zamindari. The plaintiff mortgaged the whole of the share to the present defendant's predecessor-in-title. The defendant by purchase at an auction-sale in pursuance of the decree of another person became the owner of three quarters of the share. He subsequently brought a suit for the sale of the remaining quarter for a proportionate amount of the mortgage-debt.

2. In 1917 there was a preliminary decree for sale of the quarter which was followed by negotiations between the plaintiff and the defendant for a settlement. These negotiations resulted in an agreement, according to the terms of which the mortgagor was to pay to the mortgagee the whole amount of the mortgage money plus the price which the mortgagee had paid at his auction purchase of three quarters of the share, and in return the plaintiff-mortgagor was to get back the whole of the share as soon as he bad paid the first instalment. For some unexplained reason but apparently by some body's inadvertence the compromise was not embodied in the final decree which was simply for the sale of a quarter. The present plaintiff, the mortgagor, took objections; but before his objections were finally disposed of in his favour partition proceedings had been instituted in 1922.

3. During this period of these partition proceedings it must be noted that the present plaintiff was endeavouring to get the decree amended so as to embody his compromise. He would naturally, there fore make some application to the partition officer in this respect. He could have applied to the partition officer, whether successfully or otherwise, to give effect to the compromise. He did not do so but applied to the partition officer to postpone proceedings pending the result of the efforts he was making in the civil Court. It would appear (but it may be that we have not all the facts) that this was a very reasonable application, but it was refused and a final partition decree was reached under which in the beginning of 1924 the three quarters share in dispute went to the present defendant, the quondam mortgagee.

4. On 2nd August 1924, that is about six months after the partition decree, the plaintiff was finally successful in getting the decree in the mortgage suit amended so as to embody the compromise and he now sues to get back the three quarters. Both Courts have thrown out the plaintiff's suit on the ground that Section 233(k) debars them from interfering or altering in any way the results embodied in a partition decree.

5. The plaintiff appeals. The rule in Section 233(k) obviously does not require support from judicial authority. It is manifest that there must be number of cases that can be quoted in which that Section has been applied. But it is equally clear that the rule cannot be applied in the sense that a distribution made by a partition decree can never at any time be disturbed whatever may have happened since the partition decree or, however, much new facts may have come into existence. It appears to me, therefore, that one should not blindly apply Section 233(k). If I were satisfied in this case that no new fact had come into being since the partition decree I should of Course unhesitatingly hold that the suit was barred by Section 233(k), but the facts of this case require careful examination. At the date when the partition proceedings were going on the plaintiff had at his back a certain compromise, and it is argued for the defendant that compromise was the basis of his title and that he could have and should have put that compromise to the partition officer, that if he did not do so it was his own fault and he must stand the consequences. The case as it may be stated for the plaintiff-appellant is:

Had I put the compromise to the partition officer he would quite rightly have said 'I am not prepared to act on this compromise for it is the subject of legal proceedings now proceedi